Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity CommissionNov 19, 2009
0120092548 (E.E.O.C. Nov. 19, 2009)

0120092548

11-19-2009

Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.


Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

(Immigration and Customs Enforcement),

Agency.

Appeal No. 0120092548

Hearing No. 570200700483X

Agency No. HS06ICE005522

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's May 16, 2008 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. Complainant alleged that the

agency discriminated against him on the basis of national origin

(Hispanic) when: (1) on May 3, 2006, he was informed that management

was canceling his enrollment in a Strategic Investigations Training

Seminar that was to occur later that month; (2) on May 16, 2006, he

was informed that his May 12, 2006 request to attend a Hispanic Agents

Association Training was denied; and (3) on or about July 18, 2006, he

became aware that similarly simulated employees, who had been assigned

to his unit later than he had been, were to receive a needed security

clearance investigation determination before he had received one.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant requested

a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).

On April 17, 2008, the AJ issued a summary decision finding no

discrimination. In reaching this decision, the AJ determined that

even if complainant could establish a prima facie case, the agency

had articulated legitimate, nondiscriminatory reasons for its actions.

The AJ stated that regarding the denial of complainant's attendance at

training, his supervisor denied his attendance because at that time it

appeared that complainant was going to leave his job at the agency and

move on to another agency. If that were to occur, then his current agency

would not receive any benefit from paying for complainant's training.

Complainant's request to attend Hispanic Agents Association Training

was denied due to other agency obligations and priorities. Similarly,

the processing of security clearances was a matter of agency discretion.

Complainant had not shown that he needed a clearance in order to do his

job, unlike his comparators, who did need clearances.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (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").

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

On appeal, complainant mainly asserts that a management witness

involved in this matter was less than truthful in his responses to the

EEO investigation. He further asserts that the EEO Investigator did

not interview a pertinent witness who could purportedly show that this

management witness had submitted a false statement to the investigator

in this matter. However, it was management's cumulative testimony which

the AJ found credible. Further, complainant has not produced evidence to

show that the agency's explanations are a pretext for discrimination or

identified material facts in dispute which could alter the adjudication

of his claims.

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 order,

because the Administrative Judge's issuance of a decision without a

hearing was appropriate and a preponderance of the record evidence does

not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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 19, 2009

__________________

Date

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0120092548

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092548