Sandra Gamez, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionJan 30, 2009
0120070890 (E.E.O.C. Jan. 30, 2009)

0120070890

01-30-2009

Sandra Gamez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.


Sandra Gamez,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security

(Customs and Border Protection),

Agency.

Appeal No. 0120070890

Hearing No. 451-2006-00009X

Agency No. HS-05-CIS-000808

DECISION

Complainant filed an appeal from the agency's October 20, 2006 final

order concerning her 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 the events giving rise to this complaint, complainant

worked as a Customs and Border Protection Officer at the Santa Teresa,

New Mexico Point of Entry. The record reveals that complainant

engaged in prior EEO activity when in 2002, she was a witness in

a complaint involving a co-worker. According to complainant, the

co-worker's complaint did not involve any management officials involved

in complainant's instant complaint. Complainant responded to a vacancy

announcement for a District Adjudication Officer position in the agency's

El Paso, Texas office. The Assistant District Director (Hispanic female)

was the recommending official for the position, and the District Director

(White male) was the selecting official for the position.

Complainant and 141 other applicants were deemed qualified and placed on

the Bilingual/Bicultural (BLBC) list for the position. The selecting

official conferred with the recommending official and chose three

Hispanic female term District Adjudication Officers for the permanent

District Adjudication Officer positions. A fourth position was filled

non-competitively by converting a term District Adjudication Officer

(White male) to a permanent appointment.

On August 19, 2005, complainant filed an EEO complaint alleging that

she was discriminated against on the bases of national origin (Hispanic)

sex (female), and in reprisal for prior protected EEO activity when on

or about April 25, 2005, complainant became aware that she had not been

selected for a District Adjudication Officer position in the El Paso

District, as advertised under Vacancy Announcement IT-05-DA7-1184750.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. On May 15, 2006, the agency moved for a decision

without a hearing in its favor. On August 30, 2006, the AJ issued a

decision without a hearing in which she found no discrimination. The

agency subsequently issued a final order adopting the AJ's findings.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the AJ improperly found no

discrimination because the agency failed to review applications before

making its selections. The agency requests that we affirm its final

order.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ's legal and

factual conclusions, and the agency's final order adopting them, de novo.

See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from

an agency's final action shall be based on a de novo review . . ."); see

also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)

(providing that an administrative judge's "decision to issue a decision

without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed

de novo"). This essentially means that we should look at this case

with fresh eyes. In other words, we are free to accept (if accurate)

or reject (if erroneous) the AJ's, and agency's, factual conclusions and

legal analysis - including on the ultimate fact of whether intentional

discrimination occurred, and on the legal issue of whether any federal

employment discrimination statute was violated. See id. at Chapter 9,

� VI.A. (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").

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).

In a claim such as the instant one which alleges disparate treatment, and

where there is an absence of direct evidence of such discrimination, the

allocation of burdens and order of presentation of proof is a three-step

process. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

142 (2000) (applying the analytical framework described in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA disparate

treatment claim). First, complainant must establish a prima facie case

of discrimination by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination; i.e., that a prohibited

consideration was a factor in the adverse employment action. Kimble

v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001).

The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has

articulated such a reason, the question becomes whether the proffered

explanation was the true reason for the agency's action, or merely

a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509

U.S. 502, 511 (1993). Although the burden of production, in other words,

"going forward," may shift, the burden of persuasion, by a preponderance

of the evidence, remains at all times on complainant. Burdine, 450

U.S. at 256.

Assuming arguendo that complainant established a prima facie case of

discrimination and reprisal, we nonetheless find that the agency offered

legitimate, nondiscriminatory reasons for its selections. Specifically,

the selecting official stated that the three selectees were chosen for

the position because they were all current term District Adjudication

Officers who were performing in an exemplary manner, whereas complainant

had previously served as a District Adjudication Officer but was not

serving in that position at the time of the selections.

Complainant contends that the agency's explanation is pretextual because

the selecting and recommending officials did not review the applications

before making the selections, and she believes that she had higher test

scores than two of the three selectees. The selecting and recommending

officials stated that they were unaware of complainant's prior EEO

activity, and complainant failed to provide any evidence that they

were aware of her prior EEO activity beyond her bare assertion that the

recommending official is "alleged to be the sister of the immigration

chief, who will get copies of all the EEO complaints." Finally, we

determine that complainant was not similarly situated to the White male

placed into the position, since he was non-competitively converted into

the position, whereas complainant was a competitive applicant for the

position. Thus, we find that complainant failed to provide any evidence

from which a reasonable fact-finder could conclude that the agency's

explanations were pretext for unlawful discrimination or reprisal.

Consequently, we find that the AJ properly issued a decision without a

hearing finding no discrimination.

CONCLUSION

After a review of the record in its entirety, including consideration of

all statements submitted on appeal, it is the decision of the Commission

to AFFIRM the agency's final order implementing the AJ's finding of

no discrimination.

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:

______________________________ __January 30,

2009_____________

Carlton M. Hadden, Director Date

Office of Federal Operations

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0120070890

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120070890

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