0120091180
12-10-2009
David D. Corbett, Jr., Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
David D. Corbett, Jr.,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0120091180
Hearing No. 520-2008-00418X
Agency No. HS08CBP002241
DECISION
On January 5, 2009, complainant filed an appeal from the agency's December
5, 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). 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 Customs and Border Protection (CBP) Officer at Newark Liberty
International Airport in Newark, New Jersey. Complainant initially
was hired in an Excepted Service appointment under the Federal Career
Intern Program and subject to a two-year probationary period beginning
June 11, 2007. On February 15, 2007, complainant signed a Modified
Background Investigation Statement of Understanding which stated that
he understood that he may enter duty based on the successful completion
of a pre-employment investigative check and that a completed background
investigation was required for retention in the position. On October 4,
2007, complainant was issued a Notice of Proposed Action (NOPA) which
notified him that information reflected in his completed background
investigation raised concerns regarding his suitability for employment.
The NOPA indicated that complainant was unsuitable for the following
reasons:
* Complainant stated during his background investigation interview that
he had only been dismissed from one employer (United States Federal Air
Marshall Service) while the background investigation revealed that he
had also been asked to resign from one employer (Monroe College) and
terminated from two other employers (the United States Postal Service
and the Social Security Administration);
* Complainant stated during his personal interview with the investigator
that he left employment with Monroe College because the job was
interfering with his full-time school schedule. The employer stated that
complainant was asked to resign amid allegations that he was "hitting on"
female college students;
* Complainant's Official Personnel File was reviewed and indicated that
he was terminated from the Social Security Administration for failure
to follow rules and from the U.S. Postal Service for poor attitude/work
performance;
* Complainant stated that he was terminated from the U.S. Federal Air
Marshall Service for "budgetary reasons," however the agency indicated
that complainant was terminated during a probationary period after
conducting an investigation into his work habits and behavior that
involved a security violation and tardiness; and,
* Military records confirmed that complainant received an honorable
discharge; however, personnel records revealed that he had received
disciplinary letters for 18 unexcused absences.
The NOPA provided an opportunity for complainant to respond to the
derogatory information and to provide any documentary evidence supporting
his response within 10 days. On October 12, 2007, complainant responded
to the NOPA and submitted supporting attachments. On October 31, 2007,
the agency found that complainant did not meet the standards required to
clear his background investigation. On December 13, 2007, complainant
was notified that his employment was terminated because he failed to
successfully complete his background investigation. On January 29, 2008,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race (African-American and American Indian),
color (Black), and reprisal for prior protected activity1 when the agency
terminated his employment during his probationary period for failure to
meet a condition of employment.
At the conclusion of the investigation, complainant was provided 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 complainant did not object, the AJ assigned to the case
granted the agency's October 10, 2008 motion for a decision without a
hearing and issued a decision without a hearing on October 30, 2008.
In his decision, the AJ found that complainant failed to introduce
any evidence that suggested a connection between his race and color
and the action taken by the agency. The AJ found that the Director
of Field Operations (DFO) terminated complainant because he failed to
clear his background investigation, a requirement for all CBP employees.
Additionally, the AJ found that complainant's background investigation
revealed that he had been terminated from four previous employers and
had disciplinary problems while he served in the military. The AJ
found that complainant intentionally failed to disclose all of his
terminations and misconduct to agency. Further, the AJ found that the
agency determined that, given the derogatory information in complainant's
background and the dishonesty in his conduct during the background check,
he lacked suitability for employment as a CBP Officer. As to reprisal,
the AJ found that complainant failed to establish a prima facie case
of discrimination because there was no evidence that he had ever filed
an EEO complaint with CBP or any previous employer. Accordingly,
the AJ found that complainant failed to present any evidence upon
which a fact-finder could conclude that his termination was motivated
by discrimination as alleged. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
he was subjected to discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that he did not receive notice of the AJ's
decision without a hearing until after he arrived at the EEO office for
the hearing. In addition, complainant alleges that he did not receive
the agency's motion for a decision without a hearing until after the
AJ's decision without a hearing. Complainant therefore maintains that
he has not been afforded a fair opportunity to respond to the agency.
