[Redacted], Danial B., 1 Complainant,v.Daniel Avila, Acting Commissioner, International Boundary & Water Commission, Agency.

Equal Employment Opportunity Commission

Jul 8, 2021

Appeal No. 2021000366 (E.E.O.C. Jul. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Danial B.,1 Complainant, v. Daniel Avila, Acting Commissioner, International Boundary & Water Commission, Agency. Appeal No. 2021000366 Hearing No. 451-2016-00005X Agency No. USIBWCEE-0110214 DECISION On October 20, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND On September 22, 2014, Complainant was hired as a Realty Officer at the Agency’s Chief of the Boundary and Reality Division in El Paso, Texas, subject to one-year probationary period. On December 3, 2014, Complainant filed formal EEO complaint alleging the Agency discriminated against him on the bases of disability2 and age (over 40) when, effective November 14, 2014, he was terminated during his probationary period. 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 Complainant identified his disabilities as spondylolisthesis, disc bulge, bilateral neural foraminal stenosis, and bilateral nerve root, and hearing impairment. For purposes of this 2021000366 2 After its investigation of the complaint, the Agency provided Complainant with a copy of the reports 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 a decision without a hearing. Complainant responded to the motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. ??The Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS 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. 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. During his probationary period, the evidence of record indicates that Complainant repeatedly used vulgar language in the workplace, made discriminatory comments about race, national origin and ethnic background, gender, and religions, and threatened employees in a vulgar way which created a hostile work environment. The AJ noted that approximately six weeks of Complainant’s employment with the Agency, Complainant’s conduct included the following incidents: a. At least three employees in geographically distant Agency offices reported that on separate occasions, Complainant used the word N-word when referring to African Americans. b. At least three employees reported that on separate occasions, Complainant used demeaning terms when referring to persons of Hispanic descent, as follows: (1) Complainant stated that he and his wife love garage sales but that in El Paso “you had analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. 2021000366 3 to beat all the beaners to the sales;” (2) on October 21, 2014, Complainant told the EEO Officer and another Agency employee that he was “in the river throwing rocks at illegal aliens” and that is why he could not attend EEO training; (3) on October 28 or 29, 2014, Complainant referred to “wetbacks” in front of a Hispanic employee and when employee stated he was Mexican American, Complainant responded “you are one of the good ones;” and (4) Complainant asked the EEO Officer where she was from because of her accent and after she told him that she was from Puerto Rico, Complainant stated that Cubans need to “swim back to their country because they take everything ‘we’ do and own” and Complainant then stated that somebody stole a backpack from his driveway and it must have been an illegal immigrant. c. Complainant commented about Halloween decoration in which the Agency “does not discriminate and is all inclusive and will hang bloody crucifixes on the walls.” d. As early as his second week of employment, an Agency employee was assigned to train and supervise Complainant and noted that, during a training session with several employees, Complainant repeatedly interrupted the training with unrelated stories and inappropriate language within those stories. Complainant’s interruptions prevented the trainer from completing the training. When the training adjourned for lunch, the trainer pointed out to Complainant that his unprofessional and asked him to stop the behavior. However, Complainant’s behavior continued after lunch. e. Two of Complainant’s Hispanic subordinates reported that Complainant used vulgar language to intimidate them, stating to one subordinate “if you fuck me, I will get you,” and to another subordinate, “don’t fuck with me, because if you fuck me over, that’s it and it’s hard to gain trust with me ever again.” f. One of Complainant’s Hispanic subordinates was a union representative and he would refer to her labor union activities as “Union shit.” g. Four of Complainant’s subordinates reported feeling intimidated and fearful of Complainant because of his vulgar and aggressive language. h. Complainant told a Caucasian subordinate that he was “working on getting the only 2 minorities in his office fired” and instructed the subordinate to supervise those employees even after Complainant was informed that the subordinate was not a supervisor and was not to act as one. i. Around October 27, 2014, Complainant told the subordinate to “steam roll” one of his Hispanic subordinates (Subordinate 2) and suggest that Complainant would replace Subordinate 2 with a Caucasian female from another office or if she would not accept the position, Complainant would announce the position for competitive hire. 2021000366 4 j. In front of multiple employees and at different times, Complainant used demeaning adjectives for females and improper references when speaking about the Agency’s female assistant legal advisor. k. Complainant used the word “dick” during a “contentious” meeting with Agency attorneys and Complainant was argumentative and aggressive when the Agency’s female assistant attorney disagreed with Complainant. l. Complainant repeatedly used vulgar language such as “fuck” and “shit” in different meetings with various subordinates and co-workers. The AJ further noted that Complainant denies the reports of his misconduct. According to the Principal Engineer, also Complainant’s supervisor, Complainant was terminated during his probationary period because of his conduct (as described above), not work performance. He stated that the Equal Employment Officer notified him of numerous complaints about Complainant’s continuous use of derogatory comments describing Mexicans and African Americans. The supervisor stated Complainant was counseled about his behavior, but continued his practice of using inappropriate language. With respect to Complainant’s claim that he had disability-related work restrictions, the supervisor asserted that Complainant did not inform him of any work limitations until after he was terminated on November 4, 2014. He also noted that he never received any medical documentation from Complainant. The record contains a copy of the Notice of Termination During Probationary Period dated November 4, 2014, in which the supervisor placed Complainant on notice that he was being terminated effective November 4, 2014. Specifically, the supervisor stated that he determined Complainant’s employment did not promote the efficiency of the public service because you have failed to demonstrate fitness for continued federal employment.” He stated that Complainant continued to use foul language and made derogatory remarks about race in the workplace “even though I counseled you about engaging in such misconduct on October 22, 2014.” The supervisor further stated that he was aware that Complainant had made derogatory remarks about religion and gender resulting a hostile work environment for other employees. In her decision, the AJ determined that Complainant failed “to make a sufficient showing on one or more of the essential elements of his case with respect to which he had the burden of proof, and therefore, the Agency is entitled to judgment as a matter of law.” After careful review of the evidence of record, we conclude, like the AJ, that Complainant failed to prove, by a preponderance of the evidence, that the legitimate, non-discriminatory reasons proffered by Agency management for Complainant’s termination was a pretext designed to mask a discriminatory motivation for the decision. 2021000366 5 Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s decision without a hearing, 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 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). 2021000366 6 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 July 8, 2021 Date