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

Equal Employment Opportunity Commission

Apr 4, 2014

0120123461 (E.E.O.C. Apr. 4, 2014)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120123461

Hearing No. 480-2011-000458X

Agency No. HS-ICE-0134820-10

DECISION
Complainant filed an appeal from the Agency’s August 8, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s Final Order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special
Agent/Criminal Investigator at the Agency’s facility in El Centro, California. Complainant was
hired by the Agency and began a two-year internship on August 17, 2008. Complainant filed
an EEO complaint, dated September 2, 2010, alleging that the Agency discriminated against
him on the bases of race (Caucasian), sex (male), color (white), and disability (perceived)
when:

1. On July 1, 2010, management temporarily revoked Complainant's credentials
and Complainant’s authorization to carry a firearm.

2. On July 13, 2010, management terminated Complainant’s employment as a
Special Agent/Criminal Investigator.

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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 requested a hearing. The AJ assigned to the case
granted the Agency’s May 5, 2012 motion for a decision without a hearing and issued a
Decision without a hearing on July 11, 2012.

In his Decision, the AJ found that the material facts were undisputed. Specifically, the AJ
found no dispute that Complainant was regarded by the Agency as an individual with a
disability. However, the AJ found the undisputed evidence showed that Complainant was not
qualified for the position of Special Agent based upon undisputed performance deficiencies and
conduct described upon which the Agency’s removal notice to Complainant is based.

The AJ considered the evidence of Complainant’s performance as set forth in the statement of
undisputed facts included by the Agency in its motion for a decision without a hearing. The AJ
noted the undisputed facts established that during surveillance, Complainant fled when he
thought the target saw him and Complainant failed to alert other agents appropriately to
continue surveillance. The AJ noted no dispute that during a role-playing exercise in April
2010, Complainant exercised poor judgment when he “shot” a fleeing suspect in the back, and
was unable to re-engage in the exercise after he became upset during the exercise. The AJ
found the undisputed facts also established that during a discussion with his superiors in S1’s
office on June 30, 2010, Complainant was confronted with questions regarding where he was
that day. The AJ found no dispute that Complainant provided answers to questions about his
whereabouts that he admitted later were untrue. Complainant ultimately admitted that he had
been to a job interview at another agency during his duty hours. The AJ found no dispute that
Complainant became upset during the discussion and left S1’s office. Subsequently,
Complainant was found, still upset, in the parking lot. Based upon his emotional response to
the discussion with S1, Complainant’s credentials and firearm were removed. The AJ further
found that Complainant was later terminated based upon the performance and conduct issues
the Agency observed during surveillance and training exercises.

The AJ noted that Complainant did not dispute that any of the events occurred. The AJ found
the Agency described the incidents at length in its notice to Complainant of his removal prior
to the conclusion of his two-year internship. The AJ found the undisputed record supported
the Agency’s determination that Complainant did not demonstrate the necessary qualifications
to continue to serve as a Special Agent in that he lacked the requisite judgment and ability to
act under stressful circumstances.

The AJ found that drawing all reasonable inferences in Complainant’s favor, Complainant
failed to establish a prima facie case of discrimination on any basis, and that the Agency
articulated legitimate, nondiscriminatory reasons for its actions. 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.
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On appeal, Complainant notes that the AJ’s Decision states that Complainant did not oppose
the Agency’s motion for a decision without a hearing. Complainant states that not only did he
oppose the Agency’s motion, but the Agency submitted a reply to Complainant’s opposition.
Complainant states that the AJ erred in failing to consider Complainant’s arguments in
opposition to the Agency’s motion.

ANALYSIS AND FINDINGS
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 analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies
that its decisions were motivated by complainant's disability and there is no direct evidence of
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discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens Village Comm. for Mental
Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v.
WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in order to establish a
prima facie case, complainant must demonstrate that: (1) he is an "individual with a disability";
(2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse
employment action; and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
The burden of production then shifts to the agency to articulate a legitimate, non-
discriminatory reason for the adverse employment action. In order to satisfy his burden of
proof, complainant must then demonstrate by a preponderance of the evidence that the
agency's proffered reason is a pretext for disability discrimination.

Id.
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 Constr. 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 U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 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 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
As a preliminary matter, we note that the record on appeal contains a copy of Complainant's
Reply In Opposition To Agency’s Motion For Decision Without A Hearing, as well as the
Agency's Reply To Complainant’s Opposition To Agency’s Motion For Summary Judgment.
Even if the AJ failed to consider Complainant’s motion in opposition to a decision without a
hearing, we consider that motion in this decision.

We find the AJ properly issued his Decision without a hearing. We assume, without so finding
that Complainant is an individual regarded by the Agency has having a disability. We find, as
did the AJ, that Complainant failed to establish a prima facie case of discrimination on any
bases. Specifically, we note that Complainant failed to identify any other employees, not in his
protected groups, who were treated better than he was treated under similar circumstances.
We concur with the AJ that Complainant failed to show he was qualified for the position of
Special Agent, because he failed to demonstrate during his internship, the requisite judgment
and candor required by the position as documented in the record.

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Even if we assume Complainant established a prima facie case on all bases, we still find no
discrimination. Regarding the discussion between Complainant’s supervisors (including S1) on
June 30, 2010, we find the relevant facts are undisputed. We find no dispute that Complainant
was confronted by his supervisor regarding his whereabouts and that in the course of that
discussion, Complainant became upset to the point that he felt it necessary to remove himself
from the confrontation by leaving the office. We further find no dispute that Complainant was
later approached by his supervisor in the Agency’s parking lot where he had gone to regain his
composure or “cool down”. We find the undisputed evidence supports the Agency’s
explanation that Complainant’s credentials were revoked and his firearm was removed for
safety reasons based upon Complainant’s reactions during the discussion that day with his
supervisors. We find no evidence that discrimination played any role in the Agency’s
decision. We note that Complainant does not dispute that he was not immediately forthcoming
with truthful explanations regarding his whereabouts that day, and assume as true,
Complainant’s explanation that he was upset by the manner in which he was confronted by his
superiors. Nevertheless, we find Complainant failed to present any evidence to show that the
Agency’s explanation was false and its actions were motivated by discrimination as alleged in
claim (1).

We find the evidence supports the Agency’s legitimate, nondiscriminatory reasons for
terminating Complainant based on Complainant’s performance and conduct. We find the
undisputed evidence shows that Complainant was not truthful when questioned by his
supervisors regarding his conduct and that Complainant’s performance during his internship
was inadequate. We find no dispute that Complainant appeared for a job interview at another
agency during his duty hours, and that later, Complainant denied that he had deviated from his
travel plans and assigned duties when confronted by his supervisor. Additionally, we find no
dispute that Complainant did not engage in training activities as he was directed and that
Complainant admits that he did not enter into the role-playing exercise in April 2010, with the
proper frame of mind. We find that Complainant failed to identify any other employees, not in
Complainant’s protected groups, who were given preferential treatment under the same or
similar circumstances. We find Complainant presented no evidence from which a trier of fact
could reasonably find that the Agency’s decision to terminate Complainant’s employment prior
to the expiration of his internship was motivated by discrimination.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Decision finding no discrimination.

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:
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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
0120123461

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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

Date
April 4, 2014