[Redacted], Rick G., 1 Petitioner,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Apr 19, 2022

Appeal No. 0720180009 (E.E.O.C. Apr. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rick G.,1 Petitioner, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Petition No. 2021002949 Previous Petition No. 2019005318 Appeal No. 0720180009 Agency No. HS-ICE-21851-2012 DECISION ON A PETITION FOR ENFORCEMENT On April 22, 2021, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement of an Order set forth in EEOC Petition No. 2019005318 (Oct. 26, 2020).2 The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. BACKGROUND During the period at issue, Petitioner worked for the Agency as a Management Program Analyst in Washington, D.C. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2 This matter was initially docketed as a petition for clarification. We find, however, that this matter is more properly referred to as a petition for enforcement based on Complainant’s Petition for Enforcement that the Agency is not in full compliance with our Order in EEOC Petition No. 2019005318. 2021002949 2 Petitioner filed a formal complaint in which he alleged that the Agency discriminated against him on the bases of race (African American), color (Black), age (54 at the time of the alleged incidents), and in reprisal for prior protected EEO activity. After an investigation, Petitioner timely requested a hearing before an EEOC Administrative Judge (AJ) and the AJ held a hearing on February 27-28 and March 20, 2017, and issued a decision on September 28, 2017. In her decision, the AJ framed Petitioner’s claims in the following fashion: A. Whether the Agency subjected Petitioner to discrimination because of his race, color, age, and in reprisal for protected activity when on January 9, 2012, his supervisor took possession of Petitioner’s credential which authorized him to receive firearm training. B. Whether the Agency subjected Petitioner to discrimination and a hostile work environment because of his race, color, age, and in reprisal for prior protected activity when: 1. On February 11, 2013, and February 23, 2013, the Unit Chief conducted a physical inventory of Agency badges and tampered with or removed badges from the inventory to discredit him. 2. The Unit Chief’s subordinate tampered with or removed badges from the inventory in order to tarnish his reputation as the assigned credential program manager. 3. On April 17, 2013, the Unit Chief presented Petitioner with an open mail parcel from which he removed credentials, in order to tarnish his reputation as the assigned credential program manager. 4. On April 25, 2013, the Unit Chief sent Petitioner e-mail messages which were a “waste of valuable time” and distracted Petitioner from his daily inventory duties. 5. On April 26, 2013, the Unit Chief subjected him to harassment and violated his privacy when she contacted his Employment Assistance Program [EAP] Counselor and asked why Petitioner was missing so much work. The AJ found the evidence supported a finding that the Agency subjected Petitioner to race and color discrimination with respect to claim (A). The AJ also found that the Agency subjected Petitioner to race and color discrimination, as well as unlawful retaliation, with respect to claims (B)(1), (B)(3), and (B)(5). 2021002949 3 The Agency issued a final order rejecting the AJ’s finding regarding discrimination and retaliation and filed an appeal. Petitioner filed a cross appeal regarding the issue of non- pecuniary damages. In EEOC Appeal No. 0720180009, issued on April 26, 2019, we affirmed the AJ’s decision concluding that Petitioner established race and color discrimination regarding claim (A). In addition, the appellate decision found substantial evidence in the record to support the AJ’s finding of retaliation with respect to claims (B)(1), (B)(3), and (B)(5).3 Finally, the appellate decision found that the AJ’s award of $20,000 in non-pecuniary damages was supported by substantial evidence in the record. In EEOC Appeal No. 0720180009, we ordered the Agency to take the following actions: 1. Within sixty (60) calendar days from the date this decision is issued, the Agency shall reinstate and reissue Petitioner’s Law Enforcement Badge and credentials issued by the Customs and Border Patrol Service retroactive to January 9, 2012 (the effective date of the Agency’s confiscation). The Agency shall permit Petitioner entry into the firing range for purposes of taking part in firearm training. 2. Within sixty (60) calendar days from the date this decision is issued, the Agency will expunge its records of any and all references to his supervisors’ (as set forth in the AJ’s decision) report to the Joint Intake Center regarding the actions at issue and their recommendations for Petitioner’s removal. 3. Within sixty (60) calendar days from the date this decision is issued the Agency shall pay Petitioner $20,000 in non-pecuniary compensatory damages. 