[Redacted], Dewitt L., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 14, 2022

Appeal No. 2020004234 (E.E.O.C. Apr. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Orville D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021003402 Agency No. HS-CBP-01779-2019 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 April 5, 2021 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 Special Operations Supervisor (SOS), GS- 1896-13, at the Agency’s Laredo Sector (LTR), Zapata Station (LZT) in Zapata, Texas. On July 29, 2019, Complainant filed a formal complaint claiming that the Agency subjected him to retaliatory harassment for prior protected EEO activity2 when: 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 testified that he filed several prior EEO complaints. Specifically, Complainant stated that he filed an EEO complaint in March 2017 and another complaint in August 2018. Complainant indicated that he filed complaints against management officials at the Laredo South Station and these management officials (Sector Level Chiefs) were friends of the Patrol Agent in Charge - Complainant’s second level supervisor at the Zapata Station and the responsible 2021003402 2 1. on May 10, 2019, the Patrol Agent in Charge (PAIC) looked directly at Complainant while stating, “you f-kers hear whatever you want;” 2. on May 20, 2019, during a meeting, Complainant was called “worthless” by the PAIC; 3. on June 19, 2019, during a one-on-one meeting with Complainant, PAIC stated “of course I did some sign cutting, I am sure you f-kers did the same;” 4. on June 25, 2019, the PAIC took Complainant’s government vehicle and assigned to an older vehicle; 5. on June 27, 2019, the Deputy PAIC (DPAIC) informed Complainant he was being detailed to the Tactical Infrastructure (TI), at Laredo Sector Headquarters; and 6. on July 5, 2019, the PAIC ordered Complainant to not make any decisions without going through the DPAIC and threatened to detail him to TI if he did not know enough about the building infrastructure projects at the station. After an investigation, 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 requested a final decision. On April 5, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS To establish a claim of discriminatory environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). management official Complainant named in the instant complaint. Therefore, Complainant alleges that the Patrol Agent in Charge had a vendetta against him. 2021003402 3 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 reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. The record reflects that Complainant has not demonstrated that he was subjected to retaliatory harassment as alleged. PAIC’s Statements/Comments Toward Complainant (claims 1-3) The PAIC testified and acknowledged that he has used profanity at the workplace including the word “f-kers.” However, the PAIC indicated that he did not recall what he said to Complainant on May 10, 2019, and he did not recall looking directly at Complainant when saying the alleged statement. The PAIC also admitted to calling Complainant and another employee “worthless” out of frustration. The PAIC explained that Complainant and the employee’s job performance were lacking, and he needed both of them to “step up.” Regarding the June 19, 2019 statement, the PAIC explained that Complainant had asked him if he knew about Complainant’s prior EEO complaint. The PAIC stated that he responded, “of course I did, everyone has heard of what happened at this station, and I’m sure you f-kers (guys) did some sign-cutting on me.” The PAIC clarified that his response was only letting Complainant know what generally everyone knew - that a prior Zapata supervisor had been arrested for aggressive behavior. The PAIC asserted that he did not indicate any understanding of Complainant’s prior complaint, and the PAIC denied that his statement confirmed any knowledge of Complainant’s prior complaint. The PAIC further denied doing any “sign cutting” on Complainant.3 The PAIC also indicated that the use of the word “f-kers” was not directed at Complainant or any specific person and admitted that the use of profanity was common in law enforcement culture. Notably, the PAIC also indicated that Complainant used profanity during the June 19, 2019 conversation. Vehicle Assignment (claim 4) The PAIC explained that he noticed that when he arrived at Zapata Station in April 2019, Complainant was using a vehicle that was specifically designated for vehicle pursuits even though Complainant was not using the vehicle for highway patrol. Rather, Complainant was using the vehicle to attend meetings and to get coffee or lunch. The PAIC further explained that this vehicle was the only one of its type at the Zapata Station. The PAIC stated that he conferred with the DPAIC, Complainant’s first level supervisor, and they both agreed that the vehicle would be better used in an operational/field environment. 3 The PAIC explained that the term sign cutting was used to indicate an attempt to “find dirt” on someone. 