0120114125
09-05-2013
John D. Moffatt, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
John D. Moffatt,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120114125
Hearing No. 530-2011-00022X
Agency No. HS-10-ICE-005226
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 9, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order which found that Complainant failed to prove that he was subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physical Security Specialist (Law Enforcement Operations), Federal Protective Services, for the United States Court House, in Charleston, West Virginia. Complainant was hired on September 2, 2008, and was required to complete a two year probationary period. On March 31, 2009, the Chief Judge (Chief Judge) for the Southern District of West Virginia issued an order, which declared that only U.S. Marshals Service personnel could carry weapons in the U.S. District Court. During a discussion between Complainant's supervisors and the Acting U.S. Marshal for the Southern District of West Virginia, regarding the ramifications of the order, Complainant's name came up because he was assigned to the Courthouse. The U.S. Marshal noted during this meeting that there had been complaints of sexual harassment against Complainant. Specifically, they discussed his inappropriate behavior around female employees working in the Courthouse. A female employee indicated that Complainant "loomed" over her and others' desks, staying there for an inappropriate amount of time, and created a general feeling of apprehension. Another female employee, a public defender complained that despite the Chief Judge's order, Complainant continued to carry an exposed weapon in the Courthouse. Complainant denied the allegations of sexual harassment, and indicated that he questioned the legitimacy of the Chief Judge's order, because federal regulations required Physical Security Specialists to carry firearms in federal buildings.
On January 4, 2010, Complainant asked to speak with the Chief Judge concerning the Courthouse firearm policy. Unable to schedule a meeting with the Chief Judge, Complainant left a copy of a news report concerning the death of a Court Security Officer and the wounding of a Deputy U.S. Marshal in a Federal Courthouse in Las Vegas, Nevada. Due to Complainant's actions on January 4, 2010, the Chief Judge requested that Complainant be permanently removed from the Courthouse.
Complainant was transferred from the Courthouse to an Immigration and Customs Office of Investigations facility in Charleston, West Virginia. After speaking with Human Resources, Complainant's supervisor wrote a note to Employee Labor Relations dated February 16, 2010, cataloging Complainant's alleged misconduct during his probationary period. On March 2, 2010, the supervisor also wrote the Joint Intake Center, Office of Professional Responsibility in regards to the Complainant's alleged misconduct. On March 11, 2010, Complainant was terminated for unsatisfactory conduct during his probationary period.
On May 24, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), and age (41) when on or about March 11, 2010, he was terminated during his probationary period from his position as a Physical Security Specialist, GS-11.
Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On July 13, 2011, the Agency filed a motion for summary judgment and Complainant responded. The AJ found that there were no material facts at issue and that the record had been adequately developed, so a decision was issued without a hearing. The AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions, namely that Complainant's termination during his probationary period was in direct response to Complainant's alleged misconduct. The Agency explained that Complainant was given ample opportunity to alter his behavior. For example, the AJ noted that he was asked to stop conversing with female employees beyond what his position necessitated, but despite the warnings Complainant's conduct did not change. The AJ found that Complainant failed to show that the Agency's reasons were pretext for discrimination. Therefore, the AJ determined that Complainant failed to show that he had been subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that he was fired based on unsubstantiated allegations from a female government employee. He maintains that the female employee's word was believed over his denial due to gender preference. Further, he contends that he was terminated for unsatisfactory performance but was rated satisfactory on two performance evaluations, within his 18 month tenure. He maintains that he was not counseled or reprimanded for the allegations of sexual harassment prior to his termination, while a similarly situated fellow Inspector following a sexual harassment complaint as promoted to Area Commander.
Finally, he maintains that he was denied a Notice of Proposed Adverse Action prior to his termination. He alleges that he suffered a Fourth Amendment Violation when his personal property was unlawfully seized and searched without warrant or cause. Moreover, he indicates that a hearing should have been held in this case because he was not able to fully explain his side of the story.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order. We find that there are no material facts in dispute in this case so a decision without a hearing was properly issued. Further, we find that even if we assume arguendo that Complainant established a prima facie case of race, sex, and age, discrimination,1 the record shows that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely that Complainant was dismissed for unsatisfactory conduct during his probationary period. The conduct includes complaints from female coworkers and failure to follow the order of the Chief Judge. We find that Complainant has not offered any evidence other than his own conclusory statements that he did not engage in unsatisfactory conduct.
Further, with respect to Complainant's contentions on appeal, we find that Complainant still has not established that discriminatory animus was involved in the decision to terminate him. We note that Complainant does not deny that he failed to follow the Chief Judge's order regarding weapons use. He also does not deny that he left the Chief Judge material that could be considered inflammatory. In fact, the evidence shows that the Chief Judge asked that Complainant be removed from the Courthouse as a result of the January 4, 2010 incident. Further, we note that contrary to Complainant's argument he was not terminated for unsatisfactory performance but was terminated for unsatisfactory conduct so his performance reviews are not relevant here. We find that the comparator offered by Complainant, an Officer that allegedly sexually harassed a coworker, was not similarly situated to Complainant as the person was not a probationary employee.2 Finally, the Commission finds that Complainant has presented no evidence which shows that his personal effects including bags in the car were searched based on discriminatory factors.3 We find that Complainant has failed to show that the decision to terminate him was based on discriminatory factors. Accordingly, we find that the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
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
__9/5/13________________
Date
1 When asked why he believed his sex and age were factors in the termination, Complainant stated that the "union recommended [that he] file a complaint as a white male over 40 to provide an avenue of rebuttal to [his] termination."
2 The Commission has long held that where a Complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Coe v. Department of Homeland Security, EEOC Appeal No. 0120091442 (October 7, 2011); Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
3 Absent some indication that these searches were conducted for discriminatory reasons, we note that the Commission has no jurisdiction to remedy alleged violations of the 4th Amendment.
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0120114125
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114125