0120101749
08-17-2010
Manuel Rodriguez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
Manuel Rodriguez,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120101749
Agency No. HS-06-ICE-002667
DECISION
On March 16, 2010, Complainant filed an appeal from the Agency's January 29, 2010, final decision 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 decision.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Supervisory Detention and Deportation Officer at the Agency's Detention and Removal Operations (DRO), Miami Field Office facility in Miami, Florida.
Complainant filed EEO complaints alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when:
1. On March 29, 2006, while recuperating from a work-related injury, he received a telephone call in which he was informed someone would be coming to his home to serve him with a proposed 30-day suspension;
2. On July 24, 2006, the Miami Field Office Director (the Director) issued him a 14-day suspension for unauthorized personal use of a government cellular phone, effective August 6, 2006;
3. On August 21, 2006, management did not select him for the position of Supervisory Immigration Enforcement Agent (SIEA), advertised under Vacancy Announcement Number LAG-DRO-113433-SD-34.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
The Agency urges the Commission to affirm its decision, based on its conclusion that Complainant has offered no evidence of pretext. Complainant, on the other hand, argues that the Agency has not provided legitimate, non-discriminatory reasons for the challenged actions.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. 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 Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he 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 (Sept. 25, 2000).
The prima facie inquiry may be dispensed with when the agency articulates a legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the basis of reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for notifying Complainant that a proposal of suspension would be delivered to his home, suspending Complainant for a period of 14 days, and for not selecting Complainant for the SIEA position.
Claim 1
Complainant argues that the Agency's decision to call him on March 29, 2006, was motivated by unlawful discrimination in retaliation for his prior EEO activity. Complainant, however, fails to show that the Agency's reasons offered in explanation of its conduct are pretext for such unlawful discriminatory treatment. The Agency stated that the decision to contact Complainant at home and deliver the proposal was made so that the disciplinary action could commence; the Agency was not sure when Complainant would be returning to work from his leave. Further, the Agency noted that it had concluded no legal impediment prevented it from serving the notice to Complainant at his home. We further note that when Complainant was notified of the Agency's decision, he expressly stated his disapproval, and the proposal was sent to Complainant by mail instead.1 Based on the above it is our conclusion that Complainant has not made the necessary showing to prove that the Agency's explanation for the contact on March 29, 2006 was pretext for unlawful discrimination. Cf. Fierman-Rentas v. Department of Justice, EEOC Appeal No. 0120060924 (June 15, 2007) (two phone calls made to complainant's home did not constitute harassment). Therefore, with respect to Claim 1 we affirm the Agency's finding of no discrimination.
Claim 2
Complainant insists that the Agency's decision to suspend him was motivated by unlawful discrimination based on his previous EEO involvement. The Agency counters that the suspension was ordered because Complainant engaged in unauthorized use of his government-issued cell phone while serving yet another suspension. The record here makes short shrift of Complainant's claim that the Agency's rationale is actually pretext for discrimination. First, it is undisputed that the Agency enacted a policy regulating personal use of government property by DRO employees in 2004. The memo explicitly makes clear that with respect to cell phones personal use is prohibited "with limited exception[s]." Second, as the Agency pointed out to Complainant in its letter of July 24, 2006, as a supervisory officer Complainant is held to a higher standard as supervisors are expected to demonstrate acceptable conduct. Finally, we note that Complainant's history of disciplinary violations was a factor in suspending him. The record supports the Agency's legitimate, non-discriminatory reasons - reasons which Complainant has not shown to be pretext. See Lewis v. Department of Justice, EEOC Appeal No. 01970584 (May 20, 1999) (downgrading of performance appraisal, based in part on unauthorized use of phones, held not to be pretext for discrimination). Therefore, we agree with the Agency's finding of no discrimination with respect to Claim 2, and accordingly affirm that ruling.
Claim 3
Finally, Complainant maintains that the reason he was not selected for the SIEA position was retaliation for prior EEO involvement. The Agency correctly points out that the reason Complainant was not selected was because it determined that the selectee was the most qualified individual and "interviewed very well." We note that had Complainant made himself available for an in-person interview, perhaps he too could have similarly impressed the recommending panel with respect to his particular interview abilities. The Agency made a diligent effort to contact Complainant to set up an interview with him; however, despite repeated attempts Complainant could not be located. His resume, nevertheless, was submitted for consideration to the recommending panel. Complainant's contention cannot withstand the force of the evidence in the record: the Agency selected the individual it did based, not on discriminatory animus towards Complainant, but on the qualifications of and interview with the selectee. Therefore, we also agree with the Agency's conclusion that, with respect to Claim 4, Complainant did not show that the Agency's proffered reasons were actually pretext for discrimination. We affirm this claim as well.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM.
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
August 17, 2010
__________________
Date
1 The letter was delivered to Complainant's home on or about June 19, 2006, when Complainant had returned to work. Complainant makes much of the Agency's method, specifically noting that his 13 year old son - who shares Complainant's name and apparently believed the letter was addressed to him - opened the letter only to learn of his father's "dire" situation. Whether Complainant raises this as support for his claim of reprisal or not, we find that this story is not credible. The envelope the letter arrived in prominently features the U.S. Immigration and Customs Enforcement logo; further, we question how many 13 year olds regularly receive correspondence through the U.S. Postal Service.
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0120101749
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101749