[Redacted], Allan L., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020000663 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allan L.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2020000663 Hearing No. 520-2018-00205X Agency No. HS-CBP-26700-2016 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 20, 2019 final decision 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. BACKGROUND During the period at issue, Complainant worked as a Customs and Border Protection Officer in Beecher Falls, Vermont. On September 30, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on sex (male) and in reprisal for prior protected EEO activity. By letter dated February 23, 2017, the Agency accepted the formal complaint for investigation and determined it was comprised of the following claims: 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. 2020000663 2 1. Beginning on June 19, 2015 and continuing to the present he was subjected to harassment as evidence by the following: a. From June 19, 2015 through June 21, 2015, he was suspended for three days for Negligent or Careless Performance of Duties. b. On May 13, 2016, he was scheduled to work [with another Patrol Officer (C1)] that he had previously informed management that he did not get along with. c. On May 13, 2016, his request for sick leave for the following day (May 26, 2016) was initially denied and he was charged Leave Without Pay for going to a dental appointment, until he provided verification that he attended the appointment. d. On May 27, 2016, Complainant was instructed to submit medical certification as to why he was unable to return to work after attending his dental appointment on May 26, 2016. e. An Agency attorney ignore his November 18, 2016, request for a copy of the findings obtained during the fact-finding inquiry into his allegation that a co- worker harassed him. f. On February 16, 2017, his authority to carry a government issued firearm was revoked and he was placed on light duty. g. Since February 16, 2017, management failed to provide clear instruction to Complainant regarding his duties After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing before an AJ. On July 29, 2019, the AJ issued a Dismissal-Sanctions Order. Therein, the AJ provided a detailed analysis of why she denied Complainant discovery and canceled Complainant’s hearing request. Specifically, the AJ found that Complainant failed to file his Designation of Representative (DOR) form and his Pre-hearing statement by a set deadline.2 The AJ also found that Complainant and his representative initially failed to appear for a scheduled conference on May 14, 2019. On July 5, 2019, the Agency filed a Motion for Summary Judgment. Complainant’s response was due on July 22, 2019. 2The AJ’s April 8, 2019 Notice of Telephonic Pre-Hearing Conference and Order to File Pre- Hearing Statement sets forth that a Discovery Plan was to be part of the Pre-Hearing Statement due on May 7, 2019. The April 8, 2019 Order set forth that if a party fails to propose a discovery plan, discovery may be denied. 2020000663 3 The AJ’s Dismissal sets forth that Complainant’s attorney requested additional time on the date that Complainant’s response was due because of illness. The AJ responded that the requests for postponement did not contain the required medical documentation of a sudden, unexpected emergency that would justify a delay, as well as certification that he had spoken to Agency counsel. The AJ further set forth in her Dismissal-Sanctions Order that Complainant’s attorney responded in an ex parte communication, in which he expressed dissatisfaction with the forum and felt it was “absurd and unreasonable” to require documentation from him because he is a member of the bar and that the AJ’s requirement to contact opposing counsel prior to requesting a postponement requires him to “beg.” The AJ set forth that Complainant’s attorney’s email warned “the time may come that this message requires broader distribution.” The AJ set forth in her Dismissal Order “I will not be intimidated by these tactics. Complainant has demonstrated disruptive, disrespect and threatening behavior that arises to the level of contumacious conduct. He has repeatedly and intentionally refused to comply with the rules of this forum and with the simple but important requirement of my Orders, and then complained bitterly about being called out for it…His conduct reflects an utter lack of respect for the integrity of the EEO process.” Based on the foregoing, the AJ dismissed Complainant’s hearing request and remanded to the Agency for a final decision. The Agency issued a final decision on September 20, 2019 finding no discrimination. Under a disparate treatment analysis for the discrete acts, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish, by a preponderance of evidence, were pretext for discrimination and/or retaliation. Under a hostile work environment analysis, the Agency found that Complainant failed to establish that the alleged incidents of harassment were based on his protected classes. In addition, the Agency found that the alleged incidents are not sufficiently severe or pervasive to constitute harassment. The instant appeal followed. On appeal, Complainant’s attorney asserts that the AJ’s sanction was too harsh. Complainant’s attorney asserts that he had sent emails to the AJ requesting postponement of the telephonic conference. However, these emails were sent to the junk folder of the AJ. In response, the Agency requests that we affirm its final decision finding no discrimination. The Agency asserts that Complainant’s appeal is untimely. The Agency states that the final agency decision was sent to Complainant’s attorney via email on September 20, 2019 and that the certificate of service set forth that it would be presumed the final decision was received on the date it was sent. Thus, the Agency found the appeal should had been filed by October 21, 2019, but was filed on October 25, 2019, beyond the applicable deadline. The Agency asserts that if the Commission finds the appeal to be timely, the final decision finding no discrimination should be affirmed. 2020000663 4 The Agency asserts that while Complainant asserts the final decision relied on unsworn testimony, the Agency asserts that Complainant’s deposition was sworn under oath and the testimony from the witnesses in the report of investigation (ROI) were taken under penalty of perjury. The Agency further stated that the AJ’s Dismissal was proper because Complainant repeatedly failed to follow the AJ’s Orders. