0120140492
09-22-2016
Chuck B.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chuck B.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120140492
Hearing No. 451-2011-00317X
Agency No. HSCBP006092011
DECISION
On November 20, 2013, Complainant filed an appeal from the Agency's October 28, 2013, final order 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing finding that the Agency did not discriminate against Complainant when it removed him from the Agency; and that it did not subject him to a hostile work environment based on his race.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Border Patrol Agent (BPA) at the Agency's Rio Grande Valley Sector in Rio Grande, Texas. Complainant was hired under the Federal Career Internship Program (FCIP) on April 9, 2009. Under the FCIP, Complainant served a two-year probationary period and received periodic evaluations on his performance.
On October 9, 2009, Complainant reported to work with unpolished boots, and was required to write a memorandum regarding the boots. In February or March 2010, Complainant was temporarily detailed to the Processing Area.
On March 10, 2010, Complainant transported the wrong person to the hospital. When questioned about the incident, Complainant stated that he had received permission, which he recanted; and he then attempted to blame his partner for the error. Complainant was verbally counseled for the incident. On March 20, 2010, Complainant again transported the wrong person to the hospital. He initially blamed another officer, who denied the allegation; and Complainant recanted. Complainant was verbally counseled.
On March 17, 2010, Complainant was arrested for Public Intoxication. He was off-duty at the time, but the incident was reported to the Agency, which conducted an investigation. In July 2010, Complainant alleged that his first line supervisor (S1) called him, and "yelled and screamed" at him. Complainant also alleged that S1 used profanity while speaking to him, and told others that he was a liar.
On August 17, 2010, Complainant reported to work without his firearm; he was directed to write a memorandum, and was verbally counseled. On September 4, 2010, Complainant left his weapon in his vehicle at the end of the day; he was directed to write a memorandum, and was verbally counseled.
In December 2010, Complainant received an "extremely negative" performance evaluation by a supervisor (S2). On the same day, he received another performance evaluation of "journeyman," which is the highest rating, by a different supervisor (S3).
On January 23, 2011, Complainant was directed to pick up a coworker (C1), who had vehicle problems while out on an assignment. When Complainant arrived at C1's destination, he hit a small post, knocking it over and denting the Agency vehicle. C1 informed Complainant that he needed to report the incident, but Complainant responded that he was concerned that he would be terminated, and attempted to contact the business owner to deal with the repairs on his own. C1 repeatedly reminded Complainant that he needed to report the accident. C1 believed that Complainant would not report the incident so when they returned to their office, C1 went to report the accident. When Complainant saw C1 speaking with a supervisory BPA (SBPA), he went up to them to report the accident.
On February 3, 2011, Complainant was issued a notice of termination during his probationary period. The deciding official (DO) stated that Complainant was being removed for leaving the scene of the January 23, 2011 accident, and for failing to immediately report the accident to a supervisor. The DO also stated that Complainant's training and employment records contain "multiple notations of deficiencies in [his] conduct, both on and off duty."
On April 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when:
1. it removed him from the Agency on February 3, 2011; and
2. S1 subjected him to harassment from January through December 2010.2
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 4, 2012, motion for a decision without a hearing, and issued a decision without a hearing on August 29, 2013.
While the AJ found that Complainant was a member of a protected class, and that he was subjected to adverse action, she found that he had not established a prima facie case of racial discrimination because the named comparators were not similarly situated due to distinguishing factors in their situations. The AJ then found that the Agency articulated legitimate, non-discriminatory reasons for its actions. For Complainant's detail to the Processing Area, the AJ determined that the Agency had a practice of detailing employees with limited Spanish skills, and that Complainant's Spanish skills were weak. In regards to Complainant's removal, the AJ found that the management officials found that his failure to immediately report the car accident, and his contemplation not to report it at all, exhibited a "lack of candor and trust," which was an undesirable trait in a law enforcement officer.
