0120102347
06-12-2012
Tyrone R. Tawil, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
Tyrone R. Tawil,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120102347
Hearing No. 530-2007-00378
Agency No. HS07ICE000968
DECISION
On April 29, 2010, Complainant filed an appeal from the Agency's April 1, 2010, 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the EEOC's Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and
Whether Complainant established that he was discriminated against based on his national origin and sex when:
1. On numerous occasions, supervisors and coworkers used the term "wet" to refer to Hispanic illegal aliens;
2. On April 6, 2005, management reassigned him to the Public Safety Group, which he considered a punishment;
3. Since August 23, 2005, management denied his repeated requests for reassignment to the Agency's offices in Charleston, South Carolina or Savannah, Georgia;
4. On December 13, 2005, management denied his temporary reassignment to the Charleston office;
5. On December 23, 2005, management denied him the opportunity for a detail to the National Targeting Center; and
6. On September 7, 2006, he learned he was not selected for an Instructor position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator at the Agency's facility in Philadelphia, Pennsylvania. Currently, Complainant is a Senior Special Agent, GS-1811-13, in Savannah, Georgia.
Complainant alleged that on numerous occasions while in his presence the supervisors and special agents in Philadelphia, used the term "wet" to refer to suspected illegal aliens who were Hispanic. Although the Supervisors indicated that they were unaware of Complainant's race, Complainant states that he was "known to speak Spanish and was one of the main translators in the Philadelphia office." Complainant stated that he verbally complained twice to his first level supervisor (S1) about these incidents. However, S1 stated in his deposition that he could not recall whether Complainant ever complained about the use of the phrase "wet." S1 stated in his affidavit that he was aware that in the past there had been use of racial slurs toward certain groups of people.
On April 6, 2005, Complainant was reassigned to the Public Safely Group (PSG). Complainant's supervisors indicated that his reassignment to PSG was in order to give Complainant "more exposure and experience to Immigration." According to Complainant, the assignment was widely considered a punishment within the office. Complainant was told that the reassignment was temporary, and that he would only be there for one to two weeks, but he maintains it became permanent. Complainant initially felt that the "transfer didn't matter" and he "was going to do his job the best he could," and but later felt that the transfer "turned out to be not such a bad deal."
Complainant, on several occasions, verbally requested reassignment to the Charleston, South Carolina area because his wife had been diagnosed with cancer, so he wanted to be closer to his family, who had relocated to that area. The Agency denied Complainant's requests for a non-funded lateral reassignment from Philadelphia, to Savannah, Georgia or Charleston, South Carolina. S3 stated that he talked to the second level supervisor (S2) about Complainant's verbal requests for a lateral transfer. S2 felt that Complainant needed to show progress and initiative on his investigative activities before he could support a transfer. In February 2007, Complainant submitted a written formal request for a lateral transfer to the Atlanta area. Although the request was initially denied because there were no vacancies, it was subsequently approved in March 2007, when a vacancy arose.
Complainant maintained that, unlike in his case, the Agency granted the lateral reassignment requests of other employees who were not of his protected EEO categories and who did not meet the requirements for a lateral reassignment. Specifically, Complainant became aware that a Special Agent (SA1), who is female and non-Hispanic, was laterally reassigned to Baltimore, Maryland on October 29, 2006. SA1 was reassigned despite the fact that she had only graduated from the Academy six months prior to her reassignment and had not yet served a minimum of three years at her first duty station, which is required in order to be eligible for a reassignment. SA1 sought the reassignment to be with her husband, who was a Baltimore fire fighter. On November 8, 2006, Complainant became aware that Special Agent (SA2), who is female and non-Hispanic, was being laterally reassigned to the Washington, DC area. SA2 sought a lateral transfer because she was pregnant and wanted to be with her husband, an Agency employee who had been promoted to a position in Washington, DC.
On December 13, 2005, the Agency denied Complainant the opportunity to be temporarily reassigned for a period of 30 - 60 days to Charleston, South Carolina. The Resident Agent-in-Charge in Charleston (RACC) was working on an investigation in the Hilton Head area and needed someone who could speak Spanish with a technical background and knowledge of the area. After Complainant's name was referred to RACC, RACC asked Complainant whether he would be interested in a 30 - 60 day assignment. A few days later, RACC called Complainant and told him that S3 said they could not spare him.
Again, on December 23, 2005, the Agency denied Complainant the opportunity to be temporarily reassigned for a period of 30 - 60 days to the National Targeting Center (NTC). According to Complainant's deposition, he did not request to be transferred to the NTC; instead, the Chief of the NTC (NTCC) personally called and spoke with S3 requesting Complainant because it was Philadelphia's turn to provide an agent at the NTC, which rotates through the various offices. After NTCC spoke with S1, she made a return call to Complainant. During the call, NTCC stated "don't bother volunteering because S3 denied it."
In 2006, Complainant applied for an Academy Instructor position. All three of Complainant's supervisors - S1, S2, and S3 - supported his application. Headquarters found Complainant to be qualified and forwarded his application package to the Academy. Academy management officials reviewed the 107 applications it received for the necessary skills, knowledge and investigative experience, and contacted the supervisors of the applicants who were deemed best qualified for the position. The reviewing official for this vacancy announcement was the former Unit Chief for Investigations Training (Unit Chief).
