Case 5:18-cv-01576-CBM-SHK Document 155 Filed 11/08/22 Page 1 of 8 Page ID #:1390

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

11 CLARENCE ETHAN BOYCE, No. ED CV 18-01576-CBM(SHKx) 12 Plaintiff, 13 FINDINGS OF FACT AND v. CONCLUSIONS OF LAW 14

ALEJANDRO MAYORKAS1,

15 SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND Honorable Consuelo B. Marshall 16 SECURITY, CUSTOMS AND United States District Judge

BORDER PROTECTION,

17 Defendant. 18

19 20 Following a six-day bench trial in this action, the Court makes the following 21 findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52: 22 I. FINDINGS OF FACT 23 Considering the evidence presented and weighing credibility, the Court finds as 24 follows: 25 26

27 1 Pursuant to Fed. R. Civ. P. 25(d), Alejandro Mayorkas, who was sworn in 28 Secretary for Homeland Security on February 2, 2021, is automatically substituted as defendant in this matter. 1 Case 5:18-cv-01576-CBM-SHK Document 155 Filed 11/08/22 Page 2 of 8 Page ID #:1391

1 1. On April 2, 2009, Plaintiff Clarence Boyce (“Plaintiff”) began his 2 employment as a Border Patrol Agent (“BPA”) with the U.S. Customs and Border 3 Protection (“CBP”). 4 2. Plaintiff held the position of BPA at all times relevant to this action until the 5 effective date of his removal on November 16, 2017. 6 3. On May 10, 2016, Plaintiff signed a Last Chance Agreement with CBP in 7 which he agreed not to engage in any conduct unbecoming a BPA for two years from the 8 effective date of the agreement. In exchange, CBP agreed not to immediately remove 9 Plaintiff from his position as a Border Patrol Agent, GS-1896-12 and to hold the removal 10 action in abeyance pending Plaintiff’s compliance with the agreement for the two-year 11 period. 12 4. In November 2017, Watch Commander (“WC”) Arturo Velez oversaw 13 patrol Group B, which included Supervisory Border Patrol Agents (“SBPA”) and 14 approximately 14 BPAs, including Plaintiff. Group B was the “day shift,” which was a 15 10 hour shift that started at 0600 hours (6:00 a.m.) and ended at 1600 hours (4:00 p.m.). 16 5. There is an overlap in shifts of Patrol Group B and Patrol Group C from 17 2:00-4:00 p.m. The purpose of the overlap between shifts is to avoid a gap in coverage 18 out in the field. 19 6. Under the Border Patrol Agent Pay Reform Act (“BPAPRA”), BPAs sign 20 an agreement at the beginning of each year, indicating how much overtime they commit 21 to work. 22 7. In November 2017, Plaintiff was a BPA assigned to patrol Group B at 23 Murrieta Station. Plaintiff had elected level 2 overtime, which required him to work 50 24 hours per week, and included 10 hours of BPAPRA. In November 2017, Plaintiff’s 25 BPAPRA overtime hours were from 2:00-4:00 p.m. during the last two hours of his shift. 26 8. On November 2, 2017, Plaintiff met with Supervisory Border Patrol Agent 27 (“SBPA”) Scott Pinckney and WC Arturo Velez. Plaintiff informed SBPA Pinckney 28 and WC Velez that another BPA, Froylan Mendiola (“Mendiola”), reported an allegation 2 Case 5:18-cv-01576-CBM-SHK Document 155 Filed 11/08/22 Page 3 of 8 Page ID #:1392

1 that Mendiola had been subjected to unlawful racial profiling. During the same meeting 2 on November 2, 2017, Plaintiff also reported that BPA Ruth Chavez (“Chavez”) 3 complained about SBPA Pinckney. 4 9. On November 3, 2017, Plaintiff was assigned the Northbound License Plate 5 Reader nonfixed roving patrol duties in Zone 67. Zone 67 encompasses the I-15 corridor 6 from the city of Murrieta to the city of Corona. 7 10. Plaintiff was one of two units assigned to the I-15 northbound corridor in 8 Zone 67 on November 3, 2017. 9 11. Prior to arriving at the Murrieta Station on November 3, 2017, Plaintiff 10 contacted SBPA Pinckney to report that he would arrive at the Murrieta Station 11 approximately ten minutes late. 12 12. Plaintiff arrived at the Murrieta Station on November 3, 2017, at 13 approximately 6:11 a.m. Shortly after arriving at the station, Plaintiff was informed 14 about his work assignment in Zone 67. 15 13. At approximately 6:15 a.m. on November 3, 2017, Plaintiff met with SBPA 16 McClung in his office to discuss his shift assignment. Plaintiff also stated that he wanted 17 to work on an EEO related matter. 18 14. SBPA McClung informed Plaintiff on November 3, 2017 that Plaintiff was 19 one of two units on assigned to the northbound I-15 northbound corridor in Zone 67, and 20 that Plaintiff could work on the EEO related matter at the end of his shift on BPAPRA 21 from 2:00-4:00 p.m. 22 15. At approximately 6:17 a.m. on November 3, 2017, Plaintiff and SBPA 23 McClung approached WC Velez to discuss the shift assignment and whether Plaintiff 24 could work on an EEO related matter that day. 25 16. WC Velez told Plaintiff he was needed out in the field due to staffing 26 limitations on November 3, 2017, Plaintiff was one of only two LPR chase units 27 assigned that day, and Plaintiff could work on any EEO related matters during the last 28 3 Case 5:18-cv-01576-CBM-SHK Document 155 Filed 11/08/22 Page 4 of 8 Page ID #:1393