4. Within ninety (90) calendar days from the date this decision is issued, the Agency will require the responsible management officials (as named in the AJ’s Decision) to take at least eight (8) hours of EEO training in the provisions of Title VII of the Civil Rights Act of 1964, specifically, nondiscrimination and the prohibition against and the prevention of harassment based on race and color and the prohibition against retaliation for engaging in protected activity. 5. Within sixty (60) calendar days from the date this decision is issued, the Agency shall pay $82,521.00 in attorney’s fees and $2,650 in costs. 3 Appeal No. 0720180009 further determined that because we found that Complainant established unlawful harassment based on prior protected activity with respect to (B)(1), (B)(3), and (B)(5), we did not need to address whether these matters also constituted harassment based on race and color. 2021002949 4 6. Within sixty (60) calendar days from the issuance of the decision, the Agency shall provide OFO with proof that it instituted a policy against harassment within the workplace and the specific process available to employees of ICE for reporting harassment in keeping with the EEOC’s Enforcement Guidance. 7. Within sixty (60) calendar days from the issuance of the decision, the Agency shall consider taking disciplinary action against the responsible management officials named in the AJ’s Decision. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. Training is not considered disciplinary action. 8. Within thirty (30) calendar days from the issuance of the decision, the Agency is required to post a notice in accordance with the “Posting Order.” 9. The Agency shall also pay Petitioner for reasonable attorney’s fees and costs associated with its opposition to the Agency’s appeal (as set forth in the paragraph entitled “Attorney’s Fees”). On July 26, 2019, Petitioner filed a petition for enforcement alleging that the Agency failed to comply with various parts of OFO’s Order in EEOC Appeal No. 0720180009. This matter was docketed as EEOC Petition No. 2019005318. In EEOC Petition No. 2019005318 (Oct. 26, 2020), we found that we were unable to determine from the record if the Agency was in compliance with various parts of the Order set forth in EEOC Appeal No. 0720180009. Thus, in EEOC Petition No. 2019005318, the Commission ordered the Agency to take the following actions: Within ninety (90) days from the date this decision is issued, the Agency shall: 1. Provide to the assigned EEOC Compliance Officer documentation clearly indicating whether it is in compliance with provision (1) of the Order in 0720180009, pertaining to the reissuing and reinstatement of Petitioner’s Law Enforcement Badge and Credentials. 2. Provide to the assigned EEOC Compliance Officer documentation (such as a signed affidavit that the records at issue have been expunged) clearly indicating whether it is in compliance with provision (2) of the Order in 0720180009, regarding the Agency’s expungement of its records. 3. Provide to the assigned EEOC Compliance Officer documentation (such as a copy of the material used in the courses or an affidavit from 2021002949 5 the trainer) indicating whether the Agency is in compliance with provision (4) of the Order in 0720180009, regarding EEO training for the RMOs. The documentation shall clearly reflect that the training attended by the RMOs was EEO training addressing Title VII of the Civil Rights Act of 1964, specifically, nondiscrimination and the prohibition and prevention of harassment based on race and color and the prohibition against retaliation for engaging in protected activity. 4. Pay Petitioner $12,342.08 in attorneys’ fees associated with legal work done during the successful opposition to the Agency’s appeal in 0720180009. 5. Pay Petitioner reasonable attorney’s fees and costs associated with the processing of EEOC Petition No. 2019005318 as set forth below in the paragraph entitled Attorney’s Fees. On January 28, 2021, the Agency filed a compliance report regarding the orders in EEOC Petition No. 2019005318. Therein, the Agency asserted that on December 12, 2019, the Agency issued Complainant a non-law enforcement officer badge and credentials, at the direction of the former Acting Executive Associate Director of ICE Enforcement and Removal Operations (ERO) (AD1). The Agency asserted that it submitted documentation that it complied with order regarding the Agency’s expungement of its records. The Agency also asserted that it provided documentation that it complied with the order regarding training for the responsible management officials. In addition, the Agency provided documentation that it paid Complainant $12,342.08 in attorney’s fees associated with the legal work done during the successful opposition to the Agency’s appeal in EEOC Appeal No. 072018000. Regarding the order directing the Agency to pay