0120113513
08-16-2013
Charles E. Newcomer, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Charles E. Newcomer,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120113513
Agency No. HS-CBP-00051-2011
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's May 27, 2011 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Border Patrol Agent (BPA), GS-1896-12, at the Agency's Marfa Sector Intelligence Unit in Texas. Complainant's appointment as a Supervisory BPA was subject to an 18-month probationary period, which began on April 11, 2010.
On May 1, 2010, while off duty, Complainant was arrested and charged with Driving While Intoxicated (DWI).1 The Agency, after receiving notice of Complainant's arrest, conducted an administrative inquiry and issued a report with its findings on August 26, 2010.
On September 10, 2010, the Deputy Chief Patrol Agent (DC) issued Complainant a letter removing him from his Supervisory BPA position and reassigning him to his former nonsupervisory Lead BPA position. The letter cited Complainant's DWI arrest and indicated that his conduct had been unacceptable during his probationary period. The letter stated:
This behavior does not exemplify a positive image and exhibits poor leadership skills for the position you hold as a Supervisory [BPA]. As a Supervisory BPA, you are held to a higher standard. Supervisors and employees alike are expected to conduct themselves in a professional manner and serve as a role model for other [BPAs] and the public we serve at all times. Your actions have not only brought discredit upon you, but also reflect negatively upon the Agency and Border Patrol as well.
On or about September 21, 2010, Complainant spoke to the Assistant Chief Patrol Agent (AC)2 and explained that he wanted to contact an EEO Counselor about his reassignment. AC gave Complainant the appropriate contact information.
In a September 28, 2010 memorandum, AC informed the Labor and Employee Relations Specialist that he proposed suspending Complainant for five days because Complainant's DWI arrest was conduct unbecoming of a law enforcement officer.
On November 4, 2010, AC issued Complainant a notice of proposed five-day suspension for conduct unbecoming an officer. The notice cited Complainant's DWI arrest and indicated that his poor judgment on that date reflected negatively on the Agency. On or about January 25, 2011, DC issued a decision to suspend Complainant for five days.
On December 22, 2010, Complainant filed an EEO complaint alleging that:
1. The Agency discriminated against him on the basis of age (45) when, in September 2010, it removed him during his probationary period from his Supervisory BPA position and reassigned him to his former Lead BPA position; and
2. The Agency discriminated against him on the basis of reprisal for prior protected EEO activity (pursuing the instant EEO complaint) when, in November 2010, it issued him a notice of proposed five-day suspension.
The Agency accepted both claims for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). Regarding claim 1, the decision concluded that Complainant failed to prove that the Agency discriminated against him on the basis of age. Regarding claim 2, the decision dismissed it pursuant to 29 C.F.R. � 1614.107(a)(5), for alleging that the proposal to take a personnel action is discriminatory.
Agency's Dismissal of Claim 2
As an initial matter, we find that the Agency improperly dismissed claim 2 for alleging that a proposal to take a personnel action is discriminatory. EEOC regulation
29 C.F.R. � 1614.107(a)(5) provides, in pertinent part, that an agency shall dismiss a complaint that alleges that a proposal to take a personnel action is discriminatory. The Commission notes that where an individual received EEO counseling on a proposed action and the agency ultimately carries out the proposed action, the otherwise premature allegation merges with the effectuated action. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 9, 1997); Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991). While the November 4, 2010 letter indicated that the suspension was a proposed action, the record reveals that Complainant was subsequently suspended for five days on or about January 25, 2011. ROI, at 69, 78, and 230. Because the suspension that Complainant contemplated actually occurred, the premature claim merges with the effectuated action. Complainant has therefore shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Although the Agency improperly dismissed claim 2, we note that it did so after initially accepting the claim and investigating the claim. Our review of the record reflects that it is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. See 29 C.F.R. � 1614.108(b). Accordingly, we will address the merits of claim 2 below.
Disparate Treatment - Claims 1 and 2
Upon review, we find that Complainant failed to establish that the Agency discriminated against him on the bases of age or reprisal for prior protected EEO activity when it reassigned him and suspended him.
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, the Agency reassigned him and suspended him because his May 1, 2010 DWI arrest was unacceptable conduct.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reason was a pretext for discrimination. Although Complainant raised several arguments on appeal, we find that he failed to show that the Agency's reason was pretextual. We will address Complainant's arguments below.
First, regarding claim 1, Complainant argued that his reassignment was unwarranted because the Agency failed to show a nexus between his off duty conduct and his performance as a Supervisory BPA. The record, however, reflects that the Agency's policies specifically address off duty conduct by employees. For example, Section 6.5 of the Border Patrol Handbook states that "although the [Agency] has little control over the conduct of its employees when off duty, such conduct may become of direct and immediate concern to the [Agency] ... Agents are expected to obey the laws of our country ... It behooves all Border Patrol Agents, therefore, to behave in such a manner that their conduct will be above reproach." ROI, at Ex. F8b. In addition, CBP Directive No. 51735-13, Standards of Conduct and the Officers' Handbook (M-68) include similar language concerning employee off duty conduct. ROI, at Ex. F8c-d. Based on the above, we find that the Agency's consideration of Complainant's off duty conduct is insufficient to demonstrate pretext.
Second, regarding claim 1, Complainant argued that the Agency did not similarly reassign a younger Supervisory BPA who had a public intoxication arrest during the supervisory probationary period. The record, however, reflects that the Agency did not consider the younger Supervisory BPA's arrest to be conduct of comparable seriousness. Specifically, DC testified that, in his opinion, a public intoxication arrest was less serious than a DWI arrest. ROI, Ex. F2, at 5. Based on the above, we find that the Agency's decision to treat the younger Supervisory BPA's public intoxication arrest differently than Complainant's DWI arrest is insufficient to demonstrate pretext.
Third, regarding claim 2, Complainant argued that the Agency did not contemplate his suspension before he pursued the instant EEO complaint. The record reflects that the first document mentioning Complainant's suspension was dated shortly after Complainant spoke with AC about contacting an EEO Counselor. We find, however, that this temporal inference of retaliation is dispelled by the Agency's actions towards other Supervisory BPAs and BPAs who had alcohol-related arrests. Specifically, the record reflects that the Agency disciplined other Supervisory BPAs and BPAs for alcohol-related arrests by suspending them (one-day, five-day, and ten-day suspensions) or terminating them. ROI, at Ex. F13. Based on the above, we find that the short time between Complainant's prior EEO activity and the suspension is insufficient to demonstrate pretext.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that age or reprisal discrimination occurred.
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
___8/16/13_______________
Date
1 The charge was later dismissed after Complainant completed a pre-trial diversion program.
2 AC retired from the Agency in December 2010 and declined to provide an affidavit for the EEO investigation.
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0120113513
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113513