0120110759
06-20-2012
Gustavo Reveles, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Gustavo Reveles,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120110759
Hearing No. 451-2009-00106X
Agency No. HS08CBP007219
DECISION
On November 9, 2010, Complainant filed an appeal from the Agency's October 12, 2010 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). 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 Supervisory Border Patrol Agent (SBPA) at the Agency's Santa Teresa Station in Santa Teresa, New Mexico. On May 25, 2007, Complainant was issued a "Notice of Proposed Removal" based on his "Misuse of Government Computer" and "Lack of Candor." This occurred following an investigation that found pornographic images and videos on his computer. On October 3, 2007, Complainant entered into a "Last Chance Agreement" (LCA) with the deciding official, Chief Patrol Agent (CPA). This agreement gave Complainant a thirty day suspension in lieu of termination but also required that Complainant not engage in any misconduct for two years. If he failed to comply, Complainant would be terminated immediately.
Approximately four months later on January 25, 2008, Complainant sent an email to a coworker with whom he was friendly. This email teasingly called the friend a "kiss ass." However, because Complainant had accidentally used "reply all" instead of "reply" in sending the email, it went out to thirty-nine coworkers, including other SBPAs, a Chief Patrol Agent, and Field Operations Supervisors.
In response, Patrol Agent in Charge (PAIC) forwarded the email to CPA, noting that it demonstrated Complainant's misuse of the government email system and derogatory language. CPA found it to be misconduct which triggered the LCA. Complainant was terminated effective March 11, 2008. Complainant appealed his termination to the MSPB, but because he had waived appeal rights to the MSPB in his LCA, his appeal was dismissed. At the time, he had no reason to believe his termination was discriminatory and so did not bring an EEO complaint.
On July 1, 2008, Complainant heard from an Agency employee that PAIC, who had brought Complainant's misconduct to the attention of CPA, had been present for a conversation arguably more offensive than Complainant's "kiss ass" remark but failed to take any action. In that situation, the employee who made the comments was non-Hispanic.
On September 12, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of national origin (Hispanic) when the Agency terminated him for violating the terms of a "Last Chance Agreement," judging his misconduct more severely than that of non-Hispanic employees. 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. The AJ held a hearing on January 12, 2010, and issued a decision on October 12, 2010. 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.
CONTENTIONS ON APPEAL
Complainant argues on appeal that the AJ did not adequately consider his "cat's paw" argument - that PAIC's racial animus was transferred to CPA, the deciding official, when PAIC chose to elevate Complainant's misconduct but not that of similarly situated non Hispanic employees. Complainant argues that this allows PAIC's racial animus and discriminatory intent to be transferred to CPA, who had none, because if PAIC had not acted as he did, the opportunity for CPA to terminate Complainant's employment would never have arisen.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
Although the initial inquiry in a discrimination case usually focuses on whether the Complainant has established a prima facie case, following this order of analysis is unnecessary when the Agency has articulated a legitimate, nondiscriminatory reason for its actions. In such cases, the inquiry shifts from whether the Complainant has established a prima facie case to whether he has demonstrated by a preponderance of the evidence that the agency's reasons for its actions merely were a pretext for discrimination. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983). In this case, the Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for its action. Specifically, the Agency stated that Complainant violated the terms of his "Last Chance Agreement" by engaging in misconduct when he misused government computers. Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason, here, discriminatory animus based on national origin. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Usually this would require that the deciding official was acting on a discriminatory basis. Here, there is no claim that CPA was doing so. Complainant argues, rather, that CPA was a "cat's paw" for PAIC, and thus it is PAIC's discriminatory actions that are relevant in our determination of pretext.
The term "cat's paw" seeks to describe an instance where the discriminatory animus of one employee is transferred through another, who acts as a conduit. This prevents the escape of liability where discrimination is happening, but the deciding official did not knowingly take part. To show that this is occurring it is necessary that "the employee can demonstrate that others had influence or leverage over the official decision-maker, and thus were not ordinary coworkers" to be able to "impute the discriminatory attitudes to the formal decision-maker." Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000); citing Long v. Eastfield College, 88 F.3d 300, 307, 308-309 (5th Cir. 1996). This requires more than the fact that a coworker of the deciding official exhibited discriminatory attitudes. There must be some use of influence or persuasion. Thus, if Complainant can show that PAIC had influence over CPA's decision-making process, it would be sufficient to transfer his discriminatory animus. This then could show that Complainant's termination was unlawfully motivated and that his misconduct was merely a pretext for discrimination.
Here, the AJ found PAIC to not be credible and that his motives were questionable. However, PAIC's motives were not ultimately important because of a lack of evidence that he had any input into or influence over CPA's decision to terminate Complainant. Thus, regardless of PAIC's possible discriminatory animus, if he did not influence the decision-making, his animus cannot transfer to CPA. This interpretation of law in regards to the cat's paw is consistent with Commission precedent, including the case cited by Complainant. Patton v. Dept. of Justice, EEOC Appeal No. 0120092405 (September 2, 2010).
There is also no evidence to call into doubt any of the factual determinations of the AJ or her credibility findings. All are consistent with the testimony taken during the hearing. We find that the AJ's findings of fact are supported by substantial evidence, and we discern no basis to disturb her decision.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM 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.
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
6/20/2012
__________________
Date
2
01-2011-0759
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013