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

Equal Employment Opportunity Commission

Dec 15, 2021

Appeal No. 2021003970 (E.E.O.C. Dec. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kip D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021003970 Hearing No. 450-2018-00113X Agency No. HS-CBP-013292-2017 DECISION On June 22, 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 May 21, 2021 final decision concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Border Patrol Agent, GS-1896-13, at the Agency’s Border Patrol Academy in Artesia, New Mexico. On June 1, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2021003970 2 1. on May 9, 2017, he was suspended for a period of 14 days, from May 21, 2017 to June 4, 2017, for the charge of Conduct Unbecoming of a Supervisory Law Enforcement Officer; and 2. on May 9, 2017, he was relieved of his instructor duties with the U.S. Border Patrol Academy located in Artesia, New Mexico. The investigative record reflects the following pertinent matters relating to the subject claims. On May 17, 2016, Complainant was charged with domestic violence and aggravated assault by the Tucson Police Department (Tucson PD). The alleged victim was Complainant’s then- girlfriend and coworker, Border Patrol Agent, GS-1896-07 (Agent) (White, female, no prior EEO activity). Report of Investigation (ROI) at 195-212. On May 19, 2016, Complainant was suspended and assigned to administrative duties, pending the outcome of an investigation into his arrest. ROI at 297-98. In contrast, no discipline was imparted to the Agent. The decision not to discipline her was made by the Division Chief (Division Chief). ROI at 132. Assistant Chief Patrol Agent 1 (Assistant Chief 1) is identified as a person co-responsible for the decision not to discipline the Agent. ROI at 136-39. On June 21, 2016, Complainant pleaded guilty to a misdemeanor charge of disorderly conduct and was sentenced to a one-year term of unsupervised probation. ROI at 214-21. The Agency’s Office of Professional Responsibility (OPR) conducted an internal investigation into Complainant’s conduct. During the investigation, Complainant admitted to having an argument and being physical with the Agent. ROI at 234-37. OPR’s investigation concluded on December 6, 2016. ROI at 173. A report was drafted and provided to management. See ROI at 117. In a letter dated March 7, 2017, Complainant was notified of a proposed 14-day suspension from duty and pay for Conduct Unbecoming a Supervisory Law Enforcement Officer. ROI 154-56. It was issued by Complainant’s third-level supervisor, the Deputy Chief (Deputy Chief). Id.; ROI at 107-12. Complainant responded to this letter, via his counsel, on April 5, 2017. ROI at 158- 63. Complainant countered that a 14-day suspension was unnecessarily harsh and requested that the suspension be reduced to five days for disruptive behavior. Id. Complainant first contacted an EEO Counselor on April 20, 2017, following notice of the proposed suspension. On May 9, 2017, Complainant’s fourth-level supervisor, the Chief Patrol Agent (Chief), upheld Complainant’s 14-day suspension. Complainant served his suspension from May 21, 2017 to June 4, 2017. ROI at 165-67; 169. In addition to the suspension, Complainant stated that he was notified by Assistant Chief Patrol Agent 2 that he was relieved of instructor duties; later, Complainant stated, Deputy Chief also told him that he would no longer be allowed to teach at the Academy. ROI at 25. 2021003970 3 Teaching at the Academy was one of Complainant’s duties at the time. Id. In his affidavit, Deputy Chief said he did not recall this decision and believed Complainant returned to his teaching duties after serving his suspension. ROI at 110. However, Chief affirmed he was involved in this decision and that various policies and procedures allow for removing an instructor from teaching duty based on Conduct Unbecoming. ROI at 119. He also received verbal guidance and direction from Office of Training and Development, Executive Director (Executive Director) and the Deputy Assistant Commissioner. Id. Complainant stated that he believed his race and sex were factors in in his discipline because the Agent is a White female and she received no discipline for her actions. ROI at 23. Complainant affirmed the Agent’s actions included assaulting him, destroying government property, and hindering Tucson PD’s investigation. ROI at 22. In addition, he claimed that the Agent’s supervisor told her that, “[Y]ou are a woman and you will always be the victim.” ROI at 23. Complainant acknowledged that the Agent had no prior EEO activity. Complainant identified the Training Operations Supervisor, GS-1896-14 (Training Supervisor) (Black, male, prior EEO activity),2 as a comparator who, Complainant believed, received lesser discipline because he had no prior EEO activity. ROI at 24-25. According to Complainant, the Training Supervisor was placed on administrative leave but not suspended when his wife, a fellow Agency employee, reported that he was abusing her. Id. The record includes an organization chart which shows that the Training Supervisor is not the same grade as Complainant, has a different supervisor from Complainant, and works in a different branch than Complainant. See ROI at 279. Complainant also identified one additional comparator who he believed was treated more favorably than him, namely Supervisory Agent (White, male, no prior EEO activity). The record shows that Supervisory Agent had a proposed suspension of 14 days reduced to 7 days and was relieved of his instructor status, for “failure to follow [Agency] policy” on fraternization. ROI at 275; 277. The Supervisory Agent was, at the time of the investigation, at the same grade and series as Complainant. Id. 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. On April 15, 2021, the AJ issued the order granting the withdrawal and subsequently sent the case back to the Agency to issue the decision. Consequently, the Agency issued a final agency decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant did not prove that the Agency subjected him to discrimination as alleged. 2 We note that, while Complainant assumes the Training Supervisor has no prior EEO activity, an EEO Investigator’s note in the Summary of Investigation indicates that a search of the Agency’s EEO database shows the Training Supervisor did have prior EEO activity. ROI at 100. There are no further details on the matter in the record. 