0120070890
01-30-2009
Sandra Gamez, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Sandra Gamez,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120070890
Hearing No. 451-2006-00009X
Agency No. HS-05-CIS-000808
DECISION
Complainant filed an appeal from the agency's October 20, 2006 final
order concerning her 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.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Customs and Border Protection Officer at the Santa Teresa,
New Mexico Point of Entry. The record reveals that complainant
engaged in prior EEO activity when in 2002, she was a witness in
a complaint involving a co-worker. According to complainant, the
co-worker's complaint did not involve any management officials involved
in complainant's instant complaint. Complainant responded to a vacancy
announcement for a District Adjudication Officer position in the agency's
El Paso, Texas office. The Assistant District Director (Hispanic female)
was the recommending official for the position, and the District Director
(White male) was the selecting official for the position.
Complainant and 141 other applicants were deemed qualified and placed on
the Bilingual/Bicultural (BLBC) list for the position. The selecting
official conferred with the recommending official and chose three
Hispanic female term District Adjudication Officers for the permanent
District Adjudication Officer positions. A fourth position was filled
non-competitively by converting a term District Adjudication Officer
(White male) to a permanent appointment.
On August 19, 2005, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of national origin (Hispanic)
sex (female), and in reprisal for prior protected EEO activity when on
or about April 25, 2005, complainant became aware that she had not been
selected for a District Adjudication Officer position in the El Paso
District, as advertised under Vacancy Announcement IT-05-DA7-1184750.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On May 15, 2006, the agency moved for a decision
without a hearing in its favor. On August 30, 2006, the AJ issued a
decision without a hearing in which she found no discrimination. The
agency subsequently issued a final order adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ improperly found no
discrimination because the agency failed to review applications before
making its selections. The agency requests that we affirm its final
order.
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 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").
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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
In a claim such as the instant one which alleges disparate treatment, and
where there is an absence of direct evidence of such discrimination, the
allocation of burdens and order of presentation of proof is a three-step
process. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (applying the analytical framework described in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to an ADEA disparate
treatment claim). First, complainant must establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination; i.e., that a prohibited
consideration was a factor in the adverse employment action. Kimble
v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has
articulated such a reason, the question becomes whether the proffered
explanation was the true reason for the agency's action, or merely
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 511 (1993). Although the burden of production, in other words,
"going forward," may shift, the burden of persuasion, by a preponderance
of the evidence, remains at all times on complainant. Burdine, 450
U.S. at 256.
Assuming arguendo that complainant established a prima facie case of
discrimination and reprisal, we nonetheless find that the agency offered
legitimate, nondiscriminatory reasons for its selections. Specifically,
the selecting official stated that the three selectees were chosen for
the position because they were all current term District Adjudication
Officers who were performing in an exemplary manner, whereas complainant
had previously served as a District Adjudication Officer but was not
serving in that position at the time of the selections.
Complainant contends that the agency's explanation is pretextual because
the selecting and recommending officials did not review the applications
before making the selections, and she believes that she had higher test
scores than two of the three selectees. The selecting and recommending
officials stated that they were unaware of complainant's prior EEO
activity, and complainant failed to provide any evidence that they
were aware of her prior EEO activity beyond her bare assertion that the
recommending official is "alleged to be the sister of the immigration
chief, who will get copies of all the EEO complaints." Finally, we
determine that complainant was not similarly situated to the White male
placed into the position, since he was non-competitively converted into
the position, whereas complainant was a competitive applicant for the
position. Thus, we find that complainant failed to provide any evidence
from which a reasonable fact-finder could conclude that the agency's
explanations were pretext for unlawful discrimination or reprisal.
Consequently, we find that the AJ properly issued a decision without a
hearing finding no discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Commission
to AFFIRM the agency's final order implementing the AJ's finding of
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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:
______________________________ __January 30,
2009_____________
Carlton M. Hadden, Director Date
Office of Federal Operations
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0120070890
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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