Appeal No. 01200520201
04-24-2007
Christopher Saenz, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Bureau of Customs and Border Protection), Agency.
Christopher Saenz,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Bureau of Customs and Border Protection),
Agency.
Appeal No. 01200520201
Hearing No. 370-2004-00423X
Agency No. CBP04W005
DECISION
On January 7, 2005, complainant filed an appeal 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is deemed timely and is accepted for the Commission's de novo
review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
an Immigration Inspector at the Customs and Border Patrol, San Francisco
International Airport in San Francisco, California. On September 26,
2003, complainant sought EEO counseling, and on November 18, 2003,
filed an EEO complaint alleging that he was discriminated against on
the bases of race/national origin (Hispanic), sex (male), and disability
(gender dysphoria) when:
1. On October 7, 2003, he was instructed by his supervisor to document
all his daily tasks; and
2. On March 2, 2004, he received a written counseling memorandum which
threatened future disciplinary action for his alleged failure to follow
the chain of command.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. On August 31, 2004, the AJ assigned to the case
issued a "Notice of Intent to Issue a Decision Without a Hearing."
Over complainant's objections, the AJ issued a decision without a hearing,
in favor of the agency, on October 4, 2004.
In her decision, the AJ apparently assumed arguendo that complainant
established a prima facie case of discrimination, and found that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, as to issue (1), management stated that complainant
was only performing collateral administrative duties at the time,
and management wanted to make sure that he was busy performing those
duties to which he was currently limited. As to issue (2), management
issued the memorandum because of complainant's failure to follow the
chain of command when he reported an incident. Addressing pretext,
the AJ found that complainant presented no contrary evidence as to the
agency's reason for issue (1), and noted that complainant acknowledged
that the incident did not constitute an adverse employment action
because there were no repercussions from it. The AJ found that as
to (2), complainant asserts that he simply made an innocent mistake.
The AJ concluded that the record contains no evidence that the actions
were motivated by discriminatory animus.
The record does not contain a final order from the agency. Thus, we
assume that no final action was ever taken by the agency. However, when
the agency failed to issue a final order within forty days of receipt
of the AJ's decision, the AJ's decision finding that complainant failed
to prove that he was subjected to discrimination as alleged became the
agency's final action pursuant to 29 C.F.R. � 1614.109(i).
On appeal, complainant reiterates his argument that he has been subjected
to unlawful discrimination. Additionally, complainant asserts on appeal
that issue (3) (an allegation that a supervisor assaulted him on August 5,
2003) was improperly dismissed by the agency by letter dated April 30,
2004. Complainant states however, that he informed the EEO Counselor
about the incident 21 days later, on September 26, 2003. However,
September 26, 2003 was 52 days after August 5, 2003, and therefore, the
claim was untimely raised before an EEO Counselor, and properly dismissed.
We further find that the other issues were properly dismissed.3
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. In this case,
it was appropriate for the AJ to issue a decision without a hearing.
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).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
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 United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 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, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo that complainant is an individual with a disability, and
that he otherwise established a prima facie case of discrimination on the
alleged bases, the agency has articulated legitimate, nondiscriminatory
reasons for both of its actions. Even viewing the evidence in the light
most favorable to complainant, he has not presented any evidence from
which a reasonable fact-finder could conclude that the agency actions in
question were motivated by discriminatory animus. Accordingly, based on
a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the decision finding
no discrimination.
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
April 24, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The memorandum stated that on March 1, 2004, complainant reported an
incident (wherein someone had forced a metal object into his bicycle
tire) to the Assistant Port Director, thereby failing to follow the
chain of command. The memorandum advised that complainant should have
first reported the incident to his duty supervisor.
3 In the record, complainant has described some harassing comments
(relating to his national origin and sexual identity) which were allegedly
made to him by other employees which, if true, were extremely egregious
and inappropriate. We remind complainant however, that in order for a
harassment claim to be considered timely, he must seek EEO counseling
within 45 days of the most recent harassing incident. 29 C.F.R. �
1614.105(a)(1).
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0120052020
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036