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

Equal Employment Opportunity Commission

Jun 15, 2021

Appeal No. 2020002850 (E.E.O.C. Jun. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Claud R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020002850 Agency No. HS-CBP-01119-2018 DECISION On March 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 16, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 (CBPO) at the Agency’s Office of Field Operations, Montreal Preclearance facility in Montreal, Canada. On May 25, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him based on race (Asian), national origin (Burmese), and in reprisal for prior protected EEO activity when: 1. beginning in the summer of 2017 and continuing, he was subjected to harassment when the following incidents occurred: 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. 2020002850 2 a. in or around the summer of 2017, CBPO-1 stared down Complainant and grinded his teeth, in an effort to intimidate Complainant, while passing him near the Baggage area; b. in or around September 2017, the Chief bit his lip, moved toward Complainant, and appeared to be challenging him after Complainant returned to complete training and/or recertification on a computer; c. on March 4, 2018, Supervisory CBPO-1 (SCBPO-1) glared at Complainant for approximately 20 seconds, with a scowl on his face; d. on March 27, 2018, CBPO-2 questioned Complainant and yelled at him after Complainant returned to work in Secondary Baggage; 2. from November 2017 and continuing, Complainant was assigned additional duties outside of his assigned duties, such as passport stamping, transit, and Automated Passport Control (APC); 3. from November 2017 and continuing, Complainant was intentionally kept busy with work duties, and as a result, was not allowed to take his breaks; 4. from November 2017 and continuing, Complainant was intentionally kept busy with work duties so that he would not be permitted to take 59 minutes of administrative time and leave his shift early before his regularly scheduled days off; and 5. on May 1, 2018, CBPO-3 ordered Complainant to assist in Primary Passport Control, and after returning to his regular assignment in Secondary Baggage, Complainant was not given support to complete a backlog of compliance examinations, in addition to being assigned additional work.2 After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on December 16, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed.3 2 The record reflects that Complainant’s reprisal claim relates only to claim 5. 3 The Agency additionally asserts that Complainant filed his appeal outside the 30-day time limitation, and therefore his appeal is untimely. The Agency specifically asserts that it served its final decision to Complainant at his P.O. Box address. However, the record does not contain a copy of the tracking postal receipt representing that the final decision was delivered to Complainant’s P.O. Box address. Where, as here, there is an issue of timeliness, “[a]n agency 2020002850 3 ANALYSIS AND FINDINGS Disparate Treatment: Claims 2 - 5 A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Department of Community 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, during the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Complainant was a CBPO and was assigned to Montreal Preclearance during the relevant period. While station at Montreal Preclearance, Complainant’s primary duties were border security- related, with an emphasis on anti-terrorism ad anti-smuggling efforts, immigration, trade compliance, and agriculture protection. The Supervisory Customers and Border Protection Officer was Complainant’s supervisor. Regarding claim 2, Complainant asserted that from November 2017 and continuing, Complainant was assigned additional duties outside of his assigned duties, such as passport stamping, transit, and Automated Passport Control (APC). 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). In this matter, we find that the Agency has not met its burden. 2020002850 4 Supervisory CBPO (SCBPO-1) explained that because of the bid and rotation process outlined in the Collective Bargaining Agreement (CBA), Complainant was assigned to the Passenger Processing work unit. SCBPO-1 noted that this work unit consists of the following duties: 1) primary processing; 2) Automated Passport Control (APC); 3) In Transit Passport Control (ITPC); 4) Passport Control Secondary; 5) Baggage Control Secondary; and 6) Triage Desk. SCBPO-1 noted that daily assignments are prepared for four days in advance to meet requirements of the CBA. However, workloads in the different areas of the Passenger Processing unit may shift the day of and supervisors will adjust accordingly, assigning officers to where the most urgent need is. He also noted that Montreal Preclearance typically assigns two officers each to both secondary areas (passport control and baggage control) with the understanding that these officers may be relocated based on workload demands, and to other areas of their work unit. In addition, SCBPO-1 stated that this would include shifts in volume of incoming travelers in the Primary, APC, and ITPC areas. Regarding claim 3, Complainant alleged that from November 2017 and continuing, Complainant was intentionally kept busy with work duties, and as a result, was not allowed to take his breaks. SCBPO-1 asserted that Complainant was provided opportunities for breaks. He noted that supervisors do not typically micromanage breaks especially in the secondary environment. Furthermore, SCBPO-1 stated he had been in the secondary area on days when Complainant was assigned to secondary and have found no one present at the secondary counter. He also observed Complainant on his cell phone at his personal desk in the administrative area as well as having observed him eating lunch in the break room during his shift. Regarding claim 4, Complainant claimed that from November 2017 and continuing, Complainant was intentionally kept busy with work duties so that he would not be permitted to take 59 minutes of administrative time and leave his shift early before his regularly scheduled days off. The Supervisory Officer, also Complainant’s supervisor, stated that he offered Complainant to leave early on numerous occasions, and he has stated each time, Complainant is busy and does not want to leave early. He also noted each time Complainant stated he was not engaged in any work that was apparent to him, Regarding claim 5, Complainant asserted that on May 1, 2018, CBPO-3 ordered Complainant to assist in Primary Passport Control, and after returning to his regular assignment in Secondary Baggage, Complainant was not given support to complete a backlog of compliance examinations, in addition to being assigned additional work. The SCBPO explained that she normally rotated the officers assigned to baggage and immigration to assist with the transit line. Regarding Complainant’s assertion that the SCBPO released a named CBP officer just after 1700 hours on May 1, 2018 when there were several