0120111133
05-02-2013
Sergio G. Montiel, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Sergio G. Montiel,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120111133
Agency No. HS08CBP007620
DECISION
On December 14, 2010, Complainant filed an appeal from the Agency's November 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.
ISSUES PRESENTED
The issue presented on appeal is whether the supplemental investigation conducted by the Agency pursuant to the June 7, 2010 Commission decision supports the Agency's finding that Complainant failed to establish that he was subjected to discrimination on the basis of national origin (Hispanic), when, on July 10, 2008, he was terminated for "off-duty misconduct" that was found to violate the Agency's Standards of Conduct.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a probationary Border Patrol Agent (BPA), in the Federal Career Intern Program at the Agency's Customs and Border Protection Station facility in Deming, New Mexico. On July 10, 2008, Complainant was terminated for "off-duty misconduct" that was found to violate the Agency's Standards of Conduct. The circumstances forming the bases of Complainant's termination concerned his conduct the evening of June 20, 2008 and early morning hours of June 21, 2008 when Complainant attended his cousin's house party. Prior to Complainant's arrival at the party, the local police had been called to the house by neighbors complaining of noise. Shortly after Complainant's arrival, the police returned, entering the backyard and asking guests for their identification. Complainant alleges that he questioned police about entering the property without the homeowner's permission. Complainant testified that he was not allowed to obtain his identification from his truck, and that eventually an agent from the Santa Teresa Border Patrol Station came to the scene.1 This agent spoke with Complainant and police and Complainant alleges that the agent instructed him to go home and to report the incident to his supervisors. According to Complainant, the police made no arrests and issued no citations.2 According to the Agency, Complainant was described as confrontational and aggressive in the police report. The report stated that Complainant had been drinking and that Complainant challenged the officers' requests for identification, as well as, their presence on the property.
Believing that his termination was discriminatory, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On September 16, 2008, Complainant filed a formal complaint based on national origin (Hispanic).
At the conclusion of the initial investigation, Complainant was provided 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. On August 26, 2009 the AJ held a video teleconference. Thereafter, on September 3, 2009, the AJ issued a bench decision finding no discrimination. Specifically, the AJ found that the Agency's investigation into the incident was sufficient, and determined that while Complainant may have preferred personal interviews, the Agency was not required to conduct them. Further, the AJ found that Complainant did not show that the Agency conducted the investigations of non-Hispanic employees differently. The Agency subsequently issued a final order adopting the AJ's decision.
Complainant appealed the order contending that the AJ's decision was in error and requested that the Commission vacate the finding of no discrimination. Complainant argued that the AJ's decision was based on findings of fact developed on erroneous assumptions and speculation. In response, the Agency maintained that the AJ reasonably concluded that the facts supported a finding of no discrimination; that the AJ relied upon documentary evidence, Complainant's statement, and her perceptions of Complainant at the hearing to make factual findings and credibility determinations; and that she properly determined that Complainant's drinking at the party negatively affected his behavior. The AJ reasonably concluded that the Agency had a legitimate reason for terminating his employment.
On appeal, the Commission issued a decision vacating the Agency's final order and remanding that matter to the Agency for a supplemental investigation to address the following matters: (1) the treatment of other non-Hispanic probationary Border Patrol Agents who engaged in what could be construed as off-duty misconduct (i.e. DWI arrest, domestic violence situation, failure to pay taxes, etc.) who received a lesser penalty than termination, or no penalty at all, and why; (2) probationary Border Patrol Agents (identified by national origin) who received a letter of warning (or any other type of disciplinary action less than termination) should be examined, including what offenses were allegedly committed and why a warning was selected rather than termination; and (3) the standard process, procedure or policy followed when considering the removal of a probationary Border Patrol Agent, including whether or not an independent agency investigation is usually required and why it was not conducted in this case. Montiel v. Dep't of Homeland Security, EEOC Appeal No. 0120100100 (June 7, 2010). The order required the Agency to issue a report to Complainant upon completion of the supplemental investigation, and, within sixty calendar days, to issue a new final agency decision on the merits of his complaint with appeal rights to the Commission. The order stated that the new decision should consider all the evidence gathered during the original investigation, at the hearing, and during the supplemental investigation.
At the conclusion of the supplemental investigation, the Agency provided Complainant with a copy of the report of investigation and issued a new decision (FAD) pursuant to the previous order. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency concluded that management articulated a legitimate non-discriminatory reason for terminating Complainant, among other things, that the conduct he demonstrated with another law enforcement agency was unacceptable. Additional, Complainant failed to produce any evidence demonstrating that the articulated reasons were pretextual.
