0120063834
02-02-2007
Victor J. Renaghan, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Victor J. Renaghan,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200638341
Hearing No. 370A50452x
Agency No. HS04CBP000682
DECISION
JURISDICTION
On June 15, 2006, complainant filed an appeal from the agency's May
11, 2006 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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 events giving rise to this complaint, complainant worked
as an Assistant Port Director at the Port of Honolulu in Honolulu,
HI. On July 20, 2004, complainant contacted an EEO Counselor and
filed a formal EEO complaint on September 6, 2004, alleging that he
was discriminated against on the bases of race (Caucasian) and age
(D.O.B. 10/20/33) when he was suspended for ten days and reassigned to
a position as a Program Manager in San Francisco, California.2
At the conclusion of the investigation, complainant was provided 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. The AJ assigned to the case considered the agency's
motion for a decision without a hearing and over the complainant's
objections, issued his decision granting the agency's motion on March
7, 2006. The agency subsequently issued a final order adopting the AJ's
decision finding no discrimination.
DECISION OF THE ADMINISTRATIVE JUDGE
According to the AJ's decision, the complaint concerned the agency's
determination to suspend and remove complainant from his position as
Assistant Port Director following an investigation into reports of his
misconduct.3 More specifically, the agency's investigation revealed
that complainant had allegedly threatened his supervisor with bodily
harm and engaged in a pattern of violence and inappropriate conduct.
According to the AJ's conclusions, the evidence revealed that complainant
had confrontations with staff members and agency officials in which he
expressed extreme displeasure with his immediate supervisor. The record
indicates that complainant stated that, "I could have him killed" and
referred to his supervisor as "a f----ing bastard." Complainant also
indicated, among other similar statements, that he could hire a "hit man"
to take care of his problems and that he knew from his military experience
how to "cut the throats" of his enemies. The AJ found that the agency's
investigation into complainant's conduct was supported by the statements
of several witnesses and that complainant did not sufficiently controvert
the evidence against him such that a hearing was necessary. In addition,
the AJ found that complainant offered no evidence that others outside
of his protected class were treated more favorably or that the agency's
actions to issue disciplinary action were unfounded and instead, were
motivated by discrimination. For these reasons, the AJ found the agency
did not discriminate against complainant on the basis of his age or race
when it decided to discipline him for his actions.
CONTENTIONS ON APPEAL
On appeal, complainant contends that there are genuine issues of material
fact which needed to be resolved at an evidentiary hearing. He claims
that the witness testimony against him was faulty and should not have
been believed, and that the agency's investigative process was flawed.
Complainant further contends that the AJ failed to consider that he was
subjected to a hostile work environment because of his age and that there
was evidence that others were treated more favorably. The agency did
not submit additional comments on appeal and rests on its final decision.
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 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").
ANALYSIS AND FINDINGS
We must first determine whether the AJ was correct to grant the agency's
motion for summary judgment. In this regard, several principles apply.
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). 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.
In our review of the record before us, the Commission finds that the AJ's
grant of summary judgment was correct. The Commission notes that the
record was adequately developed as there was complete documentation of the
investigation conducted against complainant, its table of offenses and
progressive penalties, as well as sufficient evidence gathered relevant
to complainant's EEO complaint. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). We are also satisfied that
complainant was given adequate notice and an opportunity to respond to
the agency's motion for a decision without a hearing.
The record is undisputed that agency employees reported alarming physical
threats that complainant had made against an agency official which were
then investigated pursuant to agency policy. In particular, the Trade
Compliance Supervisor (63 years old; Portugese/English) a subordinate of
complainant, reported to agency officials that complainant made numerous
derogatory and demeaning remarks about the Port Director because he was
younger, that he threatened to kill him, would express extreme anger
and talk about killing people. Her statement was corroborated by the
Chief Inspector (45 years old; Japanese/Chinese) who also personally
witnessed complainant's threats directed at the Port Director indicating
that he wanted to kill him and as well as complainant's claim that he
had connections with people who could have the Port Director killed.
The Field Director (45 years old, Caucasian) who was assigned to
conduct the investigation, determined that certain charges should be
sustained based on the testimony, but that a proposed demotion to a
non-supervisory position was too harsh a penalty. He also considered
the fact that complainant had a previous disciplinary action against
him involving misuse of a government credit card and concluded that he
should be suspended and reassigned to another office.
In response, complainant admitted that he had cursed and had made
"mistakes" in using a government credit card, but he argued that
the witnesses were motivated by their desire to make him retire.
Although complainant contested that he threatened the Port Director,
he did not offer any evidence suggesting that the agency was motivated
by his age or his race in conducting an investigation into his conduct.
Significantly, complainant failed to offer any evidence that another
supervisor had made physical threats of bodily harm against an agency
official but had not received any discipline. 4 Thus, the AJ was correct
in concluding that there were no genuine disputes of material fact which
would have required an evidentiary hearing.
CONCLUSION
For the reasons outlined above, the Commission concludes that the AJ's
decision without a hearing was appropriate as there were no genuine
issues of material fact to be decided. The Commission finds based on a
de novo review of the record that the agency did not discriminate against
complainant and accordingly, we affirm the agency's final decision. 5
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
___ 2-2-07_______________
Date
1 Due to a new data system your case has been re-designated with the
above referenced appeal number.
2 Complainant later requested an amendment to his complaint to add a
claim of harassment based on age when his subordinates made derogatory
remarks about his age. The agency accepted the amendment as background
evidence of discrimination on October 5, 2004.
3 The record disclosed that the agency proposed to demote complainant and
reassign him but not to remove him from his position as the AJ stated.
4 Complainant must generally satisfy a tri-partite test set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) where no direct
evidence of discrimination exists. When a complainant alleges that
he or she has been disparately treated by the employing agency as a
result of unlawful age discrimination, "liability depends on whether
the protected trait actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).
5 The Commission will not address complainant's claim of harassment since
the agency did not accept it as a separate claim but only as background
evidence of his age discrimination claim.
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0120063834
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063834