0120071029
03-19-2009
Jamie Solis, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Jamie Solis,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120071029
Hearing No. 570-2006-00203X
Agency No. HS 05-USSS-000352
DECISION
On December 15, 2006, complainant filed an appeal from the agency's
November 13, 2006 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.
At the time of events giving rise to this complaint, complainant worked as
an Officer-Technician in the agency's Criminal Investigative Division.
On May 5, 2005, complainant filed an EEO complaint claiming that he was
discriminated against on the bases of his race (Hispanic) and national
origin (Hispanic) when on March 7, 2005, his detail to the Criminal
Investigative Division was terminated, and he was transferred back to
the Uniformed Division. Complainant also claimed that on October 1,
2004, he was denied the opportunity to attend the Hispanic American
Police Command Officers Association Conference.
The agency accepted for investigation the claim involving the termination
of complainant's detail and his subsequent reassignment. The claim
concerning not being allowed to attend the conference was dismissed
pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds that complainant
failed to initiate contact with an EEO Counselor in a timely manner.
The agency stated that complainant did not initiate contact within the
45-day limitation period, as his contact did not occur until 151 days
after he was denied the opportunity to attend the conference. 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 timely requested
a hearing. Over complainant's objections, the AJ assigned to the case
granted the agency's Motion for Summary Judgment and issued a decision
without a hearing on September 29, 2006.
The record reveals that complainant began his career with the agency as
an Officer in 1987. In May 1991, complainant was assigned to the position
of Officer Technician in the Uniformed Division. In May 1998, the agency
created an experimental investigative operation within the Uniformed
Division called the Canine Counterfeit Detection Program. Complainant was
assigned in 1998 to the Criminal Investigative Division for the purpose
of training dogs to detect counterfeit money. In October 1998, the
Canine Counterfeit Detection Program was transferred from the Uniformed
Division to the Criminal Investigative Division. In or about March 2005,
the agency determined that the Canine Counterfeit Detection Program
was not progressing and it terminated the program. On March 7, 2005,
complainant was reassigned from the Criminal Investigative Division to
the Uniformed Division as a Police Officer for the White House Branch.
The AJ noted that complainant would have preferred to remain in the
Canine Counterfeit Detection Program, or at least be assigned to another
canine division. The AJ observed that complainant was not singled out
for reassignment, as the evidence in the record showed that complainant
was one of many who were reassigned. The AJ found that complainant's
preference that the Canine Counterfeit Detection Program remain in
existence or that he be assigned someplace else does not raise an
inference of discrimination or establish that the agency's actions were
pretext for discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal, complainant argues that no one indicated to him that the
Canine Counterfeit Detection Program was no longer viable, or that
his dog Mike was not performing to standards or was getting too old.
Complainant states that no one told him why he was removed or who made
the decision to remove him.
In response, the agency asserts that the Canine Counterfeit
Detection Program was discontinued because it was not progressing
to the satisfaction of agency management. The agency maintains that
complainant was reassigned to the White House because the Uniformed
Division required additional manpower at this location and complainant
needed recent operational experience to enhance his career development.
With regard to complainant's claim that the agency improperly concealed
the identity of the decision-makers who discontinued the Canine
Counterfeit Detection Program, the agency denies this charge stating that
it has simply identified the decision-makers as the Criminal Investigative
Division management. The agency notes that complainant presumably knew
the identities of management given that he was assigned to that division
for approximately seven years. The agency notes that the record contains
two affidavits from Criminal Investigative Division Managers which state
that management did not believe the Canine Counterfeit Detection Program
was progressing and was no longer viable based on the needs of the agency.
The agency maintains complainant has failed to refute its articulated,
nondiscriminatory reasons for complainant's reassignment and has failed
to introduce any evidence from which an inference of discrimination can
be drawn.
Initially, we shall address the claim that was dismissed by the agency on
the grounds of untimely EEO Counselor contact. The record reflects that
complainant was denied the opportunity to attend the conference on October
1, 2004, but did not initiate contact with an EEO Counselor until March 1,
2005, which was after the expiration of the 45-day limitation period.
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. Department of Defense, 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).
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).
Regarding the claim of termination of the detail and the transfer, we
shall assume arguendo that complainant established a prima facie case
of discrimination under the alleged bases. The agency's explanation for
the termination of complainant's assignment to the Criminal Investigative
Division's Canine Counterfeit Detection Program was that the Program was
no longer progressing and thus the Program was terminated. The agency
stated that complainant was reassigned to the Uniformed Division as
a Police Officer at the White House Branch because that Branch lacked
manpower and complainant needed operational experience to enhance his
career development. We find that the agency articulated legitimate,
nondiscriminatory reasons for its actions.
Upon review of the record, it is evident that certain agency officials
such as the Assistant Chief of the Uniformed Division and the Deputy
Special Agent in Charge of the Criminal Investigative Division
participated in the decision to discontinue the Canine Counterfeiting
Detection Program and reassign complainant. These officials were
consistent in their statements about the reasons that these actions
were taken. Complainant has failed to rebut the agency's explanation
or shown that the agency action was motivated by discrimination.
The agency's final action is AFFIRMED.
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
March 19, 2009
__________________
Date
2
0120071029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120071029