0120113436
11-01-2011
Baudilio I. Martinez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Baudilio I. Martinez,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0120113436
Hearing No. 451-2010-00155X
Agency No. HS09CBP007897
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s April 6, 2011 final decision concerning
his equal employment opportunity (EEO) complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Customs and Border Protection Officer at the Agency’s Ysleta
Cargo Port of Entry in El Paso, Texas. On March 18, 2009, Complainant
was assigned to screen vehicles for contraband using x-ray equipment.
One vehicle Complainant screened and cleared was later discovered to
contain a large quantity of marijuana. The marijuana, which weighed 1800
pounds, was discovered, apparently by happenstance, before the vehicle
left the port of entry by a drug-sniffing canine. Complainant reported
the incident to a supervisor but could not explain how the marijuana
had gone undetected. On June 4, 2009, Complainant was reassigned from
law enforcement to administrative duties, pending an investigation of
possible negligence or corruption on his part.
After he was reassigned Complainant became aware that a non-Hispanic
co-worker (CW1) was not reassigned pending an investigation when he
failed to detect contraband in a vehicle in September 2008. On October
20, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of national origin (Hispanic) when:
1. on June 4, 2009. he was assigned to administrative duties and relieved
of his firearm and duty belt; and
2. on June 5, 2009, he was relieved of his badge and credentials.
The Agency accepted the complaint and conducted an investigation.
Following the completion of the investigation, at Complainant’s
request, the matter was assigned to an EEOC Administrative Judge (AJ)
for a hearing. While the case was before the AJ, the parties conducted
discovery, including a deposition of Complainant, and engaged in motions
practice. Following the close of discovery, Complainant moved to amend
the complainant to add retaliation as a basis. The AJ denied that motion.
Before a hearing was held, Complainant withdrew his hearing request and
the matter was returned to the Agency for a final decision. The final
agency decision found that Complainant had failed to prove that he
was discriminated against. From that decision, Complainant brings the
instant appeal.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim, Complainant generally must
first establish a prima facie case of discrimination by demonstrating
that he (1) is a member of a protected class, (2) was subjected to
adverse treatment, and (3) was treated differently than otherwise
similarly situated employees outside of the protected class. Walker
v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas
v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002).
To demonstrate that another employee is a similarly situated comparator,
Complainant must show that all relevant aspects of the comparator's
work situation were nearly identical to his own. See Davis v. Dep't. of
Labor, EEOC Appeal No. 0120101468 (Jun. 24, 2010); see also Haywood
v. U.S. Postal Serv., EEOC Appeal No. 0120092765 (Dec. 2, 2009). Thus, in
order to be similarly situated, comparative employees must have reported
to the same supervisor, been subjected to the same standards governing
discipline, and engaged in conduct similar to complainant's without
differentiating or mitigating circumstances. Jones v. Department of
the Interior, EEOC Request No. 05950175 (June 7, 1996) (citing Mazzella
v. RCA Global Communications Inc., 642 F. Supp. 1531 (S.D.N.Y. 1986),
aff'd, 814 F.2d 653 (2nd Cir. 1987).
If Complainant establishes a prima facie case, the burden then shifts
to the Agency to articulate legitimate, non-discriminatory reasons
for its actions. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the Agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993); Burdine, 450 U.S. at 256; Holley v. Dep't of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy,
EEOC Request No. 05950351 (Dec. 14, 1995).
Here, the Commission finds that Complainant's comparator was not similarly
situated to him because their work situations were not identical or nearly
identical. Complainant’s first, second and third line supervisors
were different from CW1’s first, second and third line supervisors.
The fourth line supervisor for both Complaint and CW1, was the Port
Director (PD). The record shows that it was PD’s decision to reassign
Complainant to administrative duties pending the investigation. None of
his subordinates had the authority to make that decision. However,
the matter would not have reached PD’s level had it not been the
recommendation of Complainant’s supervisors that he be reassigned.
PD’s deposition testimony makes clear that he based his decision
on the recommendation of the Assistant Port Director, (APD) who was
Complainant’s third line supervisor. PD deposition at 21. APD was
not in CW1’s chain of command at the time he failed to detect the
contraband.
Also, Complainant has failed to disprove the possibility of
“differentiating or mitigating circumstances” as he must do to
raise an inference of discrimination. The vehicle Complainant searched
contained 1800 pounds of marijuana and nothing else. The vehicle involved
in the failed September 2008 search contained cargo in addition to the
contraband which, the Agency argues, made the contraband more difficult
to detect. This may have been a mitigating factor that could explain
why CW1 was treated less severely than Complainant.
We conclude that Complainant has failed to bear his burden of establishing
a prima facie case. Therefore, after a review of the record in its
entirety, including consideration of all statements submitted on appeal,
it is the decision of the Equal Employment Opportunity Commission to
affirm the Agency’s final decision because the preponderance of the
evidence of record does not establish that discrimination occurred. 1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
November 1, 2011
__________________
Date
1 Complainant also argues on appeal that the AJ abused her discretion by
denying him leave to amend his complaint to add a claim of retaliation.
The AJ’s action was not an abuse of discretion. Complainant was
aware of the facts that formed the basis for his claim of retaliation
for many months before he sought to raise it. During that period the
parties conducted and completed extensive discovery. The AJ reasonably
determined that the Agency would have been prejudiced if Complaint had
been permitted to raise an additional claim after the close of discovery.
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0120113436
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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