0120131050
05-07-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120131050
Hearing No. 451-2012-00138X
Agency No. HSCBP014952011
DECISION
On January 2, 2013, Complainant filed an appeal from the Agency's November 30, 2012, 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 the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Border Patrol Agent at the Agency's Office of Border Protection facility in Laredo, Texas.
On September 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. Effective May 31 to June 1, 2011, Complainant was suspended for two days without pay;
2. Complainant's request for "days off' for August 9 and 10, and September 23 and 24, 2011, was not granted; and
3. On September 7, 2011, Complainant was directed to report to muster and turn in his unit keys at the end of every shift.
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 timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's July 30, 2012, motion for a decision without a hearing and issued a decision without a hearing on October 26, 2012.
Specifically, the AJ found that Complainant failed to establish a prima facie case of reprisal because he failed to show a nexus between any prior EEO activity and the alleged actions. The AJ further found that, assuming arguendo that Complainant established a prima facie case, the Agency articulated legitimate nondiscriminatory reasons for its actions. With regard to the two-day suspension, the Agency maintained that it was imposed for a violation of the Agency's policy regarding the proper handling and disposal of Agency uniforms. With regard to the denial of days off, Complainant's Supervisor (S) said that the denial was due to the operational needs of the Agency. With regard to Complainant being required to report to muster and turn in his unit keys, S said that all members of Complainant's unit were required to do the same thing and that the purpose was to allow agents to brief incoming agents and to prevent the loss of unit keys. Finally, the AJ found that Complainant failed to demonstrate that the Agency's articulated reasons for its actions were a pretext to mask intentional 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
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
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 Veterans Affairs, EEOC Request No. 05960473 (November 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 (September 25, 2000). In the instant case the AJ found that Complainant failed to establish a prima facie case of reprisal because he failed to show that the Agency officials responsible for the alleged actions were aware of Complainant's protected EEO activity and/or failed to show a nexus between any protected activity and the alleged actions.
We note, however, that the AJ further found that, even assuming arguendo that Complainant established prima facie case of reprisal, the Agency articulated legitimate nondiscriminatory reasons for its actions. The prima facie inquiry, therefore, may be dispensed with and we may assume, without finding, that Complainant established a prima facie case. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983). With regard to the two-day suspension, the May 27, 2011 notice of suspension noted that Complainant was being suspended for failure to follow policy when he failed to properly dispose of his Agency uniforms. See Report of Investigation (ROI) Tabs F-13 & F-10. The record shows that the suspension had been reduced from a proposed five days and the earlier five-day suspension notice dated February 2, 2011, spelled out Complainant's failure to follow departmental policy more fully. It stated:
I considered your memorandum dated January 16, 2011, in which you acknowledged that your uniforms, "were packed in trash bags for disposal" and you thought you had taken the uniforms to the dump. This is not consistent with the Implementation of the Border Patrol Uniform and Grooming Standards Policy which states in pertinent part, "Uniform employees must exercise reasonable care when disposing of uniform articles that contain specific and unique agency identifiers such as shoulder emblems, embroidered patches, Agency-specific "U.S. Border Patrol" embroidery, etc. Uniformed employees are required to take reasonable measures to guard against the potential misuse of uniforms articles by unauthorized personnel. When discarding uniform articles containing official and unique agency identifiers, Border Patrol agents must take reasonable measures to ensure that the discarded item cannot be illegally obtained and/or used in an unofficial capacity. Agents should remove these identifiers prior to being discarded. In cases, where the unique identifier cannot be removed, it should be defaced beyond recognition or destroyed."
Id.
With regard to the denial of days off, S explained that he granted some of Complainant's "days off" requests but could not grant them all because he had to "consider[...] the other agents' requests in order to balance the manpower per day." ROI, Tab F-4. S further stated that he told Complainant "that it would be helpful for me if he included comments/remarks when requesting his "off duty" days. . . . the remarks would further assist me in approving his and the other three agents' requests in case someone else in the sensor unit requested the same days as him." Id. Finally, with regard to Complainant being directed to report to muster and turn in his unit keys at the end of every shift, S said that all agents under his supervision were required to do the same, and that the reason for the policy was so that the agents would be able to provide the "incoming agents at musters with current and relative sensor [sic] management information as well as any field intelligence he [sic] might have gathered" and also "reduce the likelihood that the Government unit keys would be lost or misplaced." Id.
The Agency having articulated reasons for its actions, the burden thus returns to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reasons were pretextual, that is, they were not the true reasons or the actions were influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Following a review of the record we find that Complainant has not met this burden.
With regard to the two-day suspension, Complainant explained that he received notice that the house he had been renting was going to be foreclosed on and that he had to remove all his belongings by November 30, 2010 but that due to circumstances beyond his control he was unable to remove all items, including the uniforms, by the deadline.
The [eviction] notice stated I would have an opportunity to retrieve the rest of my items, so I wasn't worried. I did not know exactly where the old uniforms were until in January when [the Field Operations Supervisor: FOS] ordered me to write a memo. On my memo I stated that I was going to dispose of the uniforms at the dump and I was going to after I removed the patches, I had already removed 31 patches, which I still have, and dispose of the uniforms properly.
ROI, Tab F-1.
It is thus undisputed that Complainant left the uniforms in his former residence that was being foreclosed on and that he did not have control over the uniforms from November 30, 2010 until "March of 2011 [when] my sister in law was allowed back into the house to recover our personal items." Id. See also Tab F-7. Complainant contends that he received the notice of the two-day suspension two days after he acted as the representative for another Agency employee in that employee's EEO complaint and that the suspension was in retaliation for such representation. Complainant further contends that FOS retrieved some of the bags of uniforms from the house but that FOS himself left other uniforms behind and that since Complainant was issued discipline for leaving the uniforms behind he was treated differently than FOS who also left some uniforms behind. We note, however, that Complainant is not similarly situated with FOS who is a Supervisor and who did not leave his own uniforms behind but allegedly left behind the uniforms of another, namely Complainant. On appeal, Complainant argues that the uniforms "were never discarded" and that Agency officials "illegally seized the uniforms from my house." Such an argument is disingenuous, however, considering that by the time the Agency retrieved some of the uniforms, the residence had been foreclosed on and Complainant was no longer in a position to describe it as "my house." Furthermore, given that Complainant left the uniforms behind in a place to which he no longer had free access his argument that the uniforms had not been "discarded" is unpersuasive.
With regard to the denial of days off, Complainant said that "We are not required to provide anything in the remarks section" of the leave request form. ROI, Tab F-1. We note, however, that S merely said that doing so "would be helpful" and not that it was required. Specifically, Complainant did not address S's contention that he had to balance the days-off requests of Complainant and his colleagues. Finally, with regard to being required to report to muster, Complainant said that S made all agents do so "to try and show it wasn't discriminatory." Id. Thus it is undisputed that the requirement applied to all similarly situated employees in Complainant's unit and hence Complainant cannot show he was treated differently.
Thus Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reasons for its actions are pretextual. Nor has he shown the presence of a material issue of fact.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that reprisal occurred. Nor has Complainant established the presence of a material issue of fact. The Final Order is therefore AFFIRMED.
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
May 7, 2015
__________________
Date
2
0120131050
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131050