CONTENTIONS ON APPEAL
On appeal, Complainant contends the supplemental investigation is flawed because: (1) the responses from the Human Resources Specialist are incomplete, inaccurate and unsubstantiated; and (2) the Agency again failed to interview him and his witnesses. Additionally, Complainant notes that the supplemental investigation was only done after a petition for enforcement of the order was filed.
In response to Complainant's appeal, the Agency requests that the Office of Federal Operations affirm the FAD because substantial evidence in the record supports the finding of no discrimination. The Agency contends that substantial evidence in the record demonstrates that other probationary BPAs received the same treatment under similar circumstances as Complainant, and their cases were investigated the same as Complainant's.
STANDARD OF REVIEW
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").3
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).
.
The Commission finds that the Agency complied with its previous order on remand to conduct a supplemental investigation. All items requested appear to be included in the complaint file, and we find adequate information present to make a decision on the merits of the instant complaint. We note Complainant's contention that the supplemental investigation is flawed because the Agency failed to interview him and his witnesses; however, Complainant is reminded that he was not prohibited from providing this information on appeal.
We assume for the purposes of this analysis, that Complainant has established a prima facie case of discrimination based on national origin (Hispanic). However, we find that the Agency also articulated a legitimate, non-discriminatory reason for terminating Complainant's employment. The Deputy Chief Patrol Agent (DCPA) of the El Paso Sector indicated that Complainant was required to comply with the Agency's Standards of Conduct, which demands "that employees exercise good judgment in their actions both on and off duty, and adhere to the highest standards of character, integrity, and conduct." The DCPA reasoned that the conduct Complainant demonstrated on June 21, 2008 was unacceptable and didn't comply with the Agency's conduct standard. We find it reasonable and legitimate that the Agency could deem Complainant's conduct on June 21, 2008 to be lacking in good judgment. Other examples of off-duty conduct resulting in employees being terminated include: (1) a Caucasian BPA's a vehicle accident at 2:50 a.m. where he allegedly fell asleep behind the wheel and struck a parked vehicle; (2) a Caucasian BPA's citation for driving without credentials and while under the influence, as well as, being arrested for resisting arrest and after being questioned regarding his involvement in a disturbance in a "gentleman's club" and harassing club dancers; and (3) a Hispanic BPAs involvement in a domestic dispute which resulted in a protective order being issued.
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, however, that Complainant has failed to present any persuasive evidence to establish that the Agency's articulated reasons for its action were a pretext for discrimination. Evidence in the record establishes that on three separate occasions between December 6, 2008 and September 6, 2009, three individual employees (two Caucasian and one Hispanic) were alleged to have engaged in off-duty misconduct. Each of these cases was, presumably, investigated and the allegations weren't substantiated. In each case, no action was taken against the employee. There is evidence in the record of seven separate incidents concerning six individuals engaged in conduct "other than off-duty misconduct" occurring between June 18, 2008 and January 11, 2009. Two of the employees were Caucasian and four were Hispanic. Five of the six received discipline in the form of a "Letter of Reprimand" for vehicle accidents, or a "Letter of Counseling" for failing to comply with procedures. The employee who did not receive discipline was Hispanic, and the record indicates that the allegations were unsubstantiated and no action taken against that employee. Finally, evidence in the record establishes that on five separate instances between August 7, 2008 and April 27, 2009, five BPAs were terminated. Three of the five were terminated for off-duty misconduct, and of the three two were Caucasian. This evidence does not establish pretext. It does not appear that Complainant was treated any differently for engaging in what the Agency describes as off-duty misconduct than any other BPA outside his protected class.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons, the Commission finds that the supplemental investigation conducted by the Agency complied with the previous order and that Complainant has not established that he was discriminated against as alleged. Accordingly, the Agency's final decision is AFFIRMED.
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
__5/2/13________________
Date
1 The record revels that an agent was called to the scene because some of the individuals attending the event were of "questionable immigration status."
2 The record shows that the police officers were dispatched to the party in response to a noise complaint, and upon arrival arrested two individuals.
3 The Commission notes that the Agency cites the incorrect Standard of Review in its reply brief. This is an appeal from a final agency decision issued without a hearing and is therefore subject to de novo review by the Commission.
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0120111133
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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