0120110638
01-31-2013
Victor M. Flores, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Victor M. Flores,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120110638
Hearing No. 451-2010-00191X
Agency No. HS-10-CBP-000241
DECISION
On October 27, 2010, Complainant filed an appeal from the Agency's September 24, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination when he was transferred to a position that had a lower performance level.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Aviation Enforcement Officer, GS-11 at the Agency's facility in Laredo, Texas. Prior to February 2007, Complainant was employed by the Agency as Supervisory Border Patrol Agent, GS-1896-12. On or around February 8, 2007, Complainant was selected for the position of Air Interdiction Officer (Pilot Trainee) ("AIO"), GS-1801-11, with a full performance level ("FPL") of GS-13. The AIO position, at GS-11, was one grade level lower than Complainant's GS-12 supervisory position and, effective March 18, 2007, Complainant's GS level was downgraded to a GS-11.
Complainant's placement in the AIO position was subject to his successful completion of a training program that would qualify him for the position of Air Interdiction Agent, GS-1801- 12/13 ("AIA"). Complainant's "Notification of Personnel Action" advised that if he was unsuccessful in completing this training, he would be reassigned to a non-trainee law enforcement position. Unfortunately, Complainant failed his AIO final flight evaluation and therefore, the Agency was required to reassign him.
In May 2009, Complainant asked the Director if he could be transferred to an Aviation Enforcement Officer, GS-1801-12 ("AEO") position; Complainant's request was approved effective June 21, 2009. The Director told Complainant that he would recommend that he be reassigned at a GS-1801-12 pay grade. The Director of the Southwest Border reassigned Complainant at a pay grade of GS-1801-11. Complainant believed that the decision to assign him to the GS-11 position instead of a GS-12 position was made because of his national origin.
On November 13, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of national origin (Hispanic) when he was assigned to a GS-11 pay grade instead of a GS-12 pay grade.
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, however, prior to the hearing, the AJ ordered the parties to submit briefs on the issue of summary judgment. On August 23, 2010, the Agency filed a motion seeking summary judgment in its favor, and Complainant filed a brief in opposition. The AJ determined that this matter was ripe for a decision without a hearing. The AJ found that Complainant failed to establish a prima facie case of discrimination based on national origin because he failed to show that he was similarly situated to the comparators that he provided. The AJ noted that the comparators provided were employed in different positions and at different pay grades than Complainant.
Nevertheless, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was reassigned to a new position as a result of a performance failure and he was assigned at the GS-11 pay grade because he was acquiring new duties and responsibilities. Management maintained that Complainant like everyone else was required to demonstrate his ability to meet performance levels prior to promotion, especially after a performance failure. Management also maintained that Complainant was eligible for promotion after a year of successfully completing the GS-11 pay grade. Moreover, management maintained that while the Director did recommend that Complainant be given the position at a GS-12, pay grade that was merely a recommendation and Human Resources own review of Complainant's resume ranked him at the GS-11 pay grade. To show pretext, Complainant maintained that discriminatory animus was involved because the Director of the Southwest Border never introduced himself. The AJ found that Complainant failed to show that the Agency's reasons were pretext for discrimination. The AJ found that Complainant failed to demonstrate that he was discriminated against as he alleged. 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 contends that the AJ impermissibly denied him an opportunity to develop the record sufficiently to withstand summary judgment and to prove his case at a hearing. Specifically, Complainant argues that the AJ should have allowed him to conduct discovery, in spite of the fact that Complainant admittedly missed his deadline to initiate discovery.
In response, the Agency requests that the AJ's decision finding no discrimination be affirmed.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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
In the instant case, the Commission finds that a decision without a hearing was appropriate because the evidence shows that the record was properly developed and there are no material facts at issue. In response to Complainant's contentions on appeal, we find that the record shows that Complainant was given the opportunity to request discovery, in addition to the information that was already in the Report of Investigation. However, Complainant failed to do so and failed to respond to information submitted by the Agency. Moreover, our review of the record indicates that it was adequately developed.
Accordingly, we will continue with our analysis. We find that assuming arguendo that Complainant established a prima facie case of national origin discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was placed in the GS-11 pay grade following a performance failure. Management explained that he was being placed in a new position and had new responsibilities so therefore he was placed in the GS-11 pay grade. Further, management showed that a Human Resources employee had rated Complainant's experience to be at the GS-11 position. We find that other than Complainant's conclusory statements, he has provided no evidence which shows that the articulated legitimate, nondiscriminatory reasons were pretext for discrimination. We find Complainant has failed to demonstrate that he was subjected to discrimination.
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 which found Complainant failed to show that he was subjected to discrimination.
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
__1/31/13________________
Date
2
01-2011-0638
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110638