[Redacted], Alisa M., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Mar 15, 2021

Appeal No. 2020001433 (E.E.O.C. Mar. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alisa M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020001433 Hearing No. 480-2019-00192X Agency No. HS-CBP-02130-2017 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 6, 2019, final order concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Secretary (Office Automation), GS-0318-08, at the Agency’s El Centro Sector Headquarters in El Centro, California. On November 11, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic), sex (female), color (Brown), and in reprisal for prior protected EEO activity when: 1. From October 4, 2016 to February 8, 2017, Complainant was subjected to harassment (non-sexual), when: a. On October 4, 2016, the Supervisory Border Patrol Agent (SBPA) asked a contractor about Complainant’s whereabouts; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020001433 2 b. On October 31, 2016, SBPA moved Complainant from her cubicle area to a reception window where he could maintain visual view of her; c. On November 23, 2016, SBPA provided Complainant with a color-coded chart outlining her daily duties and instructed her to follow this chart moving forward; and raised his voice at Complainant stating, “You’re not doing paralegal duties anymore;” d. On or about April 11, 2017, SBPA failed to forward information to Complainant via email and/or otherwise advise her of an online training opportunity: Microsoft Access Beginners/Intermediate Training; e. On April 12, 2017, SBPA asked a Paralegal Specialist about Complainant’s whereabouts; f. On May 25, 2017, SBPA verbally reprimanded Complainant for changing her lunch hour without his prior approval, and stated he would notify the Acting Assistant Chief Patrol Agent (ACPA) of the incident; g. On or about June 12, 2017, SBPA physically positioned himself to have a direct visual view of, and to observe, Complainant; h. On or about June 16, 2017, Complainant was removed from the Asset Forfeiture Department internal group email list; i. On or about June 16, 2017, SBPA failed to forward information to Complainant via email and/or otherwise advise her of an online training opportunity: Microsoft Excel Beginners/Intermediate Training; j. On June 16, 2017, during a meeting, SBPA communicated the following to Complainant: there was no need for her in the Asset Forfeiture Department; he did not need two support personnel in the department; he did not have a need or a justification to keep her in the Asset Forfeiture Department; there was nothing for her to do; and her refusing to follow orders could be considered insubordination; k. On June 27, 2017, during a meeting, after Complainant stated she felt she was being singled out and treated disparately by being placed in the Sector lobby, SBPA stated he could not place a Border Patrol Agent in the Sector lobby and, appeared to show no remorse when she expressed her belief she was being discriminated against and harassed; l. On or about June 30, 2017, the Acting ACPA did not invite Complainant to attend a pizza party with the Asset Forfeiture employees; m. On or about July 12, 2017, and again on or about August 15, 2017, SBPA did not forward information to Complainant or advise her of an online training opportunity: SEACATS Training; n. On August 15, 2017, after SBPA instructed Complainant that Sector lobby coverage was no longer requested, and she would return to the Asset Forfeiture Department, Complainant asked SBPA what her duties would consist of and he again referred her to the daily duties chart he provided her on November 23, 2016; o. On August 15, 2017, Complainant observed a group photo of the Asset Forfeiture department hanging up from which she was excluded; 2020001433 3 p. On September 11, 2017, a Border Patrol Agent (BPA) took photographs of Complainant at her workstation with his cellular phone as a means to intimidate her for filing a complaint against his friend, SBPA; q. On September 13, 2017, after Complainant sent an email concerning her workplace concerns, SBPA held a meeting in the presence of a union representative and Acting ACPA wherein he was unprofessional, became upset, and remarked that “he was the victim;” r. On or about October 5, 2017, SBPA changed the access door code to the Asset Forfeiture Office; s. On or about November 17, 2017, Complainant was not invited to participate in the birthday cake celebration for three employees in the Asset Forfeiture Department; t. On December 29, 2017, a Special Agent ignored Complainant’s greeting when she passed by her in the Sector lobby; and u. On February 8, 2018, Complainant observed SBPA driving by her residence in a government vehicle with no known official business there, causing her to feel intimidated and harassed. 2. On September 27, 2017, Complainant was notified by the Division Chief Mission Readiness in a management meeting with the Director of Personnel and Finance, Acting ACPA, and the Supervisory Mission Support Specialist, that Complainant was permanently reassigned from the Asset Forfeiture Department to work in the Sector lobby, effective October 1, 2017, after being placed there on a temporary basis on June 14, 2017. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for summary judgment. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2020001433 4 In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020001433 5 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 15, 2021 Date