0120073143
09-27-2007
Juan C. Hernandez, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Bureau of Customs and Border Protection), Agency.
Juan C. Hernandez,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Bureau of Customs and Border Protection),
Agency.
Appeal No. 0120073143
Hearing No. 510-2007-00001X
Agency No. HS06-CBP-000182
DECISION
On July 3, 2007, complainant filed an appeal from the agency's May 31,
2007, 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
On December 26, 2005, complainant filed an EEO complaint alleging that he
was harassed and discriminated against on the bases of race (Caucasian),
national origin (Hispanic), and color (White) when: (1) on or about May
25, 2005, a management official (S1; Jamaican) threatened him by shaking a
finger in his face; (2) on or about June 6, 2005, complainant was required
to switch positions with another Assistant Port Director for thirty (30)
days; (3) on or about June 8, 2005, a management official announced
at a meeting that complainant would be moving on to bigger and better
things until further notice; (4) on or about July 26, 2005, complainant
was required to move his office; (5) on or about October 12, 13, 26,
2005 and November 2, 2005, a management official told complainant's
colleagues that complainant did not walk around enough and he would
like to see another employee run passenger operations; (6) on or about
October 19, 2005, complainant's subordinates asked whether he would be
"pulled" from passenger operations; (7) on or about October 26, 2005,
a management official asked complainant to sign a blank performance
review; and (8) on or about October 26, 2005, complainant learned that
a management official did not recommend him for a monetary award.
The record indicates that in 2003, complainant transferred to the agency
from the former Immigration and Naturalization Service (INS), where he
had worked for over 20 years. Complainant was employed by the agency
as an Assistant Port Director, Passenger Operations at the Orlando,
Florida International Airport. The record reflects that the former INS
was being merged with the Customs Service and sections of the Department
of Agriculture in the new Department of Homeland Security. S1 stated
that the merger efforts were important to his supervisor (S2), and he
had been pressured to unify functions at the facility among the three (3)
organizations which comprised the new Customs and Border Protection (CBP).
The record reflects that one of the elements of complainant's performance
rating required management to ensure "one face at the border" unification
streamlining the merger of the three organizations comprising the CBP.
Complainant alleged that S1 harassed him on several occasions while the
merger efforts were taking place at the facility. S1 conceded that he
felt upset while the merger efforts were occurring and he acted upon
those feelings, although he denied pointing his finger at complainant.
Believing he was the victim of harassment and discrimination, complainant
sought EEO counseling and filed the aforementioned EEO complaint. At the
conclusion of the investigation, complainant was provided 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 assigned to the case determined that the complaint
did not warrant a hearing and over the complainant's objections, issued
a decision without a hearing on April 26, 2007. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
The AJ addressed complainant's allegations separately and initially
found that there was no independent evidence to support complainant's
allegation that S1 pointed his finger at complainant. AJ's Decision at 6.
The AJ further found that the job switch of June 6, 2005 resulted from
the decisions of agency upper management. The AJ found that there was no
evidence which suggested that discriminatory animus was involved in the
decision to switch complainant's position. Further, the AJ noted that
complainant did not lose any pay, status or benefits of employment due
to the temporary detail; complainant further conceded that he did not
suffer any harm and learned from the experience of working in another
area of the facility. AJ's Decision at 7. The AJ also found that
there was no evidence to suggest that S1 announced complainant would
be "moving on to bigger and better things until further notice" due to
discriminatory animus. The AJ found that S1 described the job swap to
facility staff in Orlando to be temporary, and complainant conceded that
others in the agency underwent a job rotation at the direction of S2.
Id. Regarding complainant's other allegations, the AJ noted that S1
clearly was not satisfied with complainant's management style, and felt
complainant should be more visible and accessible to his subordinates.
Further, the AJ noted complainant's allegations that S1 favored a coworker
(W1; Jamaican), such that he required complainant to move his office and
did not recommend complainant for a performance award but recommended W1.
