Inappropriate Sexual Conduct Costs CBP $40K in Compensatory Damages

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By Deborah J. Hopkins, October 29, 2024

Quick facts:

  • A CBP officer intentionally exposed his penis to the complainant.
  • The agency found the complainant was subjected to a hostile work environment based on that and other incidents.
  • Additional legal research shows the agency removed the harasser for his misconduct.

No matter how much awareness we bring to the topic, there are still far too many instances of inappropriate sexual conduct in the workplace. And when the conduct is not addressed promptly, it can cause continuing harm to the victim.

Consider the case involving a Customs and Border Protection (CBP) officer, in Buffalo, NY. Lelah T. DHS/CBP, EEOC Appeal No. 2021001401 (Aug. 16, 2022). The agency issued a FAD finding the complainant was subjected to a hostile work environment based on sex when:

  • On November 30, 2016, a co-worker (CW-1) pulled down his pants to reveal his camouflage boxer shorts to the complainant.
  • On March 5, 2017, co-worker 2 (CW-2) called the complainant’s name so she would turn her head and look at CW-1, who was exposing his genitals to her.
  • In August 2016, CW-1 and co-worker 3 (CW-3) had conversations in the office about pulling out their genitals in the office and having erections during work and training sessions, and CW-1 said he “worked up a chub” and “put it on the desk” for CW-3 to look at.
  • On August 19, 2017, CW-1 told Complainant he was upset that he was investigated by the Office of Inspector General (OIG) regarding her accusations that he was trying to intimidate, threaten, and discourage her from pursuing her complaints after management issued CW-1 a “cease and desist” memorandum to stay away from Complainant, effective May 5, 2017.
  • In or around August 2017, Complainant was forced to remove herself from the Tactical Terrorist Response Team (TTRT) and enter the bargaining unit to bid on a new position due to the harassment by CW-1.

Id. at 1-3.

In her complaint and signed declaration, the complainant said that as a result of the harassment, she experienced “extreme emotional distress and humiliation,” that “she felt humiliated and anxious as a result of the harassment,” and that “she was concerned for her overall health and safety.” Id. at 13.

The complainant requested, among other things, $125,000 in non-pecuniary compensatory damages, but the agency awarded $40,000 and the EEOC concurred with that amount. The award may have been higher, except some of the statements the complainant submitted in support for her $125,000 request were not signed, and the complainant’s personal statement was also not submitted.

If you’re wondering what happened to the harasser, the case doesn’t tell us. Because EEO cases use pseudonyms, we don’t know his identity. However, the decision does mention “an MSPB proceeding related to the removal of Complainant’s harasser” in relation to an attorney fees request. I surmised that CBP must have removed the harasser, and he must have appealed.

So, I did a little research, which led me to a case involving a Buffalo, NY-based GS-12 CBP officer’s removal for “exposing [his] penis in the workplace.” Burbas v. DHS/CBP, NY-0752-18-0222-I-2, p. 1 (June 13, 2024)(NP). I had a suspicion the appellant might be the harasser from Lelah T., but the NP decision was a bit vague on the details, so I went to the Burbas initial decision (Aug. 26, 2019). After reading the facts there, I am 99 percent certain this is the discipline side of Lelah T. (At least, I hope this didn’t happen more than one time in the Buffalo sector – and once was one too many times.)

Despite the appellant’s claim he meant his conduct as a joke, the AJ and the Board both upheld the removal. [email protected]

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