We have been watching CBP management for a while and it seems as if it is a diseased culture at the top of this vital agency.  EEOC has pointed out all too often that it finds CBP managers who take the stand and testify under oath just do not tell the truth.  That should be a removal offense for a law enforcement supervisor.  And the examples just keep coming. In yet another recent case, a manager filed an EEO complaint when she was not selected for the position of Supervisory Border Agent, National Frontline Recruitment Command, GS-15.

When the facts established that one of the interview panel managers involved in making the selection knew about the employee’s prior EEO complaint, EEOC demanded to know how she knew, who told her, and when. It would have looked horrible if that manager was told by some CBP executive calling to block the employee’s promotion as punishment for her prior complaint.  That executive would likely have to be fired once the case got over to the IG and U.S. Special Counsel.  But rather than reveal who told her about the EEO complaint history, the manager testified that she could not recall who told her or when. A convenient case of amnesia?

Having been denied answers to those questions, EEOC gave CBP management a chance to come up with an valid explanation why the this particular employee was not selected.  Again, CBP could not remember why.  It merely muttered a summary of how the promotion process works, without a word about what the employee lacked that prevented her from getting one of the seven vacancies. In fact, it could not even recall who evaluated the best qualified list of applicants for the selecting official, which conveniently blocked the EEOC judge from calling that person to the stand to explain himself.  EEOC wrote,

“The record simply does not indicate how the Agency determined which seven candidates would be interviewed, or why Complainant was not one of the seven. Merely indicating that the selecting official, or their designees, have the discretion to interview any or all applicants referred as best qualified is not enough — especially in a case were all of the interviewees, unlike Complainant, had never engaged in protected EEO activity. As was noted above, the Agency acknowledged that the record did not establish who chose the seven interviewees.”

As a result, EEOC found CBP leaders had engaged in reprisal against this supervisor for previously filing an EEO complaint. It ordered the agency to give the employee the promotion with three years of back pay, interest, and extra money to cover any increased income taxes she will have to pay for receiving a large check.  It also gave her damages and instructed the agency to consider disciplining the Selecting Official, who also claimed she could not recall any details.

The case is titled Ashlea P. v. Kevin McAleenan, Acting Secty, DHS, CBP, EEOC No. 0120182299 (2019).

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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