2021003970 4 CONTENTIONS ON APPEAL Complainant argues that the FAD should be overturned. Principally, he contends that he was disciplined while the Agent who complained that he was violent, received no punishment. He also submits that the investigation was inadequate. The Agency opposes the appeal and requests that the Commission affirm the FAD. As for the investigation being incomplete, the Agency contends that the argument is meritless because further investigation would not prove discriminatory motive on its part. Because Complainant failed to show pretext by a preponderance of the evidence and failed to make a prima facie case of disparate treatment, the Agency asks that its denial of claims 1 and 2 be affirmed. STANDARD OF REVIEW 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 (EEO MD-110), 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”). ANALYSIS AND FINDINGS Complaint Processing We begin with Complainant’s procedural arguments. Here, Complainant argues that the FAD should be overturned because the EEO Investigator failed to conduct a complete investigation; that is, the EEO Investigator did not obtain documents related to the suspension and removal of instructor duties for Supervisory Agent. In addition, the EEO Investigator did not provide evidence related to Training Supervisor’s EEO activity. Upon review of the entire record, we are not persuaded that the investigation into Complainant’s complaint was incomplete or improper. Specifically, with regard to Supervisory Agent, we find that the information provided in the record indicates that he was not treated more favorably as compared to Complainant. With regard to Complainant’s contentions regarding the Agency’s alleged failure to obtain evidence related to the Training Supervisor’s EEO activity, we find that the Training Supervisor is not a proper comparator, as he holds a different title and is under a different supervisory chain than Complainant. 2021003970 5 We here note that Complainant had requested a hearing and could have taken the opportunity at the hearing stage to further develop the record. See EEO MD-110, at Chap. 7, § I. However, Complainant failed to do so. As a result, we see no need not entertain Complainant’s request to sanction the Agency. Based on the foregoing, we conclude that the investigative file contains sufficient information upon which to determine whether or not the complained-of Agency actions were the result of an unlawful discriminatory motive. Disparate Treatment We turn now to Complainant’s arguments regarding the merits of his case. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. Tex. Dep’t of Cmty. 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. St. Mary’s Honor Ctr. 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 its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether a complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions in claims 1 and 2. In claim 1, Deputy Chief recommended the 14-day suspension for Complainant for Conduct Unbecoming a Supervisory Law Enforcement Officer. Deputy Chief noted that Complainant was arrested for domestic violence, pleaded guilty to disorderly conduct, and was sentenced to one year of unsupervised probation. Chief upheld the suspension. For claim 2, the Chief, who affirmed that he was responsible for removing Complainant from his teaching duties, averred that he was following established protocols and verbal guidance provided by upper management when he made this decision. As the Agency articulated legitimate, nondiscriminatory reasons for its actions, Complainant has the burden of establishing that the Agency’s stated reasons were merely pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). 2021003970 6 Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext, Complainant asserted that he was the only individual who was disciplined for the events of May 16, 2017, even though he indicated that the Agent assaulted him, lied to Tucson PD, and refused to cooperate. He also alleged that Supervisory Agent and Training Supervisor were treated better than he was. Complainant again attributed the disparate treatment to his race, sex, and EEO activity. We are simply unpersuaded by Complainant’s evidence of pretext based on his proffered comparators. While we are mindful that the Agent was involved in the same incident, however, the Tucson PD report noted that she was the victim. Furthermore, Complainant, the Agent, and Training Supervisor all held different positions under different supervisors. To demonstrate that another employee is a similarly situated comparator, Complainant must show that all relevant aspects of the comparator’s work situation were nearly identical to his own. Martinez v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113436 (Nov. 1. 2011) (finding comparators were not similarly situated when they had different supervisors and/or a different chain of command than complainant). Given the differences in title, grade, and supervision between Complainant, the Agent, and Training Supervisor, we are disinclined to find them to be similarly situated. Furthermore, while we acknowledge that Complainant proffered Supervisory Agent as a comparator, we note that Supervisory Agent was only charged with fraternization which is a very different matter from Complainant’s charge. Because we find that the misconduct did not involve similar circumstances, Supervisory Agent is not similarly situated to Complainant. See Brittney B. v. U.S. Postal Serv., EEOC Appeal No. 0120182349 (May 22, 2019) (finding that comparators can be excluded from discrimination analysis based on dissimilar misconduct). After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, and also terminations, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction, supra; Tex. Dep’t of Cmty. Affairs, 450 U.S. at 253. An employer is entitled to make its own business judgments. The reasonableness of the employer’s decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). 2021003970 7 In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). 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. 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. 2021003970 8 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. 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 December 15, 2021 Date