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

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2019004089 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tamara G.,1 Complainant, v. Alejandro Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2019004089 Hearing No. 480-2016-01001X Agency No. HS-CBP-25067-2016 DECISION On June 5, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 24, 2019 final action concerning her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. During the period at issue, Complainant worked as an Import Specialist, GS-1889-7, assigned at the Los Angeles International Airport in Los Angeles, California. On February 10, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against her based on disability,2 sex, and reprisal for prior 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. 2 Complainant identified her disabilities as bilateral disc herniation and panic disorder. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2019004089 2 Beginning in June 2014 and continuing, she was subjected to harassment with regards to incidents (a)-(m) and claim 2 below: (a) in June 2014, the Supervisory CBP Officer denied Complainant’s request for a reassignment from the Tom Bradley International Terminal (TBIT) Z Booth, and told Complainant “that is where everyone on light duty is assigned;” (b) in June 2014, the Chief CBP Officer denied Complainant’s request for a reassignment from the TBIT Z Booth, and told Complainant “I’ve been meaning to tell you since last week that your request was denied;” (c) in June 2014, the Assistant Port Director (“APD”) denied Complainant’s request for a Monday through Friday (a.m. shift) work schedule; (d) in June 2014, the Supervisory CBP Officer did not inform Complainant about the CBP reasonable accommodation process, and told Complainant “go to physical therapy on Mondays, your days off;” (e) in July 2014, the Supervisory CBP Officer ordered Complainant to report to TBIT Z Booth without the necessary badge from the Los Angeles World Airport to enter the building, and told Complainant “someone will let you in;” (f) in July 2014, another APD (“APD 2”) denied Complainant’s request for reassignment to another work unit; (g) in July 2014, the Acting Section Chief informed Complainant that she had to wear a different pair of shoes, and a supervisor had to approve her shoes; (h) since August 2014, APD 2 did not follow Complainant’s ergonomic assessment report that included her request for an ergonomic chair and being able to get up, exit the Z Booth and walk around when necessary; (i) on March 12, 2015, Complainant reinjured her back while working in the Z Booth because the Supervisory CBP Officer, the Chief CBP Officer, APD and APD2 would not reassign her; (j) on April 24, 2015, Complainant was issued a letter reassigning her from the position of CBP Officer, GS-1895-12, to Import Specialist, GS-1889-07, effective May 3, 2015; (k) in or around October 2015, Complainant received a notice from the National Finance Center payroll office stated she owed medical insurance withholdings because she was not correctly coded as Leave Without Pay (LWOP) in the Time and attendance system; 2019004089 3 (l) on November 2, 2015, Complainant received a letter dated October 29, 2015, from the Section Chief ordering Complainant to immediately return to work or submit documentation to support her excessive absences and/or unavailability for work within two business days, otherwise she could be removed from her position with the Agency; (m) on December 28, 2015, Complainant received a letter from Section Chief requesting medical documentation and ordering Complainant to return to duty. 1. On December 28, 2015, Complainant received a letter from the Section Chief stated Complainant was being charged Absence Without Leave (AWOL) since November 23, 2015. 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 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 action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 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). 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 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. 2019004089 4 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 discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final action 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. 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. 2019004089 5 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 March 8, 2021 Date