0120110285
03-31-2011
Renato C. Penuliar, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
Renato C. Penuliar,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120110285
Hearing No. 480-2010-00151X
Agency No. HS09ICE005884
DECISION
On October 15, 2010, Complainant filed an appeal from the Agency's September 24, 2010 final order concerning an equal employment opportunity (EEO) complaint claiming 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).
BACKGROUND
During the period at issue, Complainant worked as a Information Technology Specialist at the Agency's Detention and Removal Operations facility in Los Angeles, California.
On January 8, 2009, Complainant replied to an email sent to him by a male co-worker (CW1). In his reply, which he copied to several other co-workers, Complainant chides CW1 for directing accusations toward Complainant. Complainant also tells CW1 to "troubleshoot your family issues yourself." The record reveals that the "family issues" consisted of an allegation that CW1 was engaging in an affair with a co-worker (CW2). On January 12, 2009, Complainant and CW2 sent each other emails in which they trade insults in English and Tagalong. Complainant admitted composing and sending these emails using a government computer, and during work hours.
On March 16, 2009, the Agency completed an investigation into the emails. The investigation observed that the origin of the rumors regarding CW1's and CW2's alleged affairs remained uncertain, and that Complainant routinely copied the same group of co-workers on his emails, in order "to keep his 'compadres informed.'" The investigation further commented that Complainant was the lead author in all of the emails but one.
As a result of the report, the Agency issued to Complainant a Notice of Proposed Five-Day Suspension on April 13, 2009, which became final on May 4, 2009.
On July 28, 2009, Complainant filed the instant formal complaint alleging that the Agency discriminated against him on the basis of sex (male) when:
On May 4, 2009, the Agency suspended Complainant for five (5) days for misuse of a government computer.
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 9, 2010, motion for a decision without a hearing (motion) and issued a decision without a hearing on September 1, 2010. The AJ noted that Complainant did not dispute any of the statements of fact proffered in the Agency's motion.
In addressing the merits of the matter at hand, the AJ found that Complainant did not establish a prima facie case because Complainant was unable to demonstrate that CW2, who was not disciplined, was sufficiently similarly situated. The AJ noted that CW2 "is in a completely different chain of command." Moreover, the AJ found the Agency acted appropriately in deciding to suspend the instigator of a conflict. The AJ summarized the situation in this manner: "If this were not such a serious situation, one would be tempted to simply say what children all over the world say about playground fights: 'He started it.'"
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
On appeal, Complainant argues that there is no evidence to prove the allegation that Complainant was responsible for starting spreading bad rumors. Further, Complainant denies he was the instigator. Rather, Complainant asserts that CW1 is the source of the problem, and Complainant's "response to his email was only intended to document his allegation and advise him that all these issues are his personal matter [sic] and that only he can resolve it." Complainant further contends that CW2 is responsible for the emails on January 12, 2009. Complainant denies using government property for personal gain; he only sought to document the allegations against him.
The Agency did not submit arguments in response.
ANALYSIS AND FINDINGS
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 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.
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).
In this case, we find the AJ appropriately issued a decision without a hearing. The record supports the Agency's statement of facts, which Complainant does not dispute.
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). She must generally 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). The prima facie inquiry may be dispensed with in this case with respect to Complainant's claims, however, because the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We do not need to address whether a similarly situated employee exists because the Agency articulated a legitimate, nondiscriminatory reason for issuing Complainant a five-day suspension. The Agency explained that it commissioned an investigation conducted by an impartial third party. The investigation concluded that the origin of the rumors remained unknown but Complainant needlessly inflamed the situation and spread the rumors by copying several employees on emails. The Agency relied on this report when issuing Complainant the five-day suspension.
The responding management officials (RMOs) submitted affidavits. In both the affidavits and the suspension letter, the RMOs explained that Complainant improperly used government equipment by transmitting emails in English and Tagalong concerning inappropriate subjects that were not work related. Further, the RMOs considered aggravating and mitigating factors such as the nature and offensive content of the emails sent and the volume of emails sent, and Complainant's unprofessional conduct. Moreover, the RMOs noted that, as an IT specialist, Complainant is held to a higher standard regarding the use of government computers.
In rebuttal, Complainant continues to address the veracity of the rumors; he argues that his intent was not to further inflame matters, but rather to document the allegations contained therein. However, Complainant fails to cast into doubt the Agency's conclusions and reasons for issuing him the five-day suspension. Complainant's intent does not tend to prove or disprove, by a preponderance of the evidence, whether the Agency subjected him to unlawful discrimination.
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
March 31, 2011
__________________
Date
2
0120110285
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110285