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

Equal Employment Opportunity Commission

Oct 5, 2022

Appeal No. 2021004120 (E.E.O.C. Oct. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mike T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021004120 Hearing No. 570-2020-00313X Agency No. HS-CBP-00985-2019 DECISION On July 14, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 25, 2021 final order 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. At the time of events giving rise to this complaint, Complainant worked as a Mission Support Specialist, GS-0303-07, at the Agency’s Office of Facilities and Asset Management in Washington, D.C. On May 15, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against and harassed him in reprisal for prior protected EEO activity when: 1. On January 29, 2019, while in the mailroom, the Supervisory Management and Program Analyst acted in an unprofessional manner by yelling and screaming at him in front of his coworkers and indicated he was not allowed in the mailroom because of a previous EEO case; 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. 2021004120 2 2. On January 29, 2019, the Supervisory Program Manager removed all mail-related duties from Complainant; and 3. On or around January 29, 2019, Complainant felt intimidated when the Supervisory Management and Program Analyst walked by Complainant’s desk. The Supervisory Management and Program Analyst (SMPA) managed the Mail Management Program and had previously been Complainant’s supervisor. On January 17, 2018, Complainant emailed SMPA saying he had filed a complaint of discrimination and harassment. Complainant filed a formal complaint alleging harassment on the basis of disability on March 16, 2018, which he later withdrew on April 19, 2018. He filed another complaint on May 17, 2018, alleging harassment on the bases of reprisal and disability. The Agency replaced SMPA with the Supervisory Program Manager to be Complainant’s supervisor (S1) starting April 25, 2018. Complainant had previously requested that the Agency allow him to work from home when his medical condition restricted him from going to the office. During the reasonable accommodation process, S1 received a letter from Complainant’s doctor on June 1, 2018, that raised concerns with Complainant’s ability to safely perform physical mail-related duties. S1 told SMPA that Complainant was not to perform mail duties because of safety concerns or even be in the mail room. Complainant’s physical mail duties were shifted to other employees located in the mailroom. As an accommodation, Complainant was largely teleworking and not in the office. On January 29, 2019, Complainant’s workspace was not in the mailroom. The mail team had previously moved to the mailroom in the basement, with the exception of Complainant. Complainant had contacted the union saying the mailroom workspace was not adequate. Complainant was given a workspace on the third floor in case he came to the office. When Complainant came to the office on January 29, 2019, he attempted to go into the mailroom, however, his Personal Identity Verification (PIV) card no longer gave him access to the mailroom. A mailroom employee let Complainant in, which is when SMPA told Complainant he could not be in the mailroom due to an “ongoing investigation” or because of an “open case.” Complainant did not listen to SMPA’s requests to leave the mailroom. Both Complainant and SMPA started to raise their voices and another employee stepped in to diffuse the situation. S1 spoke separately with SMPA and Complainant regarding the January 29, 2019, incident. Complainant was instructed to stay out of the mailroom and SMPA was instructed not to interact or have contact with Complainant. After its investigation into the complaint, 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 2021004120 3 timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined the record evidence did not show the Agency’s reasons for its actions were pretext for reprisal. The AJ found that, since on or around June 10, 2018, as a form of reasonable accommodation, Complainant no longer had physical mail handling duties, and his workstation was not in the mailroom but on a different floor when he was not teleworking. Prior to the January 29, 2019 incident, Complainant had refused to move with the mail team to the mailroom in the basement and had complained to the union that the space was inadequate. On January 29, 2019, Complainant attempted to access the mailroom when it was not his workstation, and he did not leave even when SMPA told him to do so. The AJ concluded that beyond assertion and conjecture, Complainant failed to establish that SMPA was motivated by retaliatory animus when he did not permit Complainant inside the mailroom or walked by his desk. Next, the AJ addressed Complainant’s claim that it was per se reprisal when SMPA referenced Complainant’s EEO complaint while telling him to leave the mailroom. Given the undisputed facts, the AJ found SMPA’s comments would not discourage any employee from participating in the EEO process. Complainant provided no facts showing how SMPA’s instruction to “not let [him] enter the space because of an open case” indicated that the “open case” was an EEO complaint or complaint of discrimination. Complainant never stated that SMPA explicitly referenced Complainant’s EEO complaint or claims nor did any witnesses testify to hearing SMPA reference anything but a “case.” Finally, regarding Complainant’s allegations of retaliatory harassment, the AJ found that even taking the facts presented by Complainant as true, the conduct and treatment alleged would not create a chilling effect necessary to state a claim of harassment. Accordingly, the AJ found that Complainant was not subjected to reprisal or a retaliatory hostile work environment as alleged. The Agency issued a final order fully adopting the AJ’s decision. The instant appeal followed. 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2021004120 4 In order 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 or retaliatory 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. 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 subjected to reprisal or a retaliatory hostile work environment as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2021004120 5 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 October 5, 2022 Date