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Timeliness of Complainant’s Appeal The Notice of Appeal form signed by Complainant’s attorney indicates that the final agency decision was received on September 25, 2019. The certificate of service for the final decision reflects that it was sent to Complainant’s attorney via email on September 20, 2019. While the certificate of service for the final agency decision set forth that if the document was sent to a party via email, it would be presumed to be received on the date, Complainant’s attorney asserts in the Notice of Appeal form, as set forth above, that the final decision was received on September 25, 2019. The record does not contain documentation such as a “read receipt” indicating that the email containing the final decision was received by Complainant’s attorney on September 20, 2019. Where as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No 05920506 (Aug. 25, 1992). Based on the foregoing, we find Complainant’s appeal filed on October 25, 2019 (thirty days from September 25, 2019, the date Complainant’s attorney received the final decision) to be timely. Dismissal of Complainant’s Hearing Request The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29 C.F.R. § 1614.109 et seq.; EEO MD-110, Chap, 7, § III(D). An EEOC Administrative Judge has the authority to sanction a party for failure to comply fully with an order without good cause shown. See 29 C.F.R. § 1614.109. 2020000663 5 In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree, EEOC Appeal No. 07A00015; Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission has emphasized that the purpose of a sanction is to deter the underlying conduct of the non-complying party. See Barbour v. U. S. Postal Serv., EEOC Appeal No. 07A30133 (Jun. 16, 2005). The factors pertinent to “tailoring” a sanction, or determining whether a sanction is, in fact, warranted, include: (1) the extent and nature of the non- compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process. Gray, EEOC Appeal No. 07A50030; Voysest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005). The AJ did not abuse her discretion in dismissing Complainant’s hearing request. The AJ’s Dismissal Order sets forth, in detail, the reasons for her dismissal. While Complainant’s counsel asserts he emailed the AJ requesting a postponement of the telephonic conference prior to the scheduled May 14, 2019 telephonic pre-hearing conference, the AJ acknowledged this in her July 29, 2019 Dismissal Order and found that even if she had received the emails from Complainant’s attorney, she would have still not granted his postponement request because it failed to comply with her postponement policy as set forth in a prior Order. Specifically, the AJ stated : [a]t the Conference, I realized that an email Counsel for Complainant sent to me on May 9, 2019, 5 days prior to the Conference, in which he did attempt to request a postponement, went into my spam folder, and so I did not receive it. Two other emails he sent me also went into my spam. However, the May 9th request violated my Order’s postponement request requirements in numerous ways. First, Complainant failed to attach documentation of cruise dates claimed to be the reason for the postponement. None of the three emails that ended up in my spam folder contained such documentation. Second, according to the email the cruise apparently ended on May 12th , two days prior to the Conference, and therefore there was no actual conflict. As was demonstrated by Complainant’s actual participation in the Conference on May 14th, there was never a legitimate reason to postpone it. Third, the Complainant failed to include a statement that he had spoken to opposing counsel and had obtained three alternative dates for the conference. Most importantly, Complainant never followed up to make sure the postponement was granted before he decided simply not to appear at the Conference. 2020000663 6 The April 8, 2019 Notice of Telephonic Pre-Hearing Conference and Order to File Pre-Hearing Statement sets forth that all postponement requests shall be accompanied by 1) the reason for the postponement; 2) documentation of the requestor’s unavailability on the date of the proceeding (i.e. travel itinerary, medical documentation etc.); 3) certification that the requestor has attempted in good faith to secure agreement, with all other parties, to three possible alternative dates for the proceeding and 4) three possible alternative dates for the proceeding. The AJ’s April 8, 2019 Order further provided that failure to comply with this Order may result in sanctions. Based on the foregoing and the additional reasons set forth in the AJ’s Dismissal Order (as discussed above), we find the AJ did not abuse her discretion in dismissing Complainant’s hearing request. We now turn to the merits of Complainant’s complaint. Disparate Treatment Analysis A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim (1(a)), Complainant’s three-day suspension, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record contains a proposed suspension for 14 days due to Negligent or Carless Performance of Duties. ROI at 152-154. The proposed suspension cited three incidents related to Complainant’s performance. Complainant, in his deposition, acknowledges that he engaged in these specified performance incidents. Complainant’s Deposition (Comp. Dep) at 49-50. 