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Agent Subjected to Reprisal

The Department of Homeland Security subjected a supervisory border patrol agent for the Customs and Border Patrol to reprisal when it demoted him for “unauthorized disclosure of sensitive government material” based on documents which he introduced into evidence at his EEOC hearing, EEOC has ruled (Daniel Duran v. DHS, EEOC Appeal No. 072010042 (4/13/11)). After placing Mr. Duran on administrative leave pending an investigation and then demoting him to a nonsupervisory position, DHS’s “heavy-handed action” intended to send a message to employees who engaged in EEO activity led to a finding of reprisal. The Commission held that the agency should have availed itself of the EEOC’s safeguards rather than retaliate against the complainant for introducing the documents.

The EEOC noted that the agency had failed to object to the introduction of the documents when provided copies of the intended exhibits. The Commission found that the agency had opportunities to during the EEO process to protect sensitive documents entered into evidence, but it had failed to use them. Instead, the agency began a two-year investigation that left Mr. Duran in an unsettled state and caused him personal setbacks, emotional distress, and public embarrassment and humiliation as a result of his demotion.

As a remedy, the EEOC ordered Mr. Duran retroactively reinstated in his former supervisory GS-12 position with back pay, benefits and interest, administratively uncontrollable overtime, matching TSP contributions and lost earnings and reimbursement for the $10,000 TSP early withdrawal penalty. Supporting the administrative judge’s finding that Mr. Duran’s testimony was credible as to his pain and suffering, the Commission awarded compensatory damages of $125,000. It also awarded enhanced attorney fees at $400 per hour and a total of $38,400 in attorney fees and costs while denying an overall upward adjustment of 75 percent. In addition, the attorney will be able to petition for fees and costs incurred in the successful opposition to the agency’s appeal to the Office of Federal Operations, EEOC.