The Unit Chief forwarded the list of the best qualified applicants to Selecting Official (Selecting Official) at Headquarters. The Unit Chief, however, did not forward Complainant's name to the Selecting Official because he did not find that Complainant possessed the requisite skill set. Complainant was subsequently removed from consideration. On September 7, 2006, Complainant became aware that he was not selected for an Instructor position at the Academy in Brunswick, Georgia.
On November 14, 2006, Complainant made initial contact with an EEO Counselor. Subsequently, on February 17, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic) and sex (male). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his 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 March 3, 2008, motion for a decision without a hearing and issued a decision without a hearing on March 19, 2010 finding no discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant, in pertinent part, contends that summary judgment was not appropriate because there were genuine issues of material fact. Further, Complainant contends that he has provided sufficient evidence to support his claims of discrimination.
In opposition of Complainant's appeal, the Agency contends that summary judgment was proper because Complainant failed to present sufficient evidence to support his claims of discrimination. In addition, the Agency contends that the Complainant was reassigned to Savannah, GA in March 2007 when a vacancy was posted in February 2007.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond, and he had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that no genuine issues of material fact exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
ANALYSIS AND FINDINGS
Claim (1)
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
The AJ found, in pertinent part, that while Complainant asserted that that on numerous occasions supervisors and co-workers used the term "wet" in his presence, he failed to provide specific instances, or even establish a time frame for when such comments were made. Even assuming all facts in favor of Complainant, we cannot find, based on this record, that Complainant established that the conduct was sufficiently severe or pervasive enough to have altered the conditions of his employment and create an abusive working environment. Like the AJ, we find that Complainant did not provide specific instances, or establish a time frame for when such comments were made. Accordingly, we find that Complainant did not meet element #4 and therefore did not establish he was subjected to unlawful harassment as alleged.
Claims (2) - (6)
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
Claim (2)
Complainant claims that his reassignment to the PSG was another incident of discriminatory treatment. The AJ found that Complainant failed to provide any comparative evidence or to establish a causal connection between his national origin and sex and the reassignment. We also find no persuasive evidence creating an inference that his national origin and/or sex played a role. Moreover, like the AJ, we find no persuasive evidence that the reassignment was an adverse action. Although Complainant maintained that everyone considered it to be a punishment to be assigned to the PSC, he failed to provide evidence to that affect.1 We find that Complainant failed to establish a prima facie case of national origin or sex discrimination.2
Claim (3)
The AJ found that with regard to Complainant's requested reassignments since August 2005, none of the requests were formal written requests with the exception of a January 2007 request to be reassigned to Savannah. According to the Agency, this request was denied because there were no vacancies in Savannah. The Agency noted that lateral reassignments are only approved when a funded, vacant position exists in the gaining office. Although S1, S2, and S3 supported the hardship transfer it was denied in February 2007. On February 28, 2007, an employee in the Savannah office retired; consequently, Complainant's request was approved in March 2007.
Complainant did not present evidence indicating that the Agency's legitimate non-discriminatory reason was a pretext for discrimination based on national origin and sex. In this regard, the record indicates that between August 23, 2005 and January 2007, four other employees of the Philadelphia office submitted reassignment requests. As noted above, SA1 and SA2 were reassigned to Baltimore and Washington, DC, respectively, not Savannah, which fell under the control of the Atlanta Special Agent-in-Charge (ASAC). Furthermore, we note that there was a vacant position in the Baltimore office that SA1 was able to fill. With respect to SA2, her husband was an Agency employee who had been transferred to Washington, DC; therefore, her situation was different from Complainant's. SA3 and SA4, two white male agents, were denied reassignments to Atlanta and Charlotte, respectively. Both denials, by ASAC, were due to a lack of vacancies in the offices.
Claims (4) and (5)
With regard to the denial of details in 2006, the AJ noted that S3 did not approve details to Charleston or to the NTC because Complainant was needed and because he had already been on a detail to the NTC from January through March 2005. The record indicated that details were approved based on the needs of the service and the number of details that an individual had already served. On appeal, Complainant maintained that by denying the request that he be detailed to the NTC, "the United States was not getting the best person[nel] available." We find that Complainant did not present evidence indicating that the Agency's legitimate non-discriminatory reason was a pretext for discrimination. We note that Title VII does not protect against unfair or unwise business decisions - only against decisions motivated by unlawful discriminatory animus.
Claim (6)
With regard to the non-selection, the AJ correctly found that Complainant, although considered qualified for the position at issue, was not found to be one of the best qualified; therefore, his name was not forwarded to the Selecting Official. According to the Agency, Complainant was not selected because he did not have the requisite skill set, i.e., investigative or immigration experience, because he was a former Customs Service employee. Complainant has not presented evidence to show that he was more qualified than the person who was selected for the position or that the Agency's non-selection involved his national origin or sex. As the AJ indicated, Complainant failed to refute the Agency's reasons or establish that such reasons are a pretext for discrimination.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission AFFIRMS the Agency's final action.
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
__6/12/12________________
Date
1We note that, in addressing the AJ's issuance of a decision without a hearing, Complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
2 Even if Complainant had established a prima facie case of national origin and sex discrimination, we find that the Agency provided a legitimate, non-discriminatory reason for the reassignment, i.e., which was to provide Complainant with Immigration experience. Complainant, we note, failed to show that the Agency's reason was a pretext for discrimination.
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01-2010-2347
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0120102347