Ferdinand M.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Nov 13, 2019

2019002542 (E.E.O.C. Nov. 13, 2019)

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

Ferdinand M.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 2019002542

Hearing No. 570-2018-00293X

Agency No. HS-FEMA-A27249-2016

DECISION

On March 21, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 19, 2019 final order concerning an equal employment opportunity (EEO) complaint
claiming 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

During the period at issue, Complainant worked as a Reserve Project Specialist in Agency’s Public
Assistance Division. As part of its responses to various disasters including a floods, hurricanes
the Agency has deployed Complainant to its Joint Field Offices in various locations such as Texas
and West Virginia since 1998.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On October 11, 2016, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on national origin (Puerto Rican) when:

1. on August 3, 2016, Complainant was demobilized from a deployment when his
supervisor falsely accused him of smoking an illegal substance (marijuana) in his
hotel room; and

2. on January 25, 2017, Complainant received a Notice of Termination of Appointment
from the position of Reservist in the Public Assistance Division.

After an investigation, the Agency provided Complainant with a copy of its report of investigation
and notice of the 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 motion for a decision without a hearing and issued a decision on
February 13, 2019, by summary judgment in favor of the Agency. The Agency subsequently
issued a final order adopting the AJ’s finding of no discrimination.

The instant appeal followed. On appeal and through counsel, Complainant contended the AJ had
erred in issuing a decision by summary judgment because Complainant had not received the AJ’s
notice of intent to issue a decision without a hearing until the day the parties were due to respond
on February 8, 2019. On that day, Complainant had submitted an urgent request for an extension
to respond to the AJ’s notice. Counsel for Complainant states that the AJ should have granted a
three-day extension because the AJ’s notice of intent had been mislabeled as “junk email” in
Complainant’s inbox. Counsel further asserts the AJ had missed disputed material facts which
merited a hearing. Counsel challenges inconsistencies in the affidavit from Complainant’s
supervisor (Caucasian). Additionally, Counsel asserted that a negative urinalysis from August 26,
2016, had undermined the propriety of adverse actions resulting from allegations that Complainant
had smoked marijuana off-duty on July 29, 2016.

In response, the Agency argues that the AJ’s refusal to grant Complainant’s request for an
extension was justified. The Agency argues further that the AJ had properly considered the
supervisor’s testimony and Complainant’s post-incident urinalysis because both were in the
Agency’s report of investigation.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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In ruling on a summary judgment motion, the judge is to determine whether there are genuine
issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage,
the judge must believe the non-moving party’s evidence and must draw justifiable inferences in
the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge
could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the
potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). To
successfully oppose a decision without a hearing, Complainant must identify material facts of
record that are in dispute or present further material evidence establishing facts in dispute. Here,
we concur with the AJ in that his decision without a hearing was based on an adequately developed
record.

We determine whether the AJ appropriately issued the decision without a hearing. We reviewed
this investigative record exhaustively and note that it contained Complainant’s statement and
rebuttals denying he had smoked marijuana in late July 2016. As part of his response to the
Agency’s notice of termination, Complainant had submitted a favorable urinalysis from a sample
that he provided in August 2016. In that letter, Complainant stated that marijuana “can stay in
your system anywhere from 10 to 90 days depending on the frequency of used, the quantity and
the body of each individual.” As such, Complainant has acknowledged the uncertain value of the
urinalysis as exculpatory evidence regarding the allegation he smoked marijuana in late July 2016.

To prevail, Complainant needed to satisfy the three-part evidentiary test articulated by the Supreme
Court of the United States. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must initially establish a prima facie case by demonstrating that the Agency took
adverse employment actions under circumstances that would support an inference of
discrimination. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978); McDonnell Douglas
at 804 n. 14. If Complainant were to establish a prima facie case, then the burden shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency articulates such a reason, then
the burden of proof shifts back to Complainant who must prove, by a preponderance of the
evidence, that the Agency’s explanation was a pretext to mask an actual discriminatory motive.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 143 (2000).

For purposes of factual analysis, we presumed Complainant made his prima facie case. The
Agency articulated a nondiscriminatory reason for its decisions. Specifically, the Agency
explained that Complainant was demobilized and later terminated based on various incidents of
misconduct identified in the Notice of Termination, as well as misuse of his government travel
card.

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The record contains a copy of a January 25, 2017 Notice of Termination of Appointment based on
the following five charges: 1. Conduct Unbecoming (use of a controlled substance while off duty,
in a hotel room; 2. Lack of Candor (denying using a controlled substance although having
previously admitted using it, to a field supervisor; 3. Unauthorized Use of a Travel Charge Card
(a purchase while on assignment, which was unrelated to any official travel expense); 4. Failure to
Follow Written Agency Policy (related to the purchase referenced above); 5. Inappropriate Contact
(two checks returned due to account having insufficient funds).

Furthermore, the Agency evidenced it had terminated many other employees for violating
government credit card rules. The Agency also provided an example of another reservist whose
employment terminated because of a similar report from a hotel accusing that former Agency
employee of smoking marijuana.

According to Complainant, he merely fell asleep after he had worked extended hours and burned
chicken he was been cooking in his hotel room. Complainant has argued that the non-Hispanic
hotel’s staff and his supervisor conspired to falsely accuse him of drug use because he was Puerto
Rican. On the other hand, Complainant’s supervisor testified that Complainant had confessed to
smoking marijuana, and panicked when confronted by the hotel staff. Complainant had the burden
to prove, by preponderance of evidence, that discriminatory acts had occurred, but he was unable
to do so here. Complainant v. Dep’t of Health and Human Servs., EEOC Appeal No. 0120122134
(Sep. 24, 2014). Therefore, we find Complainant failed to prove pretext.

CONCLUSION

We AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if 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.

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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director,
Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s
request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by
certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request
must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g). 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests.

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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 13, 2019
Date