0120120032
09-06-2013
Randy T. White, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Randy T. White,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120120032
Hearing No. 520-2011-00111X
Agency No. HS10CBP006748
DECISION
On September 27, 2011, Complainant filed an appeal from the Agency's August 26, 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented on appeal is whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish that he was discriminated against on the basis of race (African American) and sex (male) when on July 1, 2010 he was terminated during his probationary period from his position as a Customs and Border Protection Officer (CBP Officer).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer (CBP Officer), GS-1895-07, at the Agency's John F. Kennedy International Airport Port of Entry in Jamaica, New York. Citing to the termination letter, the AJ's decision describes the circumstances surrounding Complainant's termination as follows:
On June 23, 2010, shortly after arriving home from work, Complainant received a call from his girlfriend that she had been allegedly assaulted at a spa. Complainant drove to "Spa Castle Club" in College Point, New York. While in full uniform with a shirt covering his top and wearing his service firearm, Complainant approached the manager of the club and identified himself as a Police Officer. The manager requested to see identification and Complainant responded "I don't have to give you shit," while exposing his government issued firearm, and placing his hand on it and rocking it forward. The manager of the club reported that due to Complainant's actions he was put in immediate fear for his life and proceeded to call 911.
The New York City Police Department (NYPD) responded to the scene, and reported Complainant as belligerent and uncooperative. When an NYPD Officer asked Complainant if he was a Police Officer and he responded "I'm an Officer and that is all you need to know." The NYPD officer asked to see Complainant's credentials and firearms, and he eventually acquiesced. Complainant was subsequently arrested and charged a misdemeanor, menacing, pursuant to N.Y. Public Law � 120.14(1).
Complainant contacted the Agency on June 23, 2010 at approximately 11:30 pm to report that he had been arrested by the NYPD, and was unavailable to report for duty on June 24, 2010 for his 2:00 to 10:00 p.m. tour of duty. On July 1, 2010 Complainant was terminated for this off-duty conduct which the Agency describes as not reflective of the "traits and characteristics required for continued employment with CBP." Additionally, Complainant's termination letter noted that his "inappropriate conduct and poor judgment are incompatible with the duties and responsibilities of a CPB officer."
On August 18, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) as articulated in the statement "Issue Presented" above. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 15, 2011, motion for a decision without a hearing and issued a decision without a hearing on July 13, 2011 finding that Complainant failed to establish that he had been discriminated against as alleged. Specifically the AJ found that Complainant failed to establish a prima facie case of race, color, or sex discrimination, because he failed to provide evidence that a person outside his protected categories was treated any differently than he was after being arrested. Additionally, the AJ found that the Agency articulated a legitimate, non-discriminatory reason for terminating Complainant's employment, which Complainant failed to establish was a pretext for discrimination.
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. The instant appeal followed.
STANDARD OF REVIEW
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
We find for the purposes of this analysis that Complainant has established a prima facie case of discrimination based on race and sex. However we find that the Agency also articulated a legitimate, non-discriminatory reason for terminating Complainant's employment.
Upon notification of Complainant's arrest, Agency CBP Officers went to the NYPD Precinct where Complainant was being held to retrieve his credentials, service weapon, and a copy of the police report. After reviewing the police report, the Supervisory CBP Officer (SCBPO) prepared a memorandum which summarized the events surrounding the arrest. The SCBPO recommended terminating Complainant because he used poor judgment on the date of his arrest. Additionally, the SCBPO stated that he believed it was management's practice to terminate probationary employees following an arrest. Both the Assistant Port Director and the Deputy Assistant Port Director agreed with the recommendation. The Agency identified three probationary CBP Officers who were arrested and charged with a crime between 2006 and 2010, that were all terminated following their arrest. The employees were all men, and their races were identified as White, Hispanic, and Asian. The Agency states there were no CBP Officers employed at Complainant's worksite during this time frame that who were arrested for and charged with a crime and not terminated.
At this point, the burden returns to Complainant to establish that the Agency's proffered explanation for its actions is merely a pretext for unlawful discrimination. We find that Complainant has failed to present any persuasive evidence to establish that the Agency's articulated reasons for terminating his employment during his probationary period were a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to establish that he was discriminated against as alleged. Accordingly, the Agency's final order is AFFRIMED.
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
_9/6/13_________________
Date
2
0120120032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120032