2020000663 7 The record contains a May 26, 2015 letter from the Area Port Director (APD1) at the time to Complainant. Therein, the APD1 found the charge of Negligent or Careless Performance of Duties to be sustained and reduced the suspension to three days. ROI at 156-158. The record contains a declaration under penalty of perjury from APD1. Therein, APD1 states Complainant was issued the three-day suspension because the charges of Negligent or Careless Performance of Duties was sustained. ROI at 251. Regarding claim 1(b), Complainant being scheduled to work with C1 after informing management that that he did not get along with C1, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. The record reflects that the Agency investigated Complainant claims that C1 harassed him. ROI 704-711. The investigation found no evidence of harassment. ROI at 705. The record contains a declaration under penalty of perjury from a Supervisory CBP Officer (S1). Therein, S1 asserts that, at the time, staffing levels were so low that there was no way to accommodate Complainant’s wishes (not to work with C1) without incurring overtime. ROI at 386. Complainant, in his deposition, acknowledged that the port was very short-staffed. Complainant’s Deposition at 12. Regarding claim 1(c), Complainant initially being denied sick leave for a dental appointment, the record reflects that the Agency articulated legitimate, nondiscriminatory reasons for its action. S1, in his declaration under penalty of perjury, asserted that Complainant did not make a timely request for sick leave and no one was available to relieve him. ROI at 387. S1 stated that he waited until after the scheduling unit was closed and then requested sick leave. Id. S1 asserted that the Port Director subsequently granted him sick leave. Id. The record also contains an email from S1 to Complainant dated May 25, 2016. Therein, S1 asserts that he cannot approve Complainant’s sick leave request for the next day because it was submitted after his shift ended and was not timely enough for him to cover Complainant’s shift. ROI at 27. Regarding claim 1(d), Complainant being required to submit medical documentation for his sick leave, the Agency articulated legitimate, nondiscriminatory reasons for this matter. The record contains a declaration under penalty of perjury from the Assistant Port Director (APD2). Therein, the APD2 asserted that the Port Director authorized six hours of sick leave provided that Complainant present medical certification for the absence. ROI at 357. APD2 asserts that Complainant contacted S1 and advised him he could not work the remainder of the shift because the dentist had prescribed him a narcotic and felt it would not be safe for him to report to duty. ROI at 358. APD2 asserted that Complainant was advised to present medical certification regarding this. Id. APD2 stated that the absence was initially coded as AWOL because Complainant failed to provide the requested medical certification. ROI at 358. Upon submitting the proper medical documentation, Complainant’s absence was changed to paid sick leave. Id. Regarding claim 1(e), that an Agency attorney ignored Complainant’s request for a copy of a fact-finding report pertaining to harassment allegations involving C1, we find that the Agency articulated legitimate, nondiscriminatory reasons regarding this matter. The record contains a declaration under penalty of perjury from a Senior Agency Attorney (SAA). Therein, the SAA asserts while she was a recipient of the email, the email was addressed to the Port Director. 2020000663 8 ROI at 413. SAA asserts that the Port Director emailed her and explained that he received the request from Complainant about receiving a copy of a fact-finding report and routed the request to the Area Port Director. Id. SAA asserts that Port Director informed her that the Area Port Director advised him that she sent the request to Labor and Employee Relations for handling. Id. Regarding claim 1(f), that Complainant’s firearm was revoked, we find that the Agency articulated a legitimate, nondiscriminatory reason for its action. The record reflects that in 2007, approximately ten years before the matter at issue, Complainant received from Agency management a letter informing him that he had exhibited extreme mood swings in the workplace and suggested he contact the Employee Assistance Program. ROI at 100. Complainant referenced this letter in various emails to Agency officials in 2016 and 2017. ROI at 147-149, 19-20, 182-185. In referencing the 2007 letter, Complainant made statements that while management claimed he exhibited extreme mood swings in the work environment, his service weapon had never been removed and questioned “why.” Id. Agency officials expressed concern that Complainant was under stress and possibly experiencing mental stability issues and should be evaluated in a fitness for duty exam (FFDE) to ensure his safety and the safety of others. ROI at 332-334. The record contains a declaration under penalty of perjury from the Assistant Area Port Director (AAPD). Therein, the AAPD asserted that Complainant’s firearm was temporarily removed due to safety concerns based upon emails Complainant had sent. ROI at 325. The record reflects that the Benefits, Medical, and Worklife Division of Human Resources determined that Complainant’s statement lacked sufficient grounds for Complainant to undergo a FFDE and Complainant’s firearm was returned on March 13, 2017. ROI at 1272. Regarding claim 1(g), that Complainant did not receive clear instruction regarding his duties while on light duty, the Agency articulated legitimate, nondiscriminatory reasons for these actions. The Port Director in his declaration under penalty of perjury asserts that while on light duty, Complainant performed cargo processing on the computer, answered the phone and trained in remote vetting procedures. ROI at 265. Complainant, in his deposition, asserted he did not seek clarification of his duties while on light duty. Comp. Dep. at 140. We find that Complainant failed to establish, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions were pretext for discrimination and/or retaliation. In addition, regarding Complainant’s assertion that the final decision improperly relies on unsworn statements in its final decision, we disagree. The witnesses provided declarations under penalty of perjury which are sufficient for this administrative process.3 Hostile Work Environment Analysis To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on 33 The record reflects that Complainant was sworn in for his deposition. Complainant’s Deposition at 4. 2020000663 9 their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). We find that Complainant failed to establish a prima facie case of harassment. As set forth above, under the disparate treatment analysis, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish was pretext for discrimination. Thus, we find that Complainant failed to establish that the actions at issue were based on his protected EEO classes. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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 2020000663 10 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. 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. 2020000663 11 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 August 16, 2021 Date