0120091272
08-05-2009
Jorge Flores, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Jorge Flores,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120091272
Hearing No. 451-2008-00021X
Agency No. HS-07-CBP-001465-330505
DECISION
On January 24, 2009, complainant filed an appeal from the agency's
December 22, 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
During the relevant time, complainant worked as a GS-11 Border Patrol
Agent in the El Paso Sector of the Deming, New Mexico Border Patrol
Station. As part of "Operation Jump Start" complainant was sometimes
assigned Entry Identification Team ("EIT") duties, which involved
observing National Guards and responding to their calls.
Complainant believed that he was discriminatorily being assigned EIT
duties more often than his co-workers. Instead of obtaining experience
in different areas of Border Patrol operations, complainant felt he
was unfairly assigned to "babysitting" members of the National Guard.
Consequently, he contacted an EEO Counselor. Informal efforts to resolve
complainant's concerns were unsuccessful. As a result, complainant
filed the instant formal complaint based on race, national origin,
religion and reprisal.
The agency framed the claim as follows:
Whether Customs and Border Protection discriminated against complainant,
when his job assignments were continually changed from regular BPA duties
to "babysitting" members of the National Guard. 1
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 AJ. Complainant timely requested a hearing, which
was held on October 28, 2008. Thereafter, on November 10, 2008, the AJ
issued a bench decision finding no discrimination.
The AJ determined that the agency had provided a legitimate,
non-discriminatory reason for assigning complainant EIT duties. Operation
Jump Start was "an important mission" and although the AJ acknowledged
that the assignment could involve "sitting in your vehicle for ten hours
a day," it was a job assignment that complainant and his fellow agents
were required to do. The AJ found that a review of the assignments given
to individual agents, both inside and outside of complainant's protected
classes, revealed that others were given EIT duty approximately the same
number of times, and in some instances even a few more times. Moreover,
the AJ noted that the facts did not establish a pattern that would suggest
any disparate treatment of employees in complainant's protected classes.
During the hearing the AJ observed that complainant's supervisor had a
"strong dislike" for complainant, but the AJ found no evidence that
the dislike was due to complainant's race, national origin, religion or
prior EEO activity.
On December 22, 2008, the agency issued a final order adopting the
AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ's decision was "wrong and
inappropriate". He argues that the AJ's denial of his witnesses, with the
exception of one, was "harmful error." Complainant's "biggest concern,"
however, related to the AJ's warnings that he should be careful about
filing EEO complaints. When the AJ stated that complainant should not
be surprised if his relationship with supervisors changed when he files
an EEO complaint, complainant felt "intimidated and discourage[d]".
He found the AJ's remarks "disturbing."
In response, the agency reiterates its belief that the AJ's decision was
proper and supported by substantial evidence. The agency argues that
complainant did not establish that management's reasons were pretext.
The agency states that all the agents within complainant's work unit,
Bravo Unit, were assigned EIT duties; and that the record does not
establish that complainant was given an inequitable amount of the
EIT assignments. Finally, the agency contends that the AJ's denial of
proposed witnesses and amendment of the complaint was not an abuse of
discretion.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ2 will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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).
As an initial matter, we note that the AJ did not err in rejecting the
majority of the witnesses proposed by complainant. A review of the
complainant's submission at hearing confirms that the proposed testimony
was not relevant to the claim at issue: the EIT assignments.
Based on a review of the record, the Commission agrees that complainant
has not shown that was subjected to disparate treatment in the assignment
of EIT duties. The record does not establish any nexus between his
protected bases and his EIT assignments. Complainant, along with the
other agents in the Bravo Unit, was required to observe the National Guard
as part of their responsibilities under Operation Jump Start. While, on
appeal, complainant expresses some concern over remarks made by the AJ
in issuing his bench decision, we do not find that the AJ's statements
had an impact upon his decision in this specific instance. Therefore,
the agency's implementation of the AJ's finding of no discrimination
was proper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
the agency's decision is hereby 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
August 5, 2009
__________________
Date
1 In the May 24, 2007 letter of acceptance, the agency also dismissed
complainant's hostile work environment claim which was comprised of
ten events. According to the agency, two events were found to have been
untimely raised with an EEO Counselor, while the remaining incidents
did not rise to the level of actionable harm. Complainant was notified
that the dismissal was reviewable by an EEOC Administrative Judge (AJ).
On appeal, complainant does not challenge the dismissal of the harassment
claim. Therefore, the instant decision shall not address the matter.
2 We note that the AJ participated in the hearing by videoconference.
In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August
21, 2006), the Commission determined that videoconferencing provides an
acceptable alternative to an in-person hearing. The Commission identified
a number of factors that an Administrative Judge should consider before
electing to proceed via videoconferencing, including the availability
and proximity to the participants of the videoconferencing facilities;
the adequacy of the available videoconferencing facilities, to include
any technological issues; the cost to the respondent agency (if any)
balanced against the savings in travel time for all parties, and the AJ;
the number of expected participants; and the objections of the parties,
if any. Id. Here, as in Allen, there is no indication of objection to
the use of video-conferencing by either party. Under these circumstances,
the Commission concludes that the AJ did not abuse his discretion by
electing to hold a video-conference hearing.
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0120091272
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091272