The AJ noted that complainant's claim centered on the fact that he
perceived S1 favored W1 over himself. The AJ noted that when complainant
raised concerns to S2 about the friendship between S1 and W1, she informed
S1 that he could not fraternize with his subordinates. The AJ found that
complainant failed to proffer evidence that the perceived favoritism
prompted S1 to act in a discriminatory manner toward complainant.
The AJ specifically found that with regard to the performance review
and monetary award allegations, the agency articulated legitimate,
nondiscriminatory reasons for its actions which were not proven to be
pretextual in nature. AJ's Decision at 9. Finally, the AJ found that
none of the incidents which complainant alleged, either collectively
or individually, were sufficiently severe or pervasive to constitute
harassment due to a hostile work environment. As such, the AJ found
that complainant was not subjected to discriminatory harassment on
his alleged bases. The agency's final order fully implemented the
AJ's decision. On appeal, complainant alleged that: (1) the AJ erred
in dismissing incidents based on the favoritism S1 showed to W1; (2)
the AJ did not consider complainant's allegations that S1 had a Jamaican
flag in his office or that a top secret clearance was given to W1 but
not to complainant; and (3) the AJ erred in failing to hold a hearing
in the instant case. The agency responded to complainant's appeal,
urging the Commission to affirm the AJ's finding of no discrimination.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
We must first 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.
To establish a claim of harassment based on race, sex, disability,
age, or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,
1994). Further, the incidents must have been "sufficiently severe and
pervasive to alter the conditions of complainant's employment and create
an abusive working environment." Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc.,
23 U.S. 75 (1998). Finally, the fifth element that must be satisfied
in order to establish a claim of harassment is that complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir 1982).
With respect to complainant's allegations, we find the AJ properly
issued his decision without a hearing. Specifically, drawing every
inference in complainant's favor, that is, that S1's actions at issue
were as complainant alleged, we find the incidents of which complainant
complained were not sufficiently severe or pervasive to state a claim
of harassment based on race, color or national origin. We concur with
the AJ's finding that the alleged events between May and November of
2005 were not sufficiently severe or pervasive as to alter the terms and
conditions of complainant's employment. We further concur with the AJ's
finding that S1 articulated legitimate, nondiscriminatory reasons for his
actions regarding complainant's performance appraisal and monetary award.
In so finding, we note that S1 failed to complete the evaluations of the
three (3) GS-13 employees (including complainant) under his supervision;
when complainant noticed the evaluation was incomplete, he rated himself
as "Successful." In addition, S1 stated that complainant did not receive
a monetary award due to issues with his performance; other employees
did not receive awards and S1 nominated another employee who was not
Jamaican for an award.
We note that complainant alleged that he believed that W1 was treated
more favorably by S1 due to their shared Jamaican background; however,
this alone is insufficient to establish a pretext for discrimination. The
Commission notes that employment decisions based on favoritism are
not unlawful, as long as they are not premised on prohibited bases.
McClinton v. Department of the Air Force, EEOC Request No. 05921032
(May 6, 1993). Despite the fact that S1 and W1 were both of Jamaican
background and were social friends, we find the record supports the AJ's
finding that there was no basis to conclude that any of S1's decisions
regarding complainant were due to discriminatory animus.1 After careful
consideration of the entire record together with the arguments on appeal,
we find no reason to disturb the AJ's decision. Accordingly, we AFFIRM
the agency's final order finding that complainant was not harassed or
discriminated against as he alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
____9/27/07______________
Date
1 Despite complainant's allegations on appeal, we note that his
allegations regarding S1's display of a Jamaican flag and other examples
of S1's favoritism towards W1 such as upgrading his security clearance
to top secret were not alleged in his formal complaint of discrimination
but were identified in other documents and were the subject of discovery.
While the AJ did not specifically address the issue of the items displayed
in S1's office, we find no evidence that the items were displayed due to
discriminatory animus. We further find the display of these items was
not sufficiently severe or pervasive to constitute harassment by S1.
We also note that the record reflects that W1 was given top secret
clearance by S1 after he requested it, but complainant never requested
a top secret clearance.
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0120073143
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073143