Christopher Saenz, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, (Bureau of Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionApr 24, 2007
Appeal No. 01200520201 (E.E.O.C. Apr. 24, 2007)

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