Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Sep 19, 2013

0120113786 (E.E.O.C. Sep. 19, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120113786

Hearing No. 520-2010-00465X

Agency No. HS 10-CBP-004842

DECISION

Complainant filed an appeal from the Agency’s July 1, 2011 Final Order 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.
For the following reasons, the Commission AFFIRMS the Agency’s Final Order finding no
discrimination.

BACKGROUND

Complainant was previously employed as a Customs and Border Patrol (CBP) Officer at the
Agency’s John F. Kennedy (JFK) Airport facility in New York. On May 19, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (Hispanic), national origin (Hispanic), religion (Muslim), and in reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

On March 15, 2010, Complainant learned his request to be reinstated as a Customs
Border and Protection (CBP) Officer at JFK Airport was denied.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing. Over Complainant's objections,
the AJ assigned to the case granted the Agency’s February 16, 2011 motion for a decision
without a hearing and issued a decision without a hearing on June 17, 2011, finding no
discrimination.
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In her Decision, the AJ found that the material facts were not in dispute. Specifically, the AJ
found that Complainant accepted a position with the Immigration and Customs Enforcement
Agency (ICE) (Complainant had resigned from his CBP position) and was scheduled to be
sworn in to that position on April 13, 2009. Complainant, the AJ found, did not attend the
ceremony after he was detained by authorities during his commute on the Long Island Railroad
(LIRR) that morning. The AJ noted that Complainant alleged he was detained after the
conductor saw an Arabic prayer in Complainant’s possession when Complainant was asked to
present his train ticket to the conductor. The AJ considered Complainant’s contention that
representatives from CBP and ICE were present while he was detained, and that Complainant
was ultimately cleared of all charges related to his train trip that morning. ICE, the AJ found,
later rescinded its offer of employment because Complainant failed to report as scheduled for
the swearing-in ceremony. Complainant, in turn, sought reinstatement to his former position
at CBP.

The AJ found that by letter dated October 26, 2009, Complainant requested reinstatement to
his former position with CBP. Complainant was instructed, the AJ found, to submit specific
documentation to the Agency including evidence regarding the disposition of his detention and
arrest on the morning of his swearing-in ceremony. Complainant complied. By letter dated
January 12, 2010, the Agency declined Complainant’s request for reinstatement.1

The AJ found that Complainant’s request for reinstatement was denied by the Agency because
D1, the Port Director at JFK, was notified that the Agency’s New York Field Office would not
approve any further personnel actions and that she was not to initiate any new personnel
actions until authorized.

The AJ noted that Complainant filed an EEO complaint against ICE regarding its rescission of
his employment offer.2

The AJ found, however, that D1 was not informed that Complainant
had filed the complaint against ICE until April 2010. Accordingly, the AJ found that
Complainant did not establish a prima facie case of reprisal discrimination because he did not
present evidence that D1 was aware of his protected activity at the time D1 declined
Complainant’s request for reinstatement.
Further, the AJ found that Complainant failed to establish a prima facie case of discrimination
based on his race, national origin, or religion. The AJ noted no dispute in the evidence that
the Agency was not involved in Complainant’s arrest by authorities during his commute on the

1In its motion for a decision without a hearing, the Agency states Complainant received the
January 12, 2010 declination letter on March 15, 2010.
2 In v. Dep’t of Homeland Sec., EEOC Appeal No. 0120102029 (June 24, 2011), req. for
reconsideration denied, EEOC Request No. 0520110602 (Jan. 6, 2012), the Commission
affirmed the Agency’s dismissal of Complainant’s complaint regarding rescission of his
employment offer because Complainant’s EEO contact was untimely.
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LIRR until after the conductor initiated steps to detain Complainant upon asking Complainant
to present his train ticket.

Additionally, the AJ found the undisputed evidence showed that D1 was informed in October
2009, that no further personnel actions would be processed. The AJ found Complainant
presented no evidence to show that the Agency’s reasons for denying Complainant’s
reinstatement were a pretext to mask discrimination. Rather, the AJ found the hiring freeze in
effect at the time Complainant’s request was considered, prevented D1 from processing
Complainant’s request.

The AJ concluded that the material facts were not in dispute and, resolving all reasonable
inferences in Complainant’s favor, Complainant had not shown that he was subjected to
discrimination. The Agency subsequently issued a Final Order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

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.

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).
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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 Constr. 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 U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 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 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC
Request No. 05950351 (Dec. 14, 1995).

In the instant case, we find the AJ properly issued her Decision without a hearing. We find the
material facts are not in dispute. We find no dispute that Complainant resigned from his
position with the CBP in order to accept a position with ICE. We further find no dispute that
both ICE and the CBP were informed that Complainant had been detained by authorities on the
way to his swearing-in ceremony at ICE. We further find the evidence shows that in October
2009, D1 was notified to stop processing any personnel actions and that Complainant’s written
request for reinstatement, together with the documents requested by D1, were received after
implementation of the hiring freeze. We concur with the AJ that Complainant did not show that
the Agency’s reason for denying his request for reinstatement was a pretext to mask
discrimination. As well, we find no evidence that D1 was aware that Complainant had
initiated the EEO process against ICE at the time she denied Complainant’s request for
reinstatement.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision finding
no discrimination.

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:

0120113786

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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
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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

September 19, 2013
Date