01a43838
04-11-2005
Ulysses Cardona, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Ulysses Cardona v. Department of Justice
01A43838
April 11, 2005
.
Ulysses Cardona,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 01A43838
Agency No. P-2003-0170
Hearing No. 120-2004-00233X
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
BACKGROUND
Complainant was a Correctional Officer at the Federal Correctional
Complex, located in Petersburg, Virginia. Complainant was a probationary
employee. On September 5, 2002, complainant was assigned to work Morning
Watch as the B South Officer. Complainant failed to
report to his scheduled post at the prescribed time and remained in an
absent without official leave (AWOL) status for the entire eight hour
shift. Management was unable to contact complainant at his residence,
because he had failed to provide the institution with a valid contact
telephone number. On December 4, 2002, a White Correctional Officer, also
a probationary employee (E1), failed to report to work. Management was
able to contact E1's wife, determine his whereabouts, and make contact
with him. E1 was in the institution, believing it was his day off,
taking training.
On September 12, 2002, complainant gave an affidavit to a Special
Investigative Agent, in which he described the circumstances surrounding
the incident. On December 18, 2002, the Union President submitted a
two page memorandum to management on his behalf. The agency issued a
removal letter dated March 5, 2003, for complainant's failure to report
to work on September 5, 2002 and for failure to provide his supervisor
with a current telephone number.
Complainant filed a formal EEO complaint on April 11, 2003, alleging that
the agency discriminated against him on the basis of race (Hispanic)
when management charged him with being AWOL and he resigned in lieu
of termination. Specifically, complainant alleged that he was charged
with AWOL, while a White employee, similarly situated, was allowed to
explain why he was absent to avoid being charged with AWOL, under the
exact same circumstances.
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. In her decision, the AJ adopted the agency's
facts and applicable law as set forth in its �Agency's Response to Notice
of Intent to Issue Decision without a Hearing.� The AJ concluded that
even if the evidence is viewed in a light most favorable to complainant,
complainant failed to show that he was treated less favorably than a
similarly situated person not in his protected group. Specifically, the
AJ found that while both complainant and E1 both failed to report to duty,
the record reflects that the E1's supervisor was able to contact E1 to
inquire about his absence. Complainant's supervisor was unable to reach
complainant because he had failed to provide a current telephone number.
In its Agency's Response the agency concluded that complainant failed
to establish a prima facie case of discrimination. Specifically,
the agency argued that complainant's incident and E1's incident were
resolved differently by different supervisors (Lieutenants) and under
different circumstances. The agency also found that E1 was at work, on
what he believed to be his off time, cross training as a case manager.
The agency further found that Lieutenant made the decision to change E1's
schedule to reflect he was off duty because he was at work, expressed
remorse and accepted responsibility. On the other hand, the agency found
that complainant's supervisor was unable to contact him at his residence,
because he failed to follow policy and provide the institution with a
valid contact telephone number. Finally, the agency found that assuming
that complainant establish a prima facie case, the agency gave legitimate,
nondiscriminatory reasons for its decision. Specifically, the agency
found that complainant was AWOL and remained absent for an entire eight
hour shift; and second, he failed to follow policy by failing to provide
his supervisor with a current telephone number. The agency further found
that termination is the only disciplinary action available to the agency
against a probationary employee.
In his Response to Summary Judgment, complainant alleged that he was
similarly situated to E1. Specifically, complainant alleged that both
were probationary employees, failed to report to work and admitted to
making a mistake reading the weekly assignment roster, which accounted
for said AWOL. However, complainant alleged that E1 was treated more
favorably by having his AWOL changed to training, and that he was not
given an opportunity to explain, was charged with AWOL, and subsequently
was proposed for termination. Complainant makes no new contentions
on appeal.
STANDARD OF REVIEW
We begin by noting that we are reviewing the AJ's decision without
a hearing, and the final agency decision adopting it, under a de
novo standard of review. 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 for 29
C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO MD-110"), at 9-16 (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, legal analysis, including on the ultimate issue
of whether intentional discrimination occurred, and on the legal issue
of whether any federal discrimination employment statute was violated.
See id. at 9-15.
ANALYSIS AND FINDINGS
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
only appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exist
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, the issuance of
a decision without a hearing is not appropriate. In the context of an
administrative proceeding, an AJ may properly consider issuing a decision
without 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 general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); A complainant must first 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 reason was a factor in the adverse employment action.
McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Furnco Construction
Corp v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate a
legitimate, nondiscriminatory reason for its action(s). Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that the
agency's reason was pretextual, that is, it was not the true reason or
the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Assuming arguendo, that complainant established a prima facie case of
discrimination based on race, the Commission finds that the agency
articulated a legitimate, nondiscriminatory reason for its action.
Specifically, the record reveals that complainant was terminated on
the basis of two charges. First, he was AWOL and remained absent
for an entire eight hour shift. Second, he failed to follow policy
by failing to provide his supervisor with a current telephone number.
The record reveals that as a probationary employee, termination was the
only disciplinary action available to the agency against complainant.
The burden returns to complainant to establish that the agency's
explanation was a pretext for discrimination. Upon review, the Commission
finds that complainant has failed to do so. In reaching this conclusion,
we note that complainant failed to proffer probative evidence to refute
management's claim that he failed to report work and that he failed to
provide his supervisor with a current telephone number. We find that
complainant failed to establish by a preponderance of the evidence that
the agency's action was motivated by discriminatory animus.
After a careful review of the record, the Commission finds that the
issuance of a decision without a hearing was appropriate, as no genuine
dispute of material fact exists. We find that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. Further, construing the evidence to be most favorable
to complainant, we conclude that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes. The agency's final order is
AFFIRMED.
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
April 11, 2005
__________________
Date