The AJ found that Complainant had not shown that the proffered reasons were pretext for discrimination. The AJ was not persuaded by Complainant's argument that he did not have any "conduct deficiencies." She found that "'[c]onduct' involves how a person behaves in particular situation or in a particular context, and the incidents involving issues such as transporting the wrong prisoner, or entering a secure area with his weapon, or contemplating not reporting a car accident, involved conduct that did not meet the expected standards and was therefore 'deficient.'" Accordingly, the AJ found that the Agency did not discriminate against Complainant based on his race when it removed him. In regards to Complainant's harassment allegation, the AJ found that Complainant did not show that the complained of incidents were motivated by his race, or that they were sufficiently severe or pervasive to rise to the level of a hostile work environment.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of his appeal on December 19, 2013. The Agency filed an opposition brief on January 14, 2014.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in issuing a decision without a hearing, and that there are material facts in genuine dispute. Specifically, Complainant states that:
1. the underlying "performance and conduct deficiencies" referenced in his removal letter are in dispute;
2. his testimony that S1 yelled at him are in direct conflict with S1's testimony denying his actions;
3. he raised concerns about racial discrimination prior to filing his formal EEO complaint, and management officials took no action;
4. his negative rating given by S2, and his positive rating given by S3 show a genuine dispute regarding his performance;
5. he named specific comparators who were outside of his protected class, and were treated more favorably than he was, showing disparate treatment;
6. he reported the January 23, 2011 accident as soon as he got to the station; and
7. S1's conduct of isolating him, yelling at him, calling him a liar, intentionally ruining his reputation, and unduly scrutinizing his work rise to the level of harassment.
Complainant also argues that the investigator did not speak with any witnesses who could corroborate his harassment claim; and that the AJ ignored his "evidence of a culture of hatred and distain [sic] towards African American individuals that permeates the Rio Grande Valley Area." Complainant also alleges disparate treatment when he was detailed to the Processing Area; he alleges that no other BPA was detailed there for as long of a period of time. He also argues that the Agency stated that he was only detailed for 20 days, while he maintains that he was detailed for 6-7 weeks, which is a "key material fact" in dispute.
In response, the Agency argues that there are no material facts in genuine dispute, and that Complainant's opinion that the actions were motivated by his race does not create a genuine issue of material fact. Additionally, the Agency states that Complainant has not shown evidence of pretext for discrimination; and only offers bald assertions that he was discriminated against and harassed because of his race.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Decision without a hearing
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. 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 Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In this case, we find that the AJ properly issued a decision without a hearing because there are no material facts in genuine dispute. Complainant argues that while he did not file an earlier EEO complaint, he raised concerns of discrimination to management officials, who took no action. Complainant states that he assumes that management officials disagree with this "factual assertion." We find that Complainant has not shown that there is a genuine dispute on this matter because he "assumes" that management officials disagree with him; and has not shown any evidence of a genuine dispute.
With regards to Complainant's removal, we find that his arguments on appeal do not raise a genuine dispute of material facts. Complainant's removal was based upon his conduct surrounding the January 23, 2011 accident; and his past deficiencies were noted as factors in determining his removal. While Complainant disagrees with management officials' assessment of his actions as "deficiencies," he does not deny that the incidents occurred. Additionally, while Complainant argues on appeal that he did report the accident immediately, his prior statement shows that he informed C1 that he "did not want to report the accident immediately because [he] knew that they would fire [him] for the accident." Complainant's own statement supports the Agency's position, and we do not find a genuine dispute in this matter.
Complainant also argues that the differing performance evaluations raise a genuine dispute regarding his performance. Additionally, Complainant argues that his Public Intoxication charge was later dismissed, and therefore, he had no deficiencies in his off-duty conduct. However, we find that these are not material facts in dispute because Complainant was removed for his conduct surrounding his car accident. To the extent that previous performance deficiencies and his arrest were factored into the decision to remove him, we note that some positive performance evaluations do not negate the negative information contained in his record; and the eventual dismissal of the Public Intoxication charge does not erase his initial arrest.
