0120100435
08-02-2011
Andrea G. Perez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Andrea G. Perez,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0120100435
Hearing No. 451-2009-00132X
Agency No. HS09CBP001861
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s October 13, 2009 final order concerning
her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant had
graduated from the Border Patrol Academy and worked as a Border Patrol
Agent Intern at the Agency’s Border Patrol Station (El Paso Sector)
facility in Lordsburg, New Mexico. On January 22, 2009, Complainant filed
a formal complaint alleging that the Agency discriminated against her
on the bases of national origin (Hispanic), sex (female), and color
(Brown), when on October 22, 2008, she was terminated during her
probationary period.
The record reflects that Complainant was hired under Title 5 of the Code
of Federal Regulations, Section 213.3202(o) as a federal career intern
probationary employee. As a probationary employee, she was subject to a
two year probationary period wherein her performance would be assessed for
performance, conduct, and general suitability for continued employment.
On September 30, 2008, Complainant's supervisor, the Supervisory Border
Patrol Agent (SBPA), witnessed a clearly inappropriate webpage open on
Complainant's computer during the taking of a required exam. Based upon
an Agency investigation into the alleged cheating, including Complainant's
admission that she did have the webpage open and knew that it was not
authorized, the deciding official determined that the incident put into
question Complainant's honesty and integrity. The deciding official
determined termination was the appropriate outcome for Complainant.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing within the time frame provided in 29 C.F.R. § 1614.108(f).
On September 15, 2009, the AJ issued a decision after a hearing finding
no discrimination. In reaching this decision, the AJ determined that
even if Complainant could establish a prima facie case, the Agency had
articulated legitimate, nondiscriminatory reasons for Complainant’s
termination. Agency management explained that as part of the Agency’s
post academy training for Border Agent Patrol Interns, the trainees
were required to take monthly exams on the computer that consisted of
thirty (30) questions for which the trainees were allotted one hour.
On September 30, 2008, five trainees, including Complainant, took their
fifth of these monthly exams. On that day, prior to the test, the
Post Academy Training Instructor (PATI) introduced a new website to the
trainees called CBP Secure Net. This website was a study and test taking
tool that contained material and answers for the exam that the trainees
would take on that day, September 30, 2008. On September 30, 2008,
at some point during the taking of the exam, Complainant maximized and
opened the CBP Secure Net website so that it was visible on her screen.
The SBPA entered the room from behind Complainant in a position where
she could view all of the trainee's screens, including Complainant's.
The SBPA was in a position with Complainant's back to her. The SBPA
moved in behind Complainant and actually viewed the CBP Secure Net
website populated and open on her screen. The SBPA immediately accused
Complainant of cheating. The other trainees did not have the CBP Secure
Net website maximized or populated at any time during the taking of the
exam. Based upon these events, Complainant, the PATI, SBPA, and other
classmates were required to submit memorandums regarding the events.
Neither the PATI nor SBPA made a recommendation of any kind regarding
the outcome of this investigation or discipline. The Deputy Chief Patrol
Agent (Deputy) was forwarded the statements and was the deciding official
regarding discipline. The Deputy reviewed various statements in this
matter and determined that this incident put into question Complainant's
honesty and integrity and showed a lack of judgment. The Deputy further
determined that termination was the appropriate action for Complainant
after considering all of the evidence presented to him.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held.
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). She
must generally establish a prima facie case by demonstrating that
she 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).
On appeal, Complainant asserts, inter alia, that the Agency conducted an
inadequate investigation in this matter, and the AJ did not allow her to
fully prove her case at hearing. However, the record reflects that the
record was sufficiently developed to determine whether there should be
a finding of discrimination in this matter. Also, the record reflects
that the AJ approved Complainant's witnesses and allowed Complainant to
fully present her case at hearing but Complainant was unable to show
that she had been discriminated against by the Agency. Even assuming
Complainant established a prima facie case on all bases, Complainant
has not produced evidence to show that the Agency’s explanations are
a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the final Agency order because
the Administrative Judge’s ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
August 2, 2011
__________________
Date
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0120100435
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100435