1 two hours of his shift from 2:00-4:00 p.m. during BPAPRA overtime on November 3, 2 2017. 3 17. Plaintiff repeated to WC Velez that he wanted to work on an EEO related 4 matter on November 3, 2017, but Velez instructed Plaintiff to go out in the field and 5 work his assigned duties, and told Plaintiff he was not to be at the station at a computer 6 until after 2:00 p.m. during his BPAPRA overtime that day. Later that morning on 7 November 3, 2017, Plaintiff said he was taking sick leave that day and Velez approved 8 Plaintiff’s request for sick leave. 9 18. Weighing credibility, the Court finds WC Velez and SBPA McClung’s 10 testimony that on November 3, 2017, Plaintiff was instructed to be out in the field and 11 not to return to the station until after 2:00 p.m., and was informed that he was authorized 12 to work on the EEO related matters after 2:00 p.m. during his BPAPRA overtime, was 13 credible. The Court finds Plaintiff’s testimony that his supervisors did not tell him to 14 remain out in the field, did not tell him not to return to the station without supervisory 15 authorization, and did not tell him he could not start working on the EEO related matter 16 until after 2:00 p.m. during BPAPRA on November 3, 2017, was not credible. 17 19. Plaintiff subsequently elected not to take sick leave that day, SBPA 18 McClung gave Plaintiff keys for his assigned vehicle, and Plaintiff left the station to go 19 out into the field. 20 20. On November 3, 2017, Plaintiff returned from the field and entered the 21 Murrieta Station at approximately 10:40 a.m. 22 21. Plaintiff returned to the station without notifying his supervisors or 23 requesting authorization. Plaintiff remained at the station from approximately 10:40 24 a.m. until approximately 1:00 pm on November 3, 2017. Plaintiff began working on the 25 EEO related matter at the station at approximately 12:00 p.m. on November 3, 2017. 26 22. At approximately 12:50 p.m. on November 3, 2017, SBPA Pinckney and 27 SBPA McClung approached Plaintiff in the quiet room of the Murrieta Station. SBPA 28 Pinckney asked Plaintiff why he was back at the station and not out in the field. Plaintiff 4 Case 5:18-cv-01576-CBM-SHK Document 155 Filed 11/08/22 Page 5 of 8 Page ID #:1394

1 told McClung and Pinckney that he was working on the EEO related matter. Plaintiff 2 subsequently requested sick leave which was granted, and Plaintiff departed the Murrieta 3 Station at approximately 1:00 p.m. 4 23. After Velez was informed that Plaintiff had returned to the station before 5 2:00 p.m. and was at a computer in the quiet room, Velez instructed the supervisors to 6 request that Plaintiff prepare a memo addressing: (1) why he violated a direct order to 7 stay in the field on November 3, 2017; and (2) who gave him permission to come in 8 from the field early to work on an EEO claim. 9 24. On November 3, 2017, WC Velez informed Acting Patrol Agent in Charge, 10 Marc Gonzalez (“Gonzalez”) regarding the incident involving Plaintiff. Gonzalez 11 instructed Velez to obtain memorandums from Plaintiff and the supervisors regarding the 12 incident with Plaintiff. 13 25. On November 4, 2017, Plaintiff requested and was granted emergency 14 annual leave. 15 26. On November 5, 2017, Plaintiff was called into SBPA Pinckney’s office. 16 SBPA Pinckney gave Plaintiff a Weingarten notice and instructed him to prepare a 17 memorandum regarding the November 3, 2017 events. 18 27. Plaintiff prepared a memorandum on November 5, 2017. In the 19 memorandum, Plaintiff accused SBPA Pinckney of harassment and retaliation. 20 28. On November 7, 2017, at approximately 1:10 a.m., Plaintiff sent an email to 21 Chief Rodney Scott accusing Murrieta Station management officials of misconduct. The 22 management officials included on the November 7, 2017 email, were Chief Rodney 23 Scott, Walter Davenport, Marc Gonzalez, Stanley McClung, Scott Gandre, Scott 24 Pinckney. Fredrick Kochmanksi and Arturo Velez were also included in the email. 25 29. On November 7, 2017, WC Velez forwarded his Memorandum to 26 Gonzalez, the Memorandums from SBPA McClung and SBPA Pinckney, access card 27 information, and the surveillance videotapes of Plaintiff. WC Velez was not aware 28 Plaintiff had signed a Last Chance Agreement when he submitted the memoranda 5 Case 5:18-cv-01576-CBM-SHK Document 155 Filed 11/08/22 Page 6 of 8 Page ID #:1395