Complainant also argues that he named specific comparators who were allegedly treated more favorably than he was. However, we find that he has not shown a genuine dispute. The AJ analyzed the named comparators in her decision, and determined that the comparators were not similarly situated. Moreover, even after determining that Complainant had not established a prima facie case of discrimination based on race, the AJ continued evaluating Complainant's claim on the merits. As such, we find no genuine dispute regarding the comparators, and that the AJ viewed the facts in the light most favorable to Complainant.
In regards to Complainant's harassment allegation, he argues that S1's testimony conflicts with his, creating a genuine dispute, and that the investigator did not obtain witness statements. However, we note that this is not material because it does not affect the outcome of the case. As discussed below, we will assume Complainant's account of events as true. Additionally, we note that any evidence regarding a "culture of hatred" in the Rio Grande Valley area is not material because it does not establish that S1's allegedly harassing conduct was based on his race. We also find that the conflicting length of Complainant's detail is not a "key material fact" necessitating a trial because it is a minor detail. Accordingly, we find that there were no material facts in genuine dispute, and that the AJ's decision without a hearing was warranted.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant had established a prima facie case of racial discrimination; we find that the Agency articulated legitimate, non-discriminatory reasons for removing him. The DO stated that he decided to remove Complainant based upon the recommendation from the Patrol Agent in Charge (PAIC), who recommended Complainant's removal for his "poor judgment." Specifically, for Complainant's carelessness with his weapon; and for his lack of candor and trust regarding the car accident. The DO stated that a BPA's character, behavior and demeanor must "be above reproach," and that Complainant's "behavior and character were less than desirable."
The PAIC stated that he recommended Complainant's removal because his lack of candor demonstrated that his "integrity and judgment" was questionable. The record also contains C1's incident report of the accident. C1 stated that Complainant informed him that he "would take care of the situation on his own," and that he did not want to report the incident because he was scared that reporting it would lead to his termination. C1 stated that he became convinced that Complainant would not report the accident, and decided to report it himself. C1 stated that Complainant reported the incident, but only after he saw C1 speaking with the SBPA.
Complainant made bare assertions that management officials discriminated against him based on his race, which are insufficient to prove pretext or that their actions were discriminatory. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find that Complainant did not establish that the decision to remove him was based on his race.
On appeal, Complainant alleges disparate treatment when he was detailed to the Processing Area. While we note that this issue was not accepted as a separate claim of alleged discrimination, and was only included as part of Complainant's harassment allegation, the AJ found that the Agency articulated a legitimate, non-discriminatory reason for its action. Management officials stated that Complainant, and other BPAs, were sent to the Processing Area when they needed to improve their Spanish language skills. We find that Complainant has not shown that the proffered reason was pretext for discrimination, and as such, we find that the Agency did not discriminate against Complainant when it detailed him to the Processing Area.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
In regards to Complainant's allegation that he was subjected to a hostile work environment, we find that, even assuming, arguendo, that the events occurred as Complainant described and were unwanted, he has not shown any evidence that the conduct occurred because of his race. We find that many of the instances of alleged harassment were related to Complainant's performance and workplace conditions.
Additionally, the Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even if S1 yelled, called Complainant a liar, used profanity, made negative comments, forced him to write a memo, detailed him to the Processing Area, and issued him a negative performance evaluation, Complainant has not shown that the conduct had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that the conduct was sufficiently severe or pervasive resulting in a hostile work environment based on race.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision without a hearing finding that the Agency did not discriminate against Complainant when it removed him; and that it did not subject him to a hostile work environment based on his race.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__9/22/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Agency noted that the following actions supported Complainant's harassment allegation: S1 yelled at him, scrutinized his work, called him a liar, used profanity when talking to him, made negative comments about him, and forced him to write a memorandum regarding an enforcement operation assignment; in approximately February or March 2010, he was detailed to the Processing Area for two months; and on or about December 2010, he was issued an unsatisfactory performance review covering the period of time from September 2010 through November 2010.
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