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

Equal Employment Opportunity Commission

Apr 27, 2022

Appeal No. 2021003290 (E.E.O.C. Apr. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hassan B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021003290 Hearing No. 410-2020-00338X Agency No. HS-CBP-02259-2019 DECISION On May 19, 2021, 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 22, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection (CBP) Officer, GS 12, at the Agency’s Atlanta Airport, Office of Field Operations in Atlanta, Georgia. On October 11, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the basis of age (54) when: 1. On July 17, 2019, a Supervisory Customs and Border Protection Officer (SCBPO) sent an email containing a link to a 2010 CPB video related to a 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. 2021003290 2 serial killer’s arrest, wherein Complainant was prominently displayed in the thumbnail for the video; 2. On July 17, 2019, Complainant learned that the 2010 CBP video he participated in related to a serial killer’s arrest had been heavily edited, tampered with, or manipulated to make Complainant look bad and single him out; 3. On July 17, 2019, Complainant learned the 2010 CBP video had been posted on YouTube and other social media outlets, without his permission, which he believed was done in order to harass and force him to retire. On July 17, 2019, the SCBPO sent an email to approximately 90 CBP employees nationwide, including Complainant, with the subject line: “Man arrested at airport for raping child.” See Report of Investigation (ROI) at 134. The email included a link to a news story and a headline stating, “U.S. Customs and Border Protection is being credited with helping DeKalb County capture one of their most wanted.” See ROI at 134. The email further stated, “When over [at] [Anti-Terrorism and Contraband Enforcement Team] I put together a PP of some [National Crime Information Center]’s we did for the year.2 We also were able to have several subjects arrested at the domestic airport where the warrant was from saving everyone plenty of time and money. Outbound NCIC’s: The first picture is of an EWI that killed two in a traffic accident and then went on the run.3 The second is an Atlanta Police Officer that had a warrant for murder from just a few days ago and was trying to flee to Mexico out of Atlanta.” See ROI at 134. The email also included another headline stating: “Serial Killer Arrested in Atlanta in 2010,” and included a link to a video posted on CBP’s YouTube page in 2010, titled “CBP Frontline News: CBP Apprehends Suspected Serial Killer.” See ROI at 134, 137. The video featured Complainant portraying a reenactment of the arrest. See ROI at 22, 112-13. Complainant stated that he felt the email and the links were sent to target and harass him by posting his image on social media and force him into retirement. See ROI at 21. He asserted that “having [his] image posted on social media/internet directly jeopardizes the safety of [himself] and [his] family,” and he felt “humiliated and degraded because the video had been tampered with to target me.” See ROI at 21. 2 The abbreviation PP is not defined in the record. 3 EWI is not defined in the record. 2021003290 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged because there was no evidence in the record indicating that the events occurred because of Complainant’s age. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency did not adequately explain its reasons for posting the video. Complainant argues that having his photo and name so prominently displayed in the video made him fear for his safety. In response, the Agency argues that, even assuming Complainant was subjectively offended by the video, there is no evidence that the video was edited or tampered with in any way nor was there any evidence indicating that the events were due to Complainant’s age. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of 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 the 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We note that the majority of Complainant’s argument on appeal appears to allege a violation of his privacy rights in having his photo and his name posted on social media without his consent. To the extent Complainant is alleging a violation of his privacy, the proper forum in which to 2021003290 4 address the issue is under the Privacy Act and not through the EEO process. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120151695 (Aug. 24, 2015) (stating that jurisdiction over alleged violations of the Privacy Act rests exclusively with United States District Courts); Bucci v. Dep’t of Education, EEOC Request No. 05890289 (April 12, 1989) (alleged violation of the Privacy Act is outside the purview of the EEO process). With respect to Complainant’s belief that the alleged actions were discriminatory, we find that the evidence in the record does not establish that any of the alleged incidents of harassment were based on Complainant’s age. The SCBPO stated that the email was sent to other CBP employees in order to provide information about the work that CBP does and various arrests CBP has been a part of. See ROI at 101. The Director of Visual Communications (DVC) in the Office of Public Affairs, who oversees the making of videos and manages the CBP’s YouTube channel, stated that the video’s purpose was to provide details of CBP’s “quick and heroic actions to apprehend a suspected serial killer” and to showcase CBP officials as “the public service heroes they are.” See ROI at 113-114. The record is devoid of any evidence to indicate that the video was edited or otherwise manipulated in order to single Complainant out. There is also no evidence in the record to support Complainant’s belief that the email was sent or the video posted in order to harass him. Moreover, Complainant’s subjective assertion that he found the email and the video to be humiliating and degrading is not sufficient to meet the objectively offensive standard required by Title VII. See Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview.”). Since the instant record does not establish that any of the incidents of alleged harassment were due to his protected basis, we conclude that Complainant has not proven that he was subjected to an unlawful hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that the Agency did not subject Complainant to discrimination 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 2021003290 5 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). 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 2021003290 6 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 April 27, 2022 Date