0120122680
04-09-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120122680
Hearing No. 480201000494X
Agency No. HS10CBP003883
DECISION
On June 14, 2012, Complainant filed an appeal from the Agency's May 22, 2012, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Border Patrol Agent at the Agency's facility in Indio, California.
On March 2, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when he was removed from his position as a Border Patrol Agent during his probationary period.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When the Complainant did not file an objection, the AJ assigned to the case granted the Agency's October 20, 2010, motion for a decision without a hearing and issued a decision by summary judgment on April 5, 2012.
The AJ in this matter found the following facts were established during the investigation of Complainant's complaint. Complainant began his appointment as a Border Patrol Agent (BPA) Intern on March 5, 2009. Complainant's appointment was to an excepted service position under the Agency's Federal Career Intern Program authorized by 5 C.F.R. � 213.3202. In accordance with Agency policy, employees hired under the intern program are required to serve a two-year probationary period.
Complainant began training at the U.S. Border Patrol Academy in Artesia, New Mexico, in March 2009. However, Complainant did not successfully complete the academy training on his first attempt. He was allowed a second attempt.
Complainant reported for duty at the Agency's Field Training Unit on October 15, 2009. According to the Agency, the training was designed to provide BPA interns, including Complainant, with practical skills and knowledge required to perform as line agents. During the relevant time period, Complainant was under the supervisory authority of a field training officer (FTO) and the supervisory border patrol agent, (SBPA). A former BPA Intern ("Intern") (Asian-American) was the only other member of Complainant's field training class.
On December 29, 2009, Complainant and Intern were working at an operational checkpoint when the FTO instructed them to return to the Indio Border Patrol Station. On their way back to the station, Complainant and Intern pulled into a travel center. Complainant and Intern did not get out of their vehicles, but drove through the Del Taco drive-thru at the travel stop and ordered food. The record further indicates that unbeknownst to Complainant and Intern, the FTO was in the vicinity of their location when he directed them back to the station. He followed the two without being observed and witnessed them pull into the travel center and go through the drive-thru. The FTO was able to observe that neither man left the vehicle during their detour to the travel stop. When Complainant and Intern returned to the station, FTO and SBPA questioned them about the purpose of their stop at the travel center. Complainant and Intern were interviewed separately and each reported that they stopped so that Intern could use the restroom. Because their story conflicted with what FTO observed, the two were interviewed more than once. On December 29, 2009, after several hours of interrogation, Complainant admitted that he initially lied when he was questioned and admitted that neither he nor Intern got out of the vehicle to use the restroom, but rather drove through the drive-thru to get some food.
On December 30, 2010, FTO and SBPA recommended to Agency officials that Complainant and Intern be terminated from the Agency for their lack of integrity. Upon the recommendation of Complainant's supervisors, he was removed from his appointment on January 4, 2010, during his probationary period, for his failure to demonstrate the expected level of integrity. The Intern was also terminated for the same reason. The record indicates that between January 2008 and January 2010, a total of 11 BPA interns, including Complainant and Intern, were terminated from the Indio Border Patrol Station during their probationary period. Many of the terminated interns were of a different race than Complainant.
Based on this undisputed evidence of record, the AJ determined that Complainant failed to prove, by a preponderance of the evidence, that the Agency's articulated reason for Complainant's termination was a pretext for race discrimination. The Agency subsequently issued a final order adopting the AJ's finding.
The instant appeal followed.
ANALYSIS AND FINDINGS
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no identified disputes of material fact.
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The Agency may rebut this initial inference of discrimination with an articulation of legitimate, nondiscriminatory reasons for the action taken. 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Here, we concur with the AJ's determination that assuming, arguendo, Complainant established a prima facie case of race discrimination, the Agency nonetheless, articulated legitimate, nondiscriminatory reasons for its actions. The record reflects that Complainant admitted that he lied about pulling into the travel center drive-thru to buy food when he was initially questioned about the incident. The undisputed evidence further establishes that Intern, who was not the same race as Complainant, was also terminated for the same incident. Moreover, the record shows that a number of other interns were also removed during their probationary periods and were of different races. We further find that even assuming the facts most favorable to Complainant, there is insufficient evidence of a genuine material dispute concerning the Agency's articulated reason for Complainant's removal. Complainant admitted to the misconduct and without more, there is simply no evidence to support his claim of discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that viewing the record evidence in a light most favorably to Complainant, there are no genuine issues of material fact and the preponderance of the evidence supports the AJ's determination that no discrimination has been proven.
The Agency's final order is AFFIRMED.
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
April 9, 2014
__________________
Date
2
0120122680
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122680