0120100434
05-26-2011
Sylvia G. Griffin, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Sylvia G. Griffin,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0120100434
Hearing No. 541-2009-00133X
Agency No. HS09CBP000943
DECISION
Complainant filed an appeal from the Agency’s October 13, 2009,
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 Commission deems the appeal timely and accepts it pursuant to 29
C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a probationary U.S. Border Patrol Agent at the Agency’s Ysleta
Station in El Paso, Texas.
On December 11, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of perceived national
origin (Puerto Rican)1 and sex (female) when, on October 31, 2008,
she was terminated from her position during her probationary period.
At the conclusion of the investigation, the Agency provided Complainant
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. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s July 17, 2009 motion for a
decision without a hearing, and issued a decision by summary judgment
in favor of the Agency on September 30, 2009. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.
The instant appeal followed.
In her decision, the AJ found that it was undisputed that after five
months on the job, Complainant was counseled for failing to follow proper
leave procedures and was absent without leave (AWOL) on September 11,
2007. Two months later, Complainant failed to show up for training at
the Federal Law Enforcement Training Academy, and asked another trainee
to request leave on her behalf. This resulted in more counseling for
failure to follow leave procedures and for being AWOL. On March 25, 2008,
Complainant received an official reprimand for being AWOL. By May 2008,
Complainant had called in sick fourteen times during the preceding seven
months and she was counseled for abuse of sick leave. Complainant also
received Conduct and Efficiency reports from two different evaluators
that rated her as “Below Average” in five separate job elements.
The AJ also found that the evidence of record showed that on September
14, 2008, Complainant called in at 3:09 p.m. to request eight hours of
sick leave to cover her 4:00 p.m. to 12:00 a.m. shift. Two days later,
the local newspaper reviewed a comedy show performance at the coliseum
that occurred on the evening of September 14, 2008. Accompanying the
article was a prominent picture of Complainant with a friend, smiling
broadly. The picture was taken outside, before the performance began.
As a result, the Agency investigated the matter and concluded that
Complainant was not incapacitated by illness when she called in sick
on September 14. In light of her prior history of attendance issues,
Agency management informed Complainant that they believed she lacked
the qualities expected and needed for continued employment as a law
enforcement officer. She was advised she would not be retained and would
be terminated before her probationary period ended.
The AJ further noted that Complainant did not deny attending the show
after she had called in sick. However, Complainant asserted that she was
experiencing menstrual pain when she called in, but was feeling better by
the time a friend called and invited her to the show. The AJ found that
even assuming Complainant was feeling so ill that she was unable to report
to work at the time she called in, she failed to rebut the Agency’s
contention that the very act of attending the comedy performance shortly
after she had requested sick leave, as well as posing for a picture and
providing her name to the newspaper, created the appearance of impropriety
and demonstrated poor judgment. The AJ concluded that the events of
September 14, combined with Complainant’s history of counseling and
disciplinary action for leave abuse, made it reasonable for management to
question whether Complainant had really been too incapacitated to work,
and there was no reason to believe that the Agency’s actions were in
any way related to Complainant’s sex or perceived national origin.
ANALYSIS AND FINDINGS
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. 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 does not
sit as a fact finder. Id. 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. A disputed 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. Catreet,
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, a hearing is required. 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. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
In addition, 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). She must generally establish a prima facie case
by demonstrating that she was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Constr. 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842
(Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995).
On appeal, we find that Complainant has not identified any genuine
issues of material fact in this case which can only be resolved through
a hearing. While Complainant has argued that she should have had
a chance to have a doctor testify at a hearing that she experienced
painful menstrual cycles, this would not have changed the outcome of
the case. The AJ specifically found that, even assuming Complainant
was incapacitated at the time she called in sick, she exhibited very
poor judgment in later attending the comedy show, posing for a picture
and providing her name to the newspaper. These events, coupled with her
past history of disciplinary action for leave abuse, fully supported
the Agency’s legitimate, non-discriminatory reasons for its actions.
Complainant did not suggest that at a hearing she could produce any
evidence that the Agency’s actions were actually motivated by her
gender or perceived national origin. As such, we find no reason to
overturn the AJ’s conclusion that Complainant has not raised a genuine
issue of material fact requiring a hearing. Accordingly, we find there
is no basis for concluding that the AJ erred in deciding this case by
summary judgment.
Moreover, we conclude that the evidence of record supports the AJ’s
determination that the Agency met its burden to present legitimate,
non-discriminatory reasons for its actions. We find that the Agency’s
explanations were sufficiently clear and specific to afford Complainant
the opportunity to prove pretext. Upon review of the record, we also
agree with the AJ that Complainant failed to prove pretext. In reaching
this conclusion, we find no objective or persuasive evidence from which
a reasonable fact finder could conclude that management’s explanations
were unworthy of belief.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order finding that Complainant was not discriminated
against as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
May 26, 2011
__________________
Date
1 Complainant is not Puerto Rican, but asserted co-workers perceived
her as being so.
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0120100434
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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