0120053821
03-02-2007
Homero Salmon, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Homero Salmon,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0120053821
Agency Nos. HS-04-0214; TD 03-2194
DECISION
On April 19, 2005, complainant filed an appeal from the agency's March 17,
2005, final decision (FAD) 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 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 decision (FAD).1
On January 28, 2003, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of national origin (Hispanic)
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when he was issued a Letter of Reprimand on
October 8, 2002.
The record reflects that complainant was employed as a Senior Customs
Inspector (SCI), GS-1890-11, at the agency's Customs Service facility at
Gateway Bridge in Brownsville, Texas ("facility"). In April of 2002,
complainant was identified as being a complainant in an EEO class
complaint against the agency, relating to the alleged conduct of the
facility's Assistant Port Director (APD; Non-Hispanic). On October
8, 2002, complainant was reprimanded by the facility's Port Director
(PD; Hispanic), based on three (3) instances of unprofessional conduct.
The agency alleged that on June 14, 2002, complainant was rude and used
profanity to a non-Hispanic, off-duty Border Patrol Agent. On June 18,
2002, the agency alleged that complainant was rude to the non-Hispanic
Supervisory Canine Enforcement Officer (Officer), questioned his authority
and stating that he did not have to check with the Officer on needing
supervisory authority. In addition, the agency alleged that on June
18, 2002, when the Chief Canine Enforcement Officer (Chief Officer;
non-Hispanic) requested a statement regarding the incident with the
Officer, and complainant initially declined providing the Chief Officer
with a statement, although he later did give the statement.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that
he was subjected to discrimination as alleged.
The agency issued a FAD stating that complainant was not issued the
Letter of Reprimand for discriminatory or retaliatory reasons. In so
finding, the decision found that complainant had not proven that the
legitimate, nondiscriminatory reasons asserted by the agency for imposing
the discipline to him "was a lie" or was more likely than not a pretext
for discrimination or retaliation2.
The FAD found that the PD denied knowledge of complainant's prior EEO
activity, and stated that she was the sole management official involved
in recommending or making the decision to discipline complainant.
The FAD noted that the PD stated that the discipline was imposed as it
was consistent with agency disciplinary guidelines. The FAD also noted
that the conduct could have merited up to a three-day suspension, if the
PD had chosen to impose it. The FAD found that with the exception of the
June 14, 2002 incident, complainant admitted the conduct for which the
discipline was imposed. However, complainant stated that the Officer
provoked him and that the Chief Officer demanded a statement and he
initially resisted her demand. Complainant alleged he was disciplined
due to his national origin as neither the Officer or the Chief Officer
were disciplined despite being rude to him, and neither is Hispanic.
Complainant also alleged that the PD failed to discipline the APD and
other Caucasian subordinates for being rude.
The FAD found that on the issue of disparate discipline, the Officer
was not disciplined for incidents involving other Hispanic SCIs, but
these incidents were not comparable. In so finding, the FAD found
that the Officer was not acting in a supervisor-subordinate role with
either SCI, and was not rude to them while they were supervising him.
Further, the FAD noted that there was no indication that the PD was
aware or involved in the disciplinary decisions involving the Officer.
Conversely, the FAD found that complainant was reprimanded for being
rude to individuals who were his supervisors at the time, and as such the
agency articulated legitimate, nondiscriminatory reasons for its actions.
In addition, the FAD found that the fact that the PD is herself Hispanic
made it less likely that she would discriminate against complainant due
to his Hispanic heritage.
Addressing complainant's allegation of retaliation, the FAD found that the
temporal proximity between complainant's April 2002 class action and the
discipline issued in October of 2002 was too long an interval to support a
causal nexus. The FAD found that complainant did not adduce any evidence
of retaliation, and noted that the PD stated at the time the discipline
was issued, she was not aware of complainant's prior EEO activity.
As such, the FAD found that as complainant admitted the conduct which
served as the basis for the discipline at issue, he failed to establish
a prima facie case of retaliation. In so finding, the FAD noted that
the PD could have issued a more harsh discipline for the conduct, but
chose not to. The FAD found that the fact that the PD issued only a
written reprimand for three (3) instances of unprofessional behavior made
it less likely that she was motivated by discriminatory or retaliatory
animus against complainant. Finally, the FAD noted there were a number
of instances where some non-Hispanic employees were not disciplined for
unprofessional conduct when complainant believed they should have been.
Complainant also alleged that the standards of conduct for Hispanic
employees was harsher than it was for Caucasian employees after filing
the class action. However, the FAD found that while complainant failed
to meet his burden in proving discrimination and/or retaliation, it did
not endorse the decisions or events at issue regarding discipline given
to various facility employees.
Complainant alleged on appeal that the issues of retaliation and
harassment were not properly investigated by the agency. In addition,
complainant alleged that the PD has had several EEO complaints filed
against her since 2002, of which he is a participating complainant, and
thus she was aware he had prior EEO activity. Complainant also alleges
that Caucasian employees were unprofessional and were not disciplined
or sent to EAP counseling by the PD. In response to complainant's
appeal, the agency alleged that the FAD properly found that there was
no discrimination in the instant case. In addition, the agency alleged
that complainant's appeal should be dismissed as he previously filed a
civil action in September of 2004 alleging EEO violations by the agency,
prior to receiving the FAD in the instant case. The agency also alleges
that complainant failed to establish that the PD was aware of his prior
EEO activity at the time the discipline at issue was determined.
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 EEOC Management
Directive 110, 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").
Regarding complainant's allegation of national origin discrimination,
we find that the record supports the testimony of the PD regarding
the agency's articulated reasons for issuing the Letter of Reprimand
to complainant. The record reflects that complainant was issued the
Letter due to three (3) incidents where he was found to be acting in an
unprofessional manner to a superior at the facility. Significantly,
we find the record void of any evidence suggesting that complainant's
national origin played any role in the decision of the PD to issue
the Letter of Reprimand to complainant. Despite complainant's
allegations, the fact that the PD is herself Hispanic makes it less
likely that she would discriminate against complainant due to his Hispanic
heritage. Similarly, we find the evidence supports the FADs determination
that the instances cited by complainant, in which non-Hispanic facility
employees were unprofessional but were not disciplined, did not involve
situations where the employees at issue acted in an unprofessional manner
to superiors. FAD at 3. The FAD found that complainant was issued the
Letter for being unprofessional to two (2) facility employees who were in
supervisory positions over him. We concur with the FAD's decision that
none of the actions taken by the PD were shown by complainant to have
been motivated by discrimination. Regarding complainant's allegation of
retaliation, we note that even if the PD was aware of complainant's prior
EEO activity at the time she issued the Letter of Reprimand, the agency
articulated legitimate, nondiscriminatory reasons for the PD's actions,
as previously stated.
We find that complainant has not rebutted the agency's legitimate,
non-discriminatory reasons for issuing him the Letter of Reprimand.
The Commission finds that the FAD's findings of fact are supported by
the record, and the decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We discern
no basis to disturb the FAD and it is AFFIRMED.
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
____3/2/07______________
Date
1 Due to a new data system, your case has been redesignated with the
above-referenced appeal number.
2 The FAD noted that the PD referred complainant to the Employee
Assistance Program on June 18, 2002, and complainant alleged this incident
as evidence of discrimination and/or retaliation. However, the FAD noted
that this issue was not accepted for investigation by the agency, and,
in any event, complainant failed to proffer evidence that this referral
was initiated due to national origin discrimination or retaliation.
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0120053821
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120053821