In addition, complainant disputes that he had any knowledge that
a condition of his employment was the successful completion of a
background investigation. Complainant also raises issues regarding
the personal interview portion of the background investigation and
disputes the reasons given in the NOPA for his termination. Finally,
complainant argues that he did not have adequate time to respond to the
NOPA because he was training at the time at the Federal Law Enforcement
Training Center. Accordingly, complainant requests that the AJ's decision
without a hearing be overturned.
In response, the agency argues that complainant's claims that he did
not receive the agency's motion for summary judgment and the AJ's
decision without a hearing do not support his request for a hearing.
The agency notes that complainant received all other mailings and failed
to submit any evidence of any problems receiving his mail. Further,
the agency asserts that complainant does not allege in his appeal that
the AJ erred in his decision and has failed to establish that he was
discriminated against based on either his race or color. As a result,
the agency requests that we affirm the final order.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), 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").
Initially, we note that complainant alleged that he did not receive the
agency's motion for a decision without a hearing nor the AJ's decision.
A review of the record indicates however, that the agency attorney who
drafted the motion certified that on October 10, 2008, a copy of the
motion was mailed via Federal Express to complainant's address of record.
We note that a review of the record reflects that complainant's address
of record has remained the same throughout the duration of his complaint.
There is no evidence that complainant had any problems receiving any
other correspondence related to the case, including the AJ's Scheduling
Order which informed the parties of the date of the hearing. Further,
complainant has presented no evidence of any problems receiving mail.
Nonetheless, we find that, on appeal, complainant has had the opportunity
to provide evidence and arguments to establish that the AJ's decision
to grant summary judgment, and issue a finding of no discrimination,
was inappropriate. Therefore, we find that there is no evidence that
complainant was unfairly denied the opportunity to oppose summary
judgment.
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).
In the instant case, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. The Director of PSD (D1)
states that she made the final suitability determination regarding
complainant. Report of Investigation (ROI), D1's Decl. at 3.
D1 asserts that she reviewed the background investigation file and the
recommendations made by the Personnel Security Specialist, the Team Lead
and the Branch Chief and found that dishonest conduct (complainant's
failure to disclose prior employment terminations) and misconduct or
negligence in prior employment rendered him unsuitable for employment.
Id. Further, she asserts that complainant was afforded an opportunity
to explain and comment on the derogatory information developed during
the background investigation process 10 days after receiving the
NOPA as all CBP trainees are provided. Id. at 3-4. The Director of
Field Operations (DFO) asserts that she was the deciding official who
terminated complainant when it was determined that he was unable to
obtain a satisfactory clearance of a background investigation. ROI, DFO's
Decl. at 2. DFO maintains that without a clear background investigation,
an employee is not authorized to access sensitive information systems
which the agency relies on daily to accomplish their mission. Id.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, complainant now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Complainant can do this by
showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
Viewing the record in the light most favorable to complainant, we
find that complainant has presented no evidence establishing that the
agency's reasons are pretextual. We agree with the AJ that the record
is devoid of any evidence that complainant participated in any prior
protected EEO activity. The record reveals that complainant filed an
appeal with the United States Merit Systems Protection Board (MSPB)
regarding his dismissal by the U.S. Federal Air Marshall Service which
on November 19, 2004, was dismissed for lack of jurisdiction; however,
complainant did not allege unlawful discrimination in that appeal.
Accordingly, we find that complainant has failed to establish that
he was discriminated against on the basis of reprisal. Further, the
record clearly establishes that complainant was informed that successful
completion of a background investigation was a condition of retention
in his position. The record also supports the agency's assertion that
complainant failed to satisfactorily complete his background investigation
and was terminated as a result. Aside from complainant's bare assertions,
we find that there is nothing in the record that would establish that
complainant's protected classes or retaliation more likely than not played
a part in any of the agency's actions. At all times, the ultimate burden
of persuasion remains with complainant to demonstrate by a preponderance
of the evidence that the agency's reasons were not the real reasons,
and that the agency acted on the basis of discriminatory animus.
Complainant failed to carry this burden.
CONCLUSION
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
December 10, 2009_
Date
1 Complainant's original complaint included reprisal as a basis of
discrimination; however, on June 16, 2008, the agency dismissed the
claim for complainant's failure to identify any prior EEO activity.
The AJ reinstated reprisal as a basis because the agency dismissed the
claim on the merits, and not on any jurisdictional ground.
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0120091180
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091180