01a45992
01-11-2005
_________________, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
_________________ v. Department of Homeland Security
01A45992
January 11, 2005
.
_________________,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A45992
Agency No. I-02-W022; I-02-W078
Hearing No. 340-2003�3313X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Personnel Clerk, GS-4 at the
agency's California Service Center, Laguna Niguel, California, facility,
filed formal EEO complaints on November 27, 2001 (issue 1), and February
19, 2002 (issues 2 and 3), alleging that the agency had discriminated
against her on the bases of race (African-American) and disability when:
(1) she was removed from her position during her probationary period;
she was not selected for a Immigration Inspector and Detention
Enforcement Officer pursuant to vacancy announcement DE-HC-2000-0053S1;
and,
she was not selected for a Immigration Inspector position pursuant to
vacancy announcement number CT-IN-2000-00676SO.
The agency consolidated the complaints. At the conclusion of the
investigation, complainant received a copy of the investigative report
and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ found that complainant's supervisor was unaware that complainant
had Crohn's disease and that the persons involved in complainant's
nonselections were not aware that complainant had Crohn's disease.
The AJ concluded that complainant did not have a disability afforded
protection under the Rehabilitation Act in issue 1, 2 and 3.
With respect to his allegation of her being removed because of race
discrimination (issue 1), the AJ found that complainant did not establish
a prima facie case of race discrimination because there were no similarly
situated employees, not in complainant's protected classes, who were
treated differently than she was treated. Specifically, the AJ found
that there were no non-African Americans who made excessive personal
telephone calls and were not removed.
With respect to issue 2 and 3, the AJ found that there were no non-African
Americans who applied for either of the positions, who had unsuitable
factors in their background checks and had been hired for either of the
two positions. Specifically, neither of the selectees had unsuitable
factors on their record whereas complainant had been sued for failing to
make storage payments, failed to disclose $14,000.00 in debts and failed
to pay rent in February of 2001. The AJ concluded that complainant did
not establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination/retaliation.
On appeal, complainant does not address the merits of her complainant.
The agency makes no contentions on appeal.
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact in dispute. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure set forth in Rule 56
of the Federal Rules of Civil Procedure. The U.S. Supreme Court has
held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that
apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling
on a motion for summary judgment, a court's function is not to weigh
the evidence but rather to determine whether there are genuine issues
for trial. Id. at 249. The evidence of the non-moving party must be
believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. at 255. 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 Equipment Corporation,
846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the
potential to affect the outcome of a case. Only disputes over facts
that might affect the outcome of the suit under the governing law will
properly preclude entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
If a case can only be resolved by weighing conflicting evidence, the
issuance of a decision without a hearing is not appropriate. In the
context of an administrative proceeding, an AJ may properly issuing a
decision without a hearing only upon a determination that the record
has been adequately developed for summary disposition.
A claim of disparate treatment based on race, national origin or age
should be examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant
to prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has articulated such a reason,
the question becomes whether the proffered explanation was the true
reason for the agency's action, or merely a pretext for discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although
the burden of production may shift, the burden of persuasion, by a
preponderance of the evidence, remains at all times on complainant.
Burdine, 450 U.S. at 256.
Assuming, arguendo, that the complainant established that she was an
individual with a disability, the Commission finds that complainant
failed to establish a prima facie case of race and disability
discrimination, with respect to issue 1, because she has not shown
that there were similarly situated probationary employees, not in her
protected classes, who made many personal telephone calls and were not
terminated. Complainant's supervisor stated that complainant, who was
on her probationary period, spent an excessive amount of time on the
phone making personal telephone calls. She stated that she spoke with
the complainant at least four times about her spending too much time on
personal telephone calls and told her that she should make those telephone
calls during her break periods. Despite her warnings, she stated that
complainant continued to make personal telephone calls. She stated that,
while the Assistant Center Director for Management made the decision to
remove complainant, she agreed with her removal. The supervisor indicated
that there were no other employees who made excessive telephone calls.
Complainant has not identified other similarly situated probationary
employees who made excessive personal telephone calls and were not
removed. The Commission finds that complainant failed to present
evidence that more likely than not, the agency's articulated reasons for
its actions were a pretext for discrimination with respect to issue 1.
Therefore, we conclude that the AJ properly found no discrimination.
Concerning issue 2 and 3, the record reveals that, as a result of
a background check, the agency refused to hire complainant into the
Immigration Inspector and Detention Enforcement Officer position, vacancy
announcement DE-HC-2000-0053S1 or the Immigration Inspector position,
vacancy announcement number CT-IN-2000-00676SO. The complainant's
background check reveals that complainant had been sued for failing to
make storage payments, she failed to disclose $14,000.00 in debts and
she failed to pay her rent in February of 2001. The agency policy
regarding background checks prohibited the hiring of persons with
derogatory information in their background investigation including
dishonest conduct issues. The agency defined dishonest conduct issues,
in part, as willful disregard of financial obligations, having collection
accounts and failure to fulfill rental or contractual obligations.
The agency stated that no other persons with derogatory information in
their background checks were hired.
In response, complainant stated that she has disputed all of the debts on
her credit report to the creditors. While she admitted that she failed
to pay her rent in February of 2001, she denied that she had falsified
her financial obligations, stating that she overlooked her obligation
to itemize all of her debts.
We find that complainant failed to establish a prima facie case of race
and disability discrimination because she has not shown that there were
similarly situated probationary employees, not in her protected classes,
who had derogatory information in their background check that were hired
by the agency. The record clearly shows that she had outstanding debts
on her credit report and she admitted that she failed to pay her rent
in February of 2001. The Commission finds that complainant failed to
present evidence that more likely than not, the agency's articulated
reason for its actions, that complainant was not hired for the two
positions because she had derogatory information in her background
check, were a pretext for discrimination with respect to issues 2 and 3.
Therefore, we conclude that the AJ properly found no discrimination with
respect to issues 2 and 3.
Consequently, after a careful review of the record, the Commission
finds that the issuance of a decision without a hearing was appropriate,
as no genuine dispute of material fact exists. We find that the AJ's
decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. The agency's final order
is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 11, 2005
__________________
Date