0120092300
06-10-2010
Jorge L. Balderrama, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Jorge L. Balderrama,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120092300
Agency No. HS-00-ICE-000044
DECISION
On April 28, 2009, complainant filed an appeal from the agency's March 31,
2009 final decision 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Senior Special Agent at the agency's Office of Internal Affairs (OIA)
in El Paso, Texas. In October 1998, another agency anonymously accused
complainant and several other coworkers of conducting their duties in a
racially discriminatory manner. The Treasury Inspector General referred
the allegations to the Customs Internal Affairs (IA) for investigation.
A Headquarters' team conducted an investigation of the allegation.
The investigative team found the allegations against complainant were
not substantiated.
On November 19, 1998, complainant submitted a Freedom of Information
Act (FOIA) request for the investigative file and other documents
relating to the Headquarters' IA investigation. On January 4, 1999,
the Customs Service denied complainant's FOIA request. On January 11,
1999, complainant appealed this denial. On February 22, 1999, the
Customs Service again denied his FOIA request.
In a letter dated April 28, 1999, complainant was reassigned from
his position in the El Paso OIA to the same position in the Dallas
Office of Investigations (OI). The Commissioner stated the reassignment
involved a rotation of agents between OIA and OI designed to increase the
effectiveness of the service. Complainant accepted the reassignment, but
he subsequently sought a hardship transfer back to El Paso. In September
1999, the Acting Branch Chief granted complainant's hardship transfer
to the El Paso Air Unit. As part of the transfer, complainant accepted
the position of Aviation Enforcement Officer.
On March 2, 2000, complainant applied for the Aviation Group Supervisor
(AGS) position. On April 12, 2000, the Approving Official (AO) selected
another candidate for the AGS position. Subsequently, in April 2000,
complainant received a response to his FOIA request.
Complainant initiated EEO Counselor contact on May 18, 2000. Thereafter,
on June 14, 2000, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of race (Hispanic), national origin
(Hispanic) and in reprisal for prior protected EEO activity under Title
VII when:
1. During September through November 1998, complainant was accused
of being a racist and a member of the "Mexican Mafia," and he was the
subject of an Office of Internal Affairs investigation.
2. In April 1999, complainant received a directed reassignment to Dallas,
Texas and was subsequently informed he could not return to the El Paso
office because his return would cause conflict within the office.
3. In September 1999, complainant was granted and accepted a hardship
transfer to the El Paso Aviation Branch, condition on his transfer to
a GS-1801-11 Aviation Enforcement Officer position.
4. From October 1998 until April 27, 2000, the agency delayed in
responding to complainant's Freedom of Information Act (FOIA) request.
5. On May 26, 2000, complainant learned he was not selected for an
Aviation Group Supervisor position.
Thereafter, the agency issued a partial dismissal on complainant's
complaint. The agency accepted issue 5 for investigation. However,
the agency dismissed issue 1 for stating the same claim previously
decided by the agency. Additionally, the agency dismissed issues 2,
3 and 4 on the grounds of untimely EEO Counselor contact.
Following the investigation of issue 5, the agency issued a final decision
on complainant's complaint. The agency found issue 1 was properly
dismissed, for stating the same claim that had previously been decided
by the agency. The agency found issues 2-4 were properly dismissed for
untimely EEO Counselor contact. The agency stated that although it was
not analyzing issues 2, 3 and 4 as discrete acts of discrimination, it
would consider these incidents as part of complainant's overall claim of
a hostile work environment. With regard to issue 5, the agency concluded
that complainant failed to prove that he was subjected to discrimination
as alleged. The agency also determined that complainant failed to show
that he was subjected to harassment based on his race, national origin
or in reprisal for his prior protected EEO activity.
On appeal, complainant claims that the agency improperly dismissed
his claim as untimely. Complainant argues that the agency's delay
in properly responding to his FOIA request contributed to his delay in
pursuing his complaint. Complainant notes that after the agency provided
information in response to his FOIA requests in April 2000, he immediately
initiated EEO counselor contact. Complainant argues there is more than a
temporal connection between the filing of his November 1998 EEO complaint,
his December 1999 FOIA request and his subsequent April 1999 transfer.
Complainant also claims he met his burden in showing that he was subjected
to unlawful discrimination.
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").
At the outset, we address the agency's dismissal of issues 1 - 4.
Upon review, we find the agency properly dismissed issue 1 pursuant
to 29 C.F.R. � 1614.107(a)(1), for stating the same claim previously
decided by the agency. The record reveals that complainant previously
filed Agency Case No. TD-99-2103, on December 22, 1998, alleging that
he was subjected to a hostile work environment with respect to an OIA
investigation into allegations he was a member of the "Mexican Mafia" and
other negative racial allegations. In April 1999, the agency dismissed
complainant's complaint.
Additionally, upon review we find the agency properly dismissed issues
2 and 3 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. Specifically, we find issues 2 and 3 are discrete
acts and complainant failed to initiate EEO Counselor contact within
45 days of the alleged discriminatory actions. We are unpersuaded by
complainant's contention that the time limit should be tolled due to the
agency's delay in responding to his FOIA request. Specifically, we note
that complainant's initial FOIA request in November 1998 and subsequent
appeals through February 1999, pre-date the incidents alleged in issues
2 and 3. Moreover, we find complainant has not raised any argument that
would warrant a waiver of the applicable time limit for claims 2 and 3.
With regard to issue 4, although the agency dismissed this issue as
untimely, we find this issue is more properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. The Commission
has held that it does not have jurisdiction over the processing of FOIA
requests. Instead, persons having a dispute regarding such requests
should bring any appeals about the processing of his or her FOIA requests
under the appropriate FOIA regulations. Gaines v. Department of the
Navy, EEOC Request No. 05970386 (June 13, 1997). In the instant case,
therefore, complainant's allegation that the agency improperly handled
his FOIA request fails to state a claim.
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).
With regard to issue 5, the Recommending Official (RO) stated he
recommended the selectee for the AGS position because he possessed
significant experience in progressively responsible positions in the Air
and Marine Interdiction Division. The RO noted the selectee's national
training program management experience while assigned to the Customs
National Aviation Center. The RO noted that complainant was new to the
Air and Marine mission; had yet to complete his training for an entry
level position; and had encumbered the position for only two months.
In addition, the RO noted the selectee had an undergraduate college
degree, demonstrated military and Customs leadership experience and
had successfully functioned as an Acting AGS. The AO stated that she
relied solely on the recommendation by the RO, and therefore, she did
not select complainant because complainant was not recommended to her
for selection.
In the present case, we find the agency has articulated legitimate,
non-discriminatory reasons for its actions. Complainant has not
demonstrated that thee reasons were a pretext for discrimination.
Accordingly, the agency's final decision dismissing issues 1 - 4 and
finding no discrimination on issue 5 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
June 10, 2010
__________________
Date
2
0120092300
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120092300