1 regarding the November 3, 2017 incident with Plaintiff to Gonzalez. WC Velez made no 2 recommendation regarding any disciplinary action for Plaintiff, and was not the 3 proposing or deciding official in regard to the removal. 4 30. Between November 3 and November 7, 2017, SBPA McClung was not 5 aware Plaintiff had signed a Last Chance Agreement. SBPA McClung did not propose 6 or recommend any disciplinary action for Plaintiff. 7 31. On November 16, 2017, Rodney Scott (“Scott”) was the Chief Patrol Agent 8 for the San Diego Sector. 9 32. On November 16, 2017, Scott determined Plaintiff’s abandonment of his 10 assigned post without communicating or obtaining supervisory authority, Plaintiff’s 11 insubordination, and Plaintiff’s disregard of instructions from his supervisors to remain 12 out in the field and not return to the station until after 2:00 p.m. on November 3, 2017 13 was conduct unbecoming of a BPA which violated the terms of Plaintiff’s Last Chance 14 Agreement. 15 33. On November 16, 2017, Scott issued a notice of removal action to Plaintiff. 16 Patrol Agent in Charge Walter Davenport physically handed Plaintiff the notice of 17 removal. The notice of removal stated Plaintiff breached the Last Chance Agreement by 18 engaging in conduct unbecoming a BPA. 19 34. On December 13, 2017, Plaintiff, through his attorneys, filed an action 20 before the Merit System Protection Board, appealing his removal. 21 22 II. CONCLUSIONS OF LAW 23 1. Plaintiff asserts a claim against Defendant for retaliation under Title VII. 24 To establish a prima facie case of retaliation, Plaintiff must demonstrate: (1) he engaged 25 or was engaging in activity protected under Title VII, (2) the employer subjected him to 26 an adverse employment decision, and (3) there was a causal link between the protected 27 activity and the employer’s action. Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1064 28 (9th Cir. 2002); Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987). As to the third 6 Case 5:18-cv-01576-CBM-SHK Document 155 Filed 11/08/22 Page 7 of 8 Page ID #:1396

1 element for Plaintiff’s prima facie case, Plaintiff must demonstrate his protected activity 2 was a but-for cause of the alleged adverse action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 3 133 S. Ct. 2517, 2534 (2013). 4 2. If Plaintiff establishes a prima facie case for retaliation, the McDonnell 5 Douglas burden-shifting framework applies and “the burden of production—but not 6 persuasion—then shifts to the employer to articulate some legitimate, nondiscriminatory 7 reason for the challenged action.” Villiarimo, 281 F.3d at 1062. “If the employer does 8 so, the plaintiff must show that the articulated reason is pretextual either directly by 9 persuading the court that a discriminatory reason more likely motivated the employer or 10 indirectly by showing that the employer’s proffered explanation is unworthy of 11 credence.” Id. (internal quotations and citations omitted). “[I]f the plaintiff can show 12 pretext, then the McDonnell Douglas framework disappear[s].” Id. “The ultimate 13 burden of persuading the trier of fact that the defendant intentionally [retaliated] against 14 the plaintiff remains at all times with the plaintiff.” Id. (internal quotations and citations 15 omitted). 16 3. Assuming Plaintiff demonstrates a prima facie case of retaliation, the Court 17 finds Defendant had a legitimate, non-discriminatory reason for removing Plaintiff from 18 his position as BPA on November 16, 2017 based on Plaintiff’s violation of the Last 19 Chance Agreement for conduct unbecoming of a BPA based on Plaintiff’s actions on 20 November 3, 2017. See Allstot v. Confluence Health, 2018 WL 3966255, at *6 (E.D. 21 Wash. Aug. 17, 2018) (violation of last chance agreement was a legitimate, 22 nondiscriminatory reason for termination). Plaintiff disobeyed his supervisors’ 23 instructions on November 3, 2017 to work his assigned duties out in the field until 2:00 24 p.m. and not return to the station to work on administrative matters including the EEO 25 matter until after 2:00 p.m. during his BPAPRA overtime hours. Plaintiff’s actions on 26 November 3, 2017 demonstrated his disregard of his supervisors’ authority and 27 insubordination, which Scott determined to be conduct unbecoming of a BPA in 28 violation of Plaintiff’s Last Chance Agreement. 7 Case 5:18-cv-01576-CBM-SHK Document 155 Filed 11/08/22 Page 8 of 8 Page ID #:1397

1 4. Plaintiff fails to demonstrate Defendant’s proffered reason for terminating 2 Plaintiff’s employment is pretextual. 3 * * * 4 Any finding of fact which constitutes a conclusion of law is hereby deemed as a 5 conclusion of law. Any conclusion of law which constitutes a finding of fact is hereby 6 deemed a finding of fact. 7 III. CONCLUSION 8 For the foregoing reasons, judgment shall be entered in favor of Defendant and 9 against Plaintiff. 10 11 Dated: November 8, 2022.

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HON. CONSUELO B. MARSHALL

13 U.S. District Court Judge

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