01a43631
12-10-2004
Robert Quesada, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Robert Quesada v. Department of Homeland Security
01A43631
December 10, 2004
.
Robert Quesada,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 01A43631
Agency No. I-03-C072
Hearing No. 360-2004-00043X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. � 1614.405.
Complainant, an Immigration Inspector at the agency's Central Region
facility in El Paso, Texas, filed a formal EEO complaint on March 18,
2002, alleging that the agency discriminated against him on the basis
of race (Hispanic) when:
1. during 2003, a supervisor ordered him not to refer vehicles to US
Customs based on �no eye contact� from drivers and also ordered him not
to question people in the primary vehicle lane;
2. since receiving an order not to refer vehicles to US Customs in 2003,
he has not received award certificates when his referrals have resulted
in the seizure of contraband;
3. on February 3, 2003, he was denied two hours of official time when
he was only approved for 2 hours but had requested 4 hours;
4. on January 10, 2002, a supervisor told him to check with him;
5. on January 10, 2003, he was ordered to work a 20 hour shift;
6. on January 11, 2003, he received a written reprimand for not staying
for the full 20 hour shift the previous day;
7. on January 10, 2003, someone from the agency called him at his
residence, even though he had requested not to be called there;
8. management promoted an employee with whom he had difficulties to
the position of Acting Port Director; and
9. management allows the Supervisory Immigration Inspector to perform
primary inspections, which is the function of Immigration Inspectors.
On June 10, 2003, the agency issued a partial dismissal. The agency
dismissed claims 1, 4, 7, 8 and 9 pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. The agency accepted claims 2, 3, 5 and
6 for investigation.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency thereafter filed a Motion to Dismiss or in the
alternative, a Decision Without a Hearing (Summary Judgment).
In its motion, the agency argued for the AJ to issue a decision
without a hearing in favor of the agency, finding no discrimination.
Specifically, the agency concluded that complainant failed to establish
that there were any other employees outside his protected group who were
treated differently under similar circumstances. The agency argued that
assuming arguendo complainant established a prima facie case of race
discrimination, management articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were a
pretextual.
Regarding claim (2), the agency noted that complainant failed to specify
the date of the alleged discriminatory event. The agency argued that
in his affidavit, complainant stated that he was �verbally issued� by
the Supervisor Immigration Inspector (SII) not to refer vehicles to the
agency. However, the agency noted that in his affidavit, the SII stated
that he never ordered complainant not to refer vehicles to the agency.
The SII further stated that he was complainant's supervisor from October
2000 to July 2001, at the Dedicated Commuter Lane (DCL), and that he did
not supervise complainant in 2003. The SII acknowledged that when he
supervised complainant, he may have requested that he be more selective
in his referrals.
In her affidavit, the Port Director stated that she was unaware of
any rule that states if an inspector does not refer vehicles to the
agency then he/she would not receive award certificates. The Port
Director further stated that award certificates are issued to employees
�whose referrals have resulted in the seizure of narcotics, and the
certificates are based on merit, not race.� The Port Director also
stated that effective February 28, 2003, the Award Certificate Program
was terminated because of an agency merger that resulted in the creation
of the Bureau of Customs and Border Protection and the entity where the
award certificates was generated (Office of Assistant District Director)
is no longer in existence.
Regarding claim (3), the agency argued that complainant failed to produce
evidence showing that being approved for 2 hours instead of 4 hours
tangible harmed him in any way. The agency noted in his affidavit,
the former Deputy Assistant District Director for Inspections (DADDI)
stated that official time is granted based upon the mission of the
agency, as well as the appropriateness of the amount of time requested.
In his response to the agency request for admissions, complainant stated
that he had requested 4 hours of official time �to complete the chronology
and gather evidence for my EEO counseling on this case.�
Regarding claim (5), the agency acknowledged that it had inadvertently
ordered complainant to work the equivalent of a 20-hour shift, but that
complainant admitted that he did not comply with this order, did not
notify his supervisor of the error; and left the work site after working
less than twelve hours. (See Complainant's Responses to Agency's
Request for Admissions, Nos. 11- 13, and 17).
