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

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020000226 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dwight F.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020000226 Hearing Nos. 550-2017-00205X 550-2018-00108X Agency Nos. CBP-26407-2016 CBP-01261-2017 DECISION On September 11, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 9, 2019 final order 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 Border Patrol Agency, also a local union steward, at the Agency’s Border Patrol Station in Malta, Montana. Complainant filed two formal complaints on July 20, 2016 (Agency No. CBP-26407-2016) and May 12, 2017 (Agency No. CBP-01261-2017), respectively. Complainant claimed that he was subjected to discriminatory harassment based on his religion (Mormon) and in reprisal for prior protected EEO activity 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. 2020000226 2 1. On May 9, 2016, the Patrol Agent in Charge (“PAIC”) allegedly said he was Catholic, and not a Mormon. 2. On May 11, 2016, PAIC instructed Complainant to follow his chain of command for non-union related matters. 3. On May 11, 2016, PAIC informed Complainant that he could, during his shift, with supervisory approval, drive a Government Owned Vehicle (“GOV”) to his home to pick up a forgotten piece or equipment or food. 4. On May 12, 2016, PAIC stated that, contrary to a rumor, he was not a member of the Mormon religion. 5. On May 12, 2016, Complainant requested a shift modification so that he could act as a driver and chaperone at a youth-centered, community service event. Complainant alleges that PAIC failed to accommodate his religious beliefs when PAIC denied the request for a shift modification but then immediately approved a request for two hours of annual leave so that Complainant could attend the event. 6. On May 30, 2016, PAIC did not assign a new vehicle to Complainant. 7. On July 7, 2016, PAIC allegedly did not offer a temporary supervisory position to Complainant. 8. On July 26, 2016, PAIC sent the vehicle normally assigned to Complainant to the shop to repair a broken fuel gauge. 9. On September 29, 2016, while off-duty and in a personal vehicle, PAIC stopped at an interaction to allow Complainant, who was on duty and in a marked government vehicle, drive by, so that he could write down the vehicle’s identification number. 10. Since on or about September 28, 2016, PAIC allegedly did not communicate or cooperate with Complainant regarding three union-related concerns. 11. On September 30, 2016, PAIC asked Complainant to phone him, send him an email, or meet with him in person, rather than send him text messages regarding union related concerns. 12. On September 30, 2016, PAIC reminded Complainant that he needed to submit a Standard Form 955 whenever he engages in union-related business while on duty as is required by the collective bargaining agreement with the union. 13. On February 7, 2017, a portion of Complainant’s 2017 holiday leave request was denied. 2020000226 3 14. On February 22, 2017, Complainant learned he was not selected to participate in a Firearms Instructor Training Program (FITP), for which he never applied. 15. From May 26, 2017 through Jun 20, 2017, the Division Chief allegedly failed to respond to Complainant’s emails concerning the FITP solicitation and selection process. 16. From May 26, 2017 through June 20, 2017, the Division Chief and PAIC allegedly failed to respond to Complainant’s emails regarding the allocation of manpower to cover three shifts at Malta Station. 17. On June 23, 2017, PAIC asked Complainant to write a memorandum addressing why he had not timely submitted all of the information necessary to complete his periodic background reinvestigation. 18. On June 27, 2017, PAIC told Complainant he would have another steward represent a bargaining unit employee during a management inquiry, while Complainant was away on union business in another state. The Agency consolidated the two captioned formal complaints. After its investigation of the two complaints, 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 order adopting the AJ’s finding that Complainant failed to prove unlawful retaliation 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. 2020000226 4 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. In her decision, the AJ further determined that Complainant cannot state a prima facie case of either religious discrimination or reprisal because there was no evidence that similarly situated employees were treated differently than him. The AJ noted that in May 2016, PAIC entered on duty as the Acting PAIC of the Malta Station, and took steps to change the culture of Malta Station to address longstanding concerns. The AJ stated that it was undisputed that even during his first meeting with his new supervisor on May 9, 2016, “Complainant engaged in contentious, insubordinate and unprofessional conduct.” Specifically, the AJ noted that when PAIC explained to Complainant that as the new supervisor, he (PAIC) would be enacting several managerial reforms, Complainant “then threatened his supervisor by responding that if he chose to do so, “ ‘it is going to get nasty’ and adding vaguely that ‘they take meticulous notes’ and ‘they have pictures.’” The AJ noted that Complainant claimed he was the only agent that was specifically told by PAIC that he had to seek permission before driving home while on shift in a government owned vehicle (“GOV”). According to the PAIC’s notes from a meeting with Complainant, that they discussed the fact that agents had made a regular practice of driving an hour from their assigned areas at the border to home in a GOV during their shift. This became an issue for PAIC shortly after his arrival at Malta Station along with other matters, such as tardiness, adherence to uniform standards and agents not keeping their supervisors apprised of their whereabouts while on patrol. PAIC informed Complainant that agents may return home to pick up a forgotten lunch or piece of equipment. However, PAIC noted that such action should be an infrequent occurrence. The AJ noted that Complainant was not similarly situated with the other agents. In addition, the AJ stated that PAIC instructed his supervisors to communicate his expectations that agents stay in their assigned zone to all agents at muster. On December 23, 2016, Complainant submitted his 2017 annual leave request to management. The Deputy Agency Agent in Charge (DPAIC) reviewed Complainant’s request along with the requests of other agents. After a review of the requests, DPAIC noted that in several instances, the agents’ requests overlapped, and that not all requests for leave could therefore be approved. According to the Collective Bargaining Agreement, the following four factors are to be considered when employees’ leave requests overlap: (1) leave balance; (2) seniority; (3) whether an employee has children in school; and (4) whether an employee’s request was approved the previous year. DPAIC relied on these criteria for evaluating Complainant’s leave requests for 2017. He noted that Complainant’s request for leave during the Independence Day holiday was approved even through it conflicted with another agent’s request. Further, DPAIC stated that Complainant’s request for Thanksgiving holiday conflicted that of another agent. DPAIC denied Complainant’s request because he requested for the same time the previous year, which had been approved. Moreover, Complainant requested two weeks of leave during Christmas and New Year which conflicted with the request of another agent. 2020000226 5 Moreover, DPAIC decided to split the holiday, giving Complainant time at Christmas to be with his children and granted the agent’s time off over the New Year holiday. The AJ noted that Complainant claimed that he was not aware of the Sector Operations Officer announcing a Firearms Instructor Training Program (“FITP”) class from March 29, 2017 to April 25, 2017. On January 13, 2017, DPAIC sent an email to the Malta Station supervisors informing them to canvass the agents for applicants for the upcoming FITP. On January 17, 2017, Complainant emailed PAIC asking about the next FITP. PAIC responded stating management was currently soliciting interested agents for the next course. The record reflects that two agents applied while Complainant did not apply for the position. With respect Complainant’s allegation that he was not provided religious accommodation, the AJ noted that Complainant did not follow the Agency’s procedure for requesting an accommodation. Specifically, the AJ noted that on May 12, 2016, Complainant requested to change his scheduled shift start time on May 14, 2016, from 10:00 p.m. to 12:00 midnight. PAIC responded that he could not grant a shift modification because half of the agents who worked that shift were already off work. However, PAIC instead immediately granted Complainant two hours of annual leave to allow him to participate in the youth group meeting. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was retaliated against in violation of Title VII as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no retaliation as alleged. 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. 2020000226 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. 2020000226 7 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 7, 2021 Date