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

Equal Employment Opportunity Commission

May 22, 2013

0120114102 (E.E.O.C. May. 22, 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. 0120114102

Hearing No. 480-2010-00058X

Agency No. HS09CBP004305

DECISION

On August 30, 2011, Complainant filed an appeal from the Agency’s June 24, 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. The Commission deems this appeal as timely and accepts it for de
novo review, pursuant to 29 C.F.R. § 1614.405(a).1

For the following reasons, the
Commission AFFIRMS the Agency’s final order.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customs and
Border Protection Officer at the Agency’s Otay Mesa Port of Entry, San Diego Field Office,
California. Complainant contacted an EEO Counselor and filed an EEO complaint on May 15,
2009, alleging that the Agency discriminated against him on the bases of race (African-
American), national origin (Haitian), and color (Black) when he was terminated during his
probationary period.

The Agency accepted the complaint and conducted an investigation. At the conclusion of the
investigation, Complainant was provided a copy of the investigative file and requested a
hearing before an EEOC Administrative Judge (AJ). The AJ granted summary judgment,

1 The Agency argues that this appeal is untimely but has not provided necessary evidence
showing the date on which Complainant’s attorney received the final Agency order.
0120114102

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finding no discrimination. The Agency’s final order implemented the AJ’s decision. From that
order, Complainant brings the instant appeal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment 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. 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.

The Agency’s reasons for terminating Complainant are detailed in a February 25, 2009 letter
addressed to Complainant from the facility’s acting director of field operations. The letter sets
forth, generally at first and then specifically, shortcomings in Complainant’s performance.
Complainant, in the course of EEO counseling, in the subsequent investigation and in his
discovery responses, addressed the charges against him.

In the Agency’s Interrogatory #2, Complainant was asked to “identify each and every
management-addressed issue mentioned in your termination letter that you believe did not take
place.” In his response, Complainant listed all the issues raised in the termination letter,
stating, in effect, that none of the accusations against him was true. This type of general denial
is insufficient to create a genuine issue of material fact. A party opposing summary judgment
cannot rely on general denials but must demonstrate with evidence that is “significantly
probative” or more than “merely colorable” that a genuine issue of material fact exists for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986), cited in FTC v. Publishing Clearing House, Inc., 104 F.3d 1168, 1170 (9th
Cir.1997).

In addition to this general denial, the record contains numerous statements by Complainant
purporting to dispute the truth of the charges against him. However, the bulk of these
statements are not direct refutations of the charges against Complainant. Rather they constitute
evasions and circumlocutions designed, not to adduce evidence, but to obfuscate. For
example, Complainant is charged with “failing to follow Cargo procedures and attempting to
circumvent Cargo procedures,” Complaintant responded: There were never any instances,
documented instances or counseling of [sic] that I ever attempted to circumvent cargo
procedures. Declaration, Answer 10. Complaint’s responses is not a detailed refutation of the
charge against him but an attempt at misdirection which emphasizes two irrelevant facts: that
there was no documentation to support the charge; and that he was never counseled concerning
the misconduct.

0120114102

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The following sets forth the most specific charges against Complainant as contained in the
February 25, 2009 letter and Complainant’s responses, in italics, to the charges.2

● failing to follow verbal instructions,

. . . I might have misunderstood an instruction at times but ultimately all tasks
assigned to me were completed in a time [sic] fashion. Declaration, Answer 10

● reporting to work without a weapon,

I did not come to work without my weapon. I came to work early one day
without the weapon and went home to retrieve it, arriving only five minutes late
with my weapon and ready for duty. Response #1

● In addition, on November 1, 2008, while you were assigned to primary
inspection, you closed your gate without consulting a shift supervisor. You
closed the gate for approximately 25 minutes, during this time the commercial
vehicles were waiting to make entrance into the United States.

I was never counseled for allegedly closing my gate without consulting a shift
supervisor on November 1, 2008. . . Response #1

● On or about November 2008, while you were assigned to the service counter,
you were observed logging off the computer thirty minutes prior to the end of
your scheduled rotation and you failed to help any of the drivers that were
waiting for assistance.

[I was never counseled for allegedly] logging off my computer 30 minutes early
on some date in November 2008, Response #1

● On November 28, 2008, while you were assigned to the primary inspection
gate, [a Supervisory Customs and Border Protection Officer] informed you not
to refer any more commercial trucks to the Non-Intrusive Inspection (NII). You
responded, "That's Nice!" You then inspected the next truck and referred the
truck to NII after being instructed not to do so.

[I was never counseled for allegedly] referring a truck to NII after being
instructed not to do so on November 28, 2008. Response #1

2 The responses are contained in Complaint’s responses to the Agency’s interrogatories
(Response) dated December 14, 2009, and in Complainant’s “Unsworn Declaration under
Penalty of Perjury” (Declaration) dated June 26, 2009.
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● Your overall rating on the Proficiency Certification Report, Federal Career
Interim Program, is unacceptable progress/fail.

[My first line supervisor] had always informed me that I was doing well. He
also stated several times that if I didn’t hear from him, it meant that there was
nothing new to bring up to your attention and to keep up the good work.
Declaration Answer #3

Complainant’s emphasis on the absence of “counseling” for the various transgressions of
which he is accused, is not evidence that the transgression did not occur and is insufficient to
raise a genuine issue of material fact.

CONCLUSION

After a careful review of the record, we find that the AJ correctly concluded that there was no
genuine issue of material fact in this case. Complainant’s testimony does not conflict, to any
significant extent, with the evidence of wrongdoing adduced by the Agency. Therefore, the
Commission AFFIRMS the Agency's final order.

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.
0120114102

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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

May 22, 2013
Date