Regarding claim (6), the agency argued that there is no evidence that
on January 11, 2003, complainant received a written reprimand for
not having worked a 20-hour shift on the preceding day. The agency
noted that complainant's Supervisor stated that complainant did not
receive a written reprimand. In his response to the agency's request
for admissions, complainant merely stated that he was given a written
reprimand, but that �a copy was not provided.� The record contains no
copy of a written reprimand issued to complainant on January 11, 2003.
The Supervisor further stated that complainant �received my memorandum to
the Port Director explaining the circumstances surrounding the ordering of
overtime work� on January 10, 2003. Furthermore, the Supervisor stated
that complainant �never advised me that he had worked the additional
hours and when I spoke with him the next day, January 11, 2003, he did
not discuss the issue with me.�
On March 16, 2004, the AJ granted the agency's motion to dismiss. The
AJ determined that the agency properly set forth the undisputed facts
and applicable law and incorporated the Motion in his decision finding
no discrimination.
The agency's final order of March 29, 2004, implemented the AJ's decision.
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, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected class.
Regarding claim (3), complainant is entitled to a reasonable amount of
official time, if he is otherwise on duty, to prepare the complaint
and to respond to agency and Commission requests for information.
29 C.F.R. � 1614.605(b). The Commission has the authority to remedy
a violation of official time without a finding of discrimination.
Edwards v. USPS, EEOC Request No. 05960179 (December 23, 1996). In such
cases, the Commission's focus is not the agency's motivation, but rather
is whether complainant was denied a reasonable amount of official time.
The Commission determines that complainant has provided no information
to justify his need for more than two hours of official time, and that
the agency's grant of two hours was sufficient.
Accordingly, the agency's final order implementing the AJ's decision
concerning claims (2),( 3), (5) and (6) was proper and is AFFIRMED.
With respect to claims (1), (4), (7), and (8) complainant claimed
that he was discriminated against on the basis of race when his
supervisor ordered him not to perform his duties in a certain fashion;
his supervisor told him to check in with him; someone from the agency
called him at his residence; and management promoted an employee with
whom he had difficulties. In a partial dismissal dated June 10, 2003,
the agency dismissed these claims pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The agency determined that complainant
did not provide any evidence to suggest that he suffered a personal
loss or harm regarding a term, condition or privilege of his employment.
After a careful review of the record, we find that the agency properly
dismissed claims (1), (4), (7), and (8) for failure to state a claim.
With respect to claim (9), we note that complainant alleged that he was
discriminated against when management allows Supervisory Immigration
Inspectors to perform primary inspections, which is the function of
Immigration Inspectors. The agency determined that claim (9) constituted
a generalized grievance that was shared by all or substantially large
class and was insufficient to establish standing. Upon review, we find
that claim (9) constitutes a generalized grievance, which fails to state
a claim. Complainant cannot pursue a generalized grievance, unless he
further alleged some specific injury to himself as a result of the alleged
discriminatory practice. See Warth v. Seldin, 422 U.S. 490, 499 (1975);
Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508
(September 11, 1997) (claim that nurse practitioners in one unit received
more favorable treatment than nurse practitioners in other units was a
generalized grievance); Rodriguez v. Department of the Treasury, EEOC
Appeal No. 01970736 (August 28, 1997) (claim that there was imbalance
in favoring of African-Americans against Hispanics, in development and
promotional opportunities was a generalized grievance shared by all
Hispanic co-workers and therefore failed to state a claim). Therefore,
we find that the agency properly dismissed claim(9) for failure to state
a claim.
Accordingly, the agency's dismissal of claims (1), (4), (7), (8), and
(9) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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, 2004
__________________
Date