01A33652
06-30-2004
Richard Schlueter, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Richard Schlueter v. Department of Homeland Security
01A33652
June 30, 2004
.
Richard Schlueter,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 01A33652
Agency No. 02-4045
Hearing No. 350-A2-X8114
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Probationary Customs Inspector,
GS-1890-5, at the agency's San Luis, Arizona facility, filed a formal EEO
complaint on November 19, 2001, alleging that the agency had discriminated
against him on the bases of race (Caucasian), national origin (German),
sex (male), and disability (seborrheic dermatitis) when on September 21,
2001, management terminated him from his position during his probationary
period.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that after viewing the evidence in a light most
favorable to complainant, a decision without a hearing was appropriate
as there were no genuine issues of material fact in dispute. The AJ
found that assuming, arguendo, complainant established a prima facie
case of race, sex, national origin, and disability discrimination, the
agency nonetheless articulated legitimate, nondiscriminatory reasons for
terminating him. Specifically, the AJ found that complainant's continued
employment with the agency was dependent on his satisfactory completion
of the one-year probationary period, and in the termination letter,
dated September 17, 2001, the agency stated that complainant had �not
demonstrated the conduct and performance required of a Customs Inspector.�
(Investigative File, 31). The AJ also found that in support of this
conclusion, the agency stated that on July 18, 2001, complainant failed
to properly perform basic inspector tasks, failed to utilize standard
procedures for handling seized contraband, and experienced difficulty
in writing the required report. Id. Additionally, the AJ found that the
agency stated on August 18, 2001, complainant improperly accepted goods
from a member of the traveling public, in direct opposition to orders
from his supervisor (S1). (IF, 30-32). The AJ concluded that there
were no genuine issues of material fact in dispute, and complainant
failed to show, by a preponderance of the evidence, that the agency's
articulated reasons for complainant's termination were a pretext for
unlawful discrimination.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends that the AJ erred in issuing a decision without a
hearing as there are genuine issues of material fact in dispute which
require a hearing. Complainant also alleges that affidavit testimony
of management officials is not credible, and reiterates his contention
that he was subjected to unlawful discrimination.
As an initial matter we note that, as this is an appeal from a FAD
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). 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, it is
not appropriate for an AJ to issue a decision without a hearing. In the
context of an administrative proceeding, an AJ may properly a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. Petty v. Defense Security
Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of
the Army, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. The record reflects that complainant does not refute the
agency's assertion, as articulated in the termination letter, that he
accepted goods from a member of the traveling public. The record also
reflects that on August 21, 2001, S1 wrote a memorandum to complainant's
second line supervisor (S2) highlighting numerous areas where S1 felt
complainant was not performing satisfactorily, and recommending that
he not be retained as a Customs Inspector. (IF, 138-140). The record
shows that in this letter, S1 states that she had already conducted two
informal counseling sessions with complainant regarding his performance,
and S1 had �witnessed [complainant] perform searches of vehicles and
persons in an unsafe manner.� (IF, 138). The record shows that S1's
letter also supports the agency's statements regarding the events of July
18, and August 18, 2001, discussed in complainant's termination letter.
Additionally, we find that the record shows complainant does not refute
that he took possession of goods from a member of the traveling public
after being instructed not to by S1 and the Acting Supervisor, and that
S2 provided affidavit testimony stating that he is �not aware of any
employees who have accepted goods from the public and have not been
terminated.� (IF, 90, 134). We find that complainant has not shown,
by a preponderance of the evidence, that the agency's articulated
reasons for its actions are a pretext for race, sex, national origin,
or disability discrimination.
Accordingly, we find that after viewing the record evidence in the light
most favorable to complainant, there are no genuine issues of material
fact in dispute, and complainant has failed to show, by a preponderance
of the evidence, that the agency's articulated reasons for terminating him
during his probationary period are a pretext for unlawful discrimination.
Therefore, we affirm the FAD.
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
June 30, 2004
__________________
Date