2021003402 4 Consequently, the vehicle was reassigned to the station’s team responsible for patrolling highways. However, the DPAIC indicated that he instructed Complainant to select another vehicle to use as his prior vehicle has been reassigned. Detail to Tactical Infrastructure/TI (claim 5) The PAIC explained that after observing Complainant for a few weeks, he determined that Complainant lacked knowledge in critical areas associated with projects at the Zapata Station. The PAIC noted that the DPAIC also agreed that Complainant lacked knowledge in critical areas, and the PAIC proposed to send Complainant on a temporary detail as an opportunity to increase his knowledge which would benefit then benefit the station. Although the detail was approved, the PAIC indicated that it was reversed following Complainant’s opposition to the decision to place him on a detail. Instruction on Decision Making and Threat of TI Detail (claim 6) The PAIC stated that he informed Complainant that while his temporary TI detail had been cancelled, he explained that Complainant still needed to demonstrate full knowledge of his roles and responsibilities. The PAIC denied threatening Complainant. However, the PAIC did give Complainant notice that he would revisit the detail assignment if Complainant could not demonstrate a strong understanding of his roles and responsibilities. The PAIC further denied ordering Complainant not to make decisions. Rather, the PAIC requested that Complainant keep him and the DPAIC informed on all station issues, and that the PAIC and the DPAIC would make the final decisions on matters that impacted the station. The PAIC clarified that Complainant still had the authority to make decisions regarding the day to day operations. We note that the DPAIC testified that he believed that the PAIC’s actions were retaliatory because at this point, the PAIC was aware that Complainant had filed the instant EEO complaint. However, the DPAIC stated that he informed Complainant to not worry about what the PAIC said and to continue to make decisions. Regarding Complainant’s contention that the PAIC was friends with the management official Complainant previously filed a complaint against, the PAIC indicated that he was “friendly” with the management official, but he was not a close friend and did not have a relationship outside of work. Additionally, the record indicates that Complainant did not inform management that the PAIC was subjecting him to retaliatory harassment until he sent a June 27, 2019 email indicating such. In the email, Complainant alleged that the PAIC had been retaliating against him for the past two months due to Complainant’s prior EEO complaint involving management officials Complainant asserted were friends of the PAIC. The record further indicates that once Complainant notified management of his alleged harassment, the Agency conducted an internal investigation into the matter. Additionally, the Agency issued a November 18, 2019 Letter of Counseling to the PAIC regarding his use of the word “f-kers” on a regular basis when speaking to subordinates. 2021003402 5 The letter informed the PAIC to stop engaging in similar misconduct and warned the PAIC that future incidents of similar misconduct would could result in disciplinary action up to an including removal from the Agency. In sum, Complainant has not produced evidence that considerations of retaliatory animus motivated management’s actions toward Complainant. The record reflects that the PAIC used profanity towards all subordinates and not just Complainant, and management subsequently counseled the PAIC for his misconduct. Additionally, the record reflects that Complainant waited until June 2019 to report allegations of harassment, and therefore, management was not otherwise on notice before June 27, 2019 that Complainant believed that he was being subjected to retaliatory harassment by the PAIC. Nevertheless, management conducted an internal inquiry into the matter following Complainant June 2019 email. Additionally, the record reflects that Complainant’s vehicle was reassigned because Complainant was not using it for its designated purpose, and Complainant was given the opportunity to use another vehicle. Moreover, Complainant’s detail assignment was based on Complainant’s performance and other management officials, besides the PAIC, were in agreement with this assignment. Lastly, there is no indication that the PAIC removed any decision-making authority from Complainant and the PAIC further informed Complainant that any detail assignment would be based on Complainant’s work performance. Therefore, Complainant’s claim of discriminatory harassment is precluded because there is simply no evidence that the disputed actions were motivated in any way by Complainant’s reprisal for prior protected EEO activity. 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 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. 2021003402 6 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). 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. 2021003402 7 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 April 14, 2022 Date