reasonable attorney’s fees and costs regarding the processing of EEOC Petition No. 2019005318, the Agency stated that Complainant’s counsel submitted a request for attorney’s fee and this matter was still pending before the Agency’s Office of Civil Rights and Civil Liberties (CRCL). In response, on February 5, 2021, Complainant’s attorney submitted a Petition for Enforcement and Motion for Sanctions. Therein, Complainant, through his attorney, asserted that the Agency was still not in compliance with two portions of the Order in EEOC Petition No. 2019005318: being re-issued his law enforcement badge and credentials, and the Agency paying attorney’s fees related to the attorney’s work on EEOC Petition No. 2019005318.4 Specifically, Complainant asserted that the Agency has still not restored his law enforcement badge and credentials. Complainant asserted that, “the Agency’s assertion that it gave anything to Complainant in terms of a badge or credentials pursuant to the Commission’s Order is a sham. 4 Complainant does not allege in the instant petition that the Agency is not in compliance with the other provisions of the Order in EEOC Petition No. 2019005318. Thus, we decline to further address the other provisions of the Order herein. 2021002949 6 The Agency farcically rescinded Complainant’s existing (non-law) enforcement credentials on November 22, 2019 and made Complainant accept them on December 12, 2019…Complainant has the same credentials he has had since his law enforcement badge and credentials were discriminatorily confiscated on January 9, 2012. He was also not reissued his badge, but rather was given a seal.” Complainant asserts that the Agency is attempting to rehash Complainant’s entitlement to a law enforcement badge and credentials and that these arguments were already litigated before the AJ and on appeal. Complainant further asserts that his attorney submitted his petition for attorney’s fees regarding EEOC Petition No. 2019005318. Complainant states that he still has not received a decision from the Agency on this petition and that the Agency acknowledges that this matter is pending before the Agency’s CRCL. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.503(a) provides that an aggrieved person may petition for enforcement of an order issued by the Commission under its appellate jurisdiction. In this case, Petitioner alleges that the Agency is not in full compliance with OFO’s Order in Petition No. 2019005318. Reinstating Complainant’s Law Enforcement Badge and Credentials The Agency is not in compliance with this portion of the EEOC’s order. The record contains a signed declaration from AD1. Therein, AD1 asserts that he directed the Operations Support Assistant Director to issue Petitioner non-law enforcement credentials. Specifically, AD1 asserts that, “[Petitioner] was not, and currently is not, a trained law enforcement officer authorized to carry a weapon and is an administrative employee, he was issued credentials to match his position and training within our law enforcement agency.”5 We concur with Complainant that the Agency previously raised such arguments before the AJ and on appeal in EEOC Appeal No. 0720180009 and EEOC Petition No. 2019005318. In EEOC Appeal No. 0720180009, the decision stated that: The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions [for claim (A)]. Specifically, the responsible management official (D1) (Caucasian, white) stated that the training Complainant received at the 5 The record also contains a memorandum dated June 18, 2019, from the Agency’s Legal Advisor, Labor and Employment Division to the Agency’s Senior Analyst, CRCL. The memorandum provides, in pertinent part, that the Agency cannot comply with the portion of the Order regarding reinstatement and re-issuing Petitioner’s law enforcement badge and credentials. Specifically, the memorandum states that Petitioner is a Management and Program Analyst not a law enforcement employee, and that under 18 U.S.C. § 701, it is a crime to wrongfully possess a law enforcement badge or wrongfully create a law enforcement badge. 2021002949 7 Federal Law Enforcement Training Center (FLTC) did not authorize him to receive law enforcement credentials. We find that there is substantial evidence in the record to support the AJ’s finding that Complainant established that the Agency’s articulated reasons for its action in claim (A) was pretext for discrimination. Complainant testified that he had been approved by his supervisors at the time to attend the Seized Property Specialist Course at the FLTC. The training included instructions on the safe handling of firearms. Complainant testified that after the training, he told his supervisors at the time that he had been given his law enforcement badge and credentials at the training. A senior training instructor at the range testified that Complainant was authorized to take familiarization training at the firing