[Redacted], Bernice B., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, (Customs & Border Protection), Agency.

Equal Employment Opportunity Commission

Aug 11, 2021

Appeal No. 2020001577 (E.E.O.C. Aug. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernice B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, (Customs & Border Protection), Agency. Appeal No. 2020001577 Hearing No. 450-2017-00293X Agency Nos. HS-CBP-25773-2016 & HS-CBP-00027-2017 DECISION On December 13, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 14, 2019 final order concerning her 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. Complainant worked as a Border Patrol Agent, GS-1896-12, at the Border Patrol Station in El Paso, Texas. On April 4, 2016, Complainant filed a formal EEO complaint (Agency No. HS- CBP-25573-2016) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Hispanic)2, national origin (Puerto Rican), sex (female), and reprisal (prior EEO activity) when: 1. On February 10, 2016, Complainant’s Watch Commander, her second-line supervisor (S2a) questioned her about completing her required online courses even though the 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. 2 Though Complainant identified her race as “Hispanic”, we note that the Commission views “Hispanic” to denote national origin rather than race. 2020001577 2 Supervisory Border Patrol Agent who served as her immediate supervisor (S1a) had already spoken to her about those courses; 2. On February 10, 2016, S1a issued Complainant a memorandum alleging she engaged in unprofessional conduct; 3. On February 17, 2016, another Supervisory Border Patrol Agent (S1b) gave her a hard time when she asked for the access code to the gate of the El Paso Processing Center; and 4. On February 17, 2016, Complainant was assigned to cover two areas of responsibilities by herself. On November 16, 2016, Complainant filed a second EEO complaint (Agency No. HS-CBP- 00027-2017) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female), race/national origin (Hispanic/Puerto Rico), and reprisal (prior EEO activity) when: 5. On August 23, 2016, September 4, 2015, and September 12, 2016, management officials denied Complainant official time to participate in EEO activities; and 6. On May 7, 2017, another Watch Commander (S2b) issued a performance counseling to Complainant for not signing a policy roster on December 12, 2016, while no other agents had been counseled for not signing the policy roster. The complaints were consolidated. Following an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on April 3 and April 4, 2018. On August 16, 2019, the AJ issued a decision finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued its final order fully adopting the AJ’s decision. The instant appeal followed. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by 2020001577 3 demonstrating that he/she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since Agency officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). With regard to incident (1), S2a testified that he was unaware that S1a had talked to Complainant about completing the necessary courses, a fact to which Complainant admitted at the hearing. As to incident (2), S1a testified that Complainant had gotten into a verbal altercation with another agent and both Complainant and that agent were given counseling memoranda for unprofessional conduct. Concerning incident (3), Complainant had forgotten the access code to the processing center, and the on-duty supervisor buzzed her in and later wrote down the code for her. Regarding incident (4), a manager testified that although agents are typically assigned single areas of responsibilities, they are sometimes assigned two or three, and that it was management’s right to assign agents to specific areas of operation in order to address operational needs. With respect to incident (6), S2b testified that he counseled Complainant for twice refusing to follow instructions issued by her first-line supervisor directing all agents to sign an updated policy roster. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Beyond her own assertions, Complainant has presented neither affidavits, declarations, unsworn statements, or hearing testimony from witnesses other than herself nor documents which contradict or undercut the explanations provided by the various named management officials, which cast doubt upon their veracity as witnesses, or which establish the existence of at least one of the indicators of pretext listed above. We note also that the AJ made extensive and detailed assessments of the credibility of the witnesses, finding Complainant less credible as a witness than the supervisors and managers who were called to testify. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. 2020001577 4 See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), Chapt. 9, § VI(B) (Aug. 5, 2015). While Complainant challenges the AJ’s findings, she points to no evidence in the record that tends to undermine the credibility of the Agency’s management witnesses. Further, to the extent that Complainant is alleging that she was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Regarding claim (5), Complainant claims that she had been denied official time sufficient to pursue her EEO complaints. The Commission’s regulations regarding the use of official time are set forth as follows: If the complainant is an employee of the agency, he or she shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information. If the complainant is an employee of the agency and he designates another employee of the agency as his or her representative, the representative shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information. The agency is not obligated to change work schedules, incur overtime wages, or pay travel expenses to facilitate the choice of a specific representative or to allow the complainant and representative to confer. The complainant and representative, if employed by the agency and otherwise in a pay status, shall be on official time, regardless of their tour of duty, when their presence is authorized or required by the agency or the Commission during the investigation, informal adjustment, or hearing on the complaint. 29 C.F.R. § 1614.605(b). Reasonable is defined as appropriate, under the particular circumstances of the complaint, in order to allow a complete presentation of the relevant information associated with the complaint and to respond to Agency requests for information. EEOC Management Directive 110, Chapter 6, § VII(C). The AJ found that on August 23, 2016, the Deputy Patrol Agent in charge of official time requests approved eight hours of official time as opposed to the 10 hours that Complainant requested. As to the request allegedly made on September 4, 2016, Complainant admitted that she did not recall her request for official time on that date, but the AJ found that she was approved for four hours of official time on September 5, 2016, and eight hours of official time on September 7, 2016. On September 12, 2016, the Deputy Patrol Agent denied Complainant’s request for eight hours of official time because Complainant did not follow the established policy of requesting the time in advance. 2020001577 5 However, Complainant was granted eight hours of official time on September 23, 2016, and an additional four hours of official time on October 7, 2016. Ultimately, we find that the record does not support Complainant’s contention that she was denied official time to pursue her EEO complaints. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant was not subjected to discrimination, reprisal, or a hostile work environment 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. 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). 2020001577 6 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 August 11, 2021 Date