baggage examinations to be to be completed, the SCBPO stated she does not recall releasing 2020002850 5 anyone. She further stated that Agency management officials do not normally backfill extra personnel for CPX examinations and make them up when time allows. SCBPO asserted that primary immigration and enforcement referral are a priority. Regarding Complainant’s allegation that on May 1, 2018, he was approximately three hours behind on compliance examinations, SCBPO acknowledged it is a common occurrence. She noted they do not normally have people in baggage control after 1800, and they still had two hours to catch up if they were behind. Complainant failed to prove, by a preponderance of the evidence, that the reasons detailed above provided by Agency management witnesses were actually a pretext designed to mask discrimination. There is simply no evidence to support the conclusion that Complainant’s race, national origin or prior EEO activity played any role in the disputed events. Harassment/Hostile Work Environment Claim: Claim 1 To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race, national origin or prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Complainant claimed that beginning in the summer of 2017 and continuing, he was subjected to harassment when the following incidents occurred: a. in or around the summer of 2017, CBPO-1 stared down Complainant and grinded his teeth, in an effort to intimidate Complainant, while passing him near the Baggage area; 2020002850 6 b. in or around September 2017, the Chief bit his lip, moved towards Complainant, and appeared to be challenging him after Complainant returned to complete training and/or recertification on a computer; c. on March 4, 2018, Supervisory CBPO-1 (SCBPO-1) glared at Complainant for approximately 20 seconds with a scowl on his face; and d. on March 27, 2018, CBPO-2 questioned Complainant and yelled at him after Complainant returned to work in Secondary Baggage. With respect to claim 1.a., Complainant stated at that time he was walking toward the breakroom and he believed that CBPO-1 was coming back from the breakroom. He further stated while he was walking towards SCBPO-1, he was looking at him with grinding his teeth and staring at him. Complainant stated that when he passed by and looked back at him, SCBPO-1 was looking back at me over his shoulder. The Port Director stated that during the March 28, 2018 meeting with Complainant, he noted that Complainant mentioned an officer made a face at him but did not reveal the identity of the officer. He asked Complainant for the name of the officer, but he would not reveal the name of the officer. The Port Director stated when he asked Complainant in what context that the incident occurred, and he was not able to explain the incident. He asserted that he never indicated that that he did not believe what that this incident occurred and repeatedly asked him who the officer was, and he would not answer his questions. The CBPO-1, currently assigned to the Tactical Terrorism Response Team (TTRT), denied staring down Complainant and grinded his teeth in an effort to intimidate Complainant. He further stated that he had interacted with Complainant approximately four times during his tenure at Montreal Preclearance facility. Complainant stated that in regard to claim 1.b., he was assigned in Secondary Baggage Inspection Area and the Chief came to Secondary Baggage Inspection Area to ask him to help out in Transit Area at 1500 hours. Complainant stated at that time he was working on a Virtual Learning Center (VLC) course when the Chief arrived in the Secondary Baggage Inspection Area and asked him to assist in Transit at 1500. Complainant noted that the Chief bit his lips. moved towards him and appeared to be challenging him. Complainant stated, however, there were no witnesses and it was just him and the Chief. The Port Director again noted that he repeatedly asked Complainant if he could explain in what context or what was occurring during the relevant period, and he was not able to indicate an answer but repeatedly stated “what does this mean?” Furthermore, the Port Director stated he never indicated or stated at any time that he did not believe what Complainant stated had not happened. 2020002850 7 The Chief (race, national origin) stated that asking officers in Secondary Baggage Inspection Area is a regular occurrence on most days. The Chief asserted that he does not recall this every taking place. The Port Director stated that Complainant mentioned the incident involving the Chief but did not want to let him know which individual had bit his lip and moved his shoulder/upper body towards him. He further issued the Chief a Memorandum informing him that if he was involved in such alleged behavior against Complainant that the conduct must immediately cease and desist. Regarding claim 1.c., Complainant claimed that on March 4, 2018, Supervisory CBPO-1 (SCBPO-1) glared at Complainant for approximately 20 seconds with a scowl on his face, the Supervisory CBPO-1 denied doing so. Specifically, he stated scowling at an employee would be “highly” immature and inappropriate. SCBPO-1 stated he never scowled or glared at Complainant. The Port Director stated that he issued SCBPO-1 a Memorandum of Instruction informing him that if he was involved in such alleged behavior against Complainant that the conduct must immediately cease and desist. He further stated that the management referral was not closed out locally, but he requested that an independent Fact Finder be assigned to investigate the claim. The record reflects that SCBPO-1 was contacted for a statement by a CBP fact finder and was asked to provide a memorandum. Following an interview with the CBP fact finder, he had not received any disciplinary action. With respect to claim 1.d., Complainant stated that on March 27, 2018, the CBP Officer questioned him and yelled at him after Complainant returned to work in Secondary Baggage, the CBP Officer explained that he walked toward Complainant and asked him whose turn it was to rotate to the In Transit and Complainant explained the current in transit situation and he returned to what he was doing. He asserted that he did not ask Complainant in a loud and angry voice. Furthermore, the CBP Officer did not ask any other employee because Complainant explained the current in the transit situation and he returned to what he was doing. The image which emerges from considering the totality of the record is that there were conflicts and tensions with management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment unless that treatment is the result of discriminatory factors. See Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Here, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his race, national origin and /or prior EEO activity. 2020002850 8 His claim of harassment/hostile work environment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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). 2020002850 9 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 June 15, 2021 Date