range…The record also supports the AJ’s finding that the Agency had issued waivers for Customs and Border Protection (CBP) trained employees who became employed by ERO to obtain credentials. (internal citations omitted). Based on the foregoing, we find that the AJ properly found that “D1’s testimony that he believed Complainant had engaged in misconduct by possessing a badge and credentials is not believable in light of the fact that Complainant had qualified for them at the Academy and legitimately applied for this change in his job classification. At the time he confiscated Complainant’s badge and credentials, [D1] knew [Complainant] had been firearm certified and graduated from the Academy.” (internal citations omitted). EEOC Appeal No. 0720180009 ordered (as did the AJ’s decision) the Agency, in relevant part, to reinstate and reissue Complainant’s Law Enforcement Badge and credentials issued by the CBP Service retroactive to January 9, 2012 (the effective date of the Agency’s confiscation). The Agency did not file a request for reconsideration regarding EEOC Appeal No. 0720180009. The Agency acknowledges in its January 28, 2021 compliance memorandum in response the decision in EEOC Petition No. 2019005318 that it issued Complainant “a non-law enforcement…badge and credentials.” The record is devoid of evidence that the Agency reinstated the type of badge and credentials Petitioner had at the time that they were confiscated in January 2012 due to discrimination. Based on the foregoing, we find that the Agency has not complied with this portion of our Order. Payment of Reasonable Attorney’s Fees and Costs Associated with the Processing of EEOC Petition No. 2019005318 The Agency is not in compliance with this portion of our Order. In its January 28, 2021 memorandum, the Agency acknowledges that Complainant’s attorney submitted a petition for attorney’s fees on November 24, 2020. The Agency sets forth that it submitted a response and this matter is currently pending at the Agency’s CRCL. The Agency states that “this response will be supplemented when payment is made.” The record is devoid of evidence that the Agency issued payment to Complainant on this matter or issued a final decision, with appeal rights to the Commission on this matter. Based on the foregoing, we find that the Agency has not complied with this portion of the Order. 2021002949 8 Complainant’s Request for Sanctions In the February 5, 2021 Petition for Enforcement, Complainant requests that we sanction the Agency for its “repeated refusals to timely submit to the [EEOC’s] Orders and unremitting willful misrepresentations and lack of candor regarding its failure to restore Complainant’s law enforcement badge and credentials…” At this juncture, we deny Complainant’s request for sanctions. While Complainant asserts that the Agency has engaged in “willful misrepresentations and lack of candor” pertaining to the Agency’s failure to restore Complainant’s law enforcement badge and credentials, we find that the record does not establish that the representations made by the Agency were willful misrepresentations. Rather, the Agency raised legal arguments (although unsuccessfully) as to why it was not issuing Complainant the law enforcement badge and credentials, he possessed at the time they were confiscated. We take this opportunity, however, to remind the Agency of its obligation to comply with Commission regulations and orders in a timely manner. We further note that EEOC has consistently during this administrative process awarded Complainant attorney’s fees for his success in opposing the Agency’s appeal and his subsequent petitions for enforcement. For the reasons stated above, we grant the petition for enforcement in this matter and order the Agency to fully comply with the following Order. ORDER To the extent it has not already done so, within sixty (60) calendar days from the date this decision is issued, the Agency shall: 1. Reinstate and reissue Petitioner’s Law Enforcement Badge and Credentials issued by the Custom Border and Patrol Service retroactive to January 9, 2012 (the effective date of the Agency’s confiscation). The Agency shall permit Petitioner entry into the firing range for purposes of taking part in firearm training. 2. Pay Petitioner reasonable attorney’s fees and costs associated with the processing of EEOC Petition No. 2019005318 as set forth below in the paragraph entitled “Attorney’s Fees.” 3. Pay Petitioner reasonable attorney’s fees and costs associated with processing of the instant petition as set forth in the paragraph below entitled “Attorney’s Fees.” The Agency shall submit a report of compliance in digital format as provided in the section below entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency’s actions. 2021002949 9 ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 2021002949 10 In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 April 19, 2022 Date