0120142356
10-29-2014
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120142356
Hearing No. 530-2012-00191X
Agency No. HS-ICE-01019-2011
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 23, 2014 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.
BACKGROUND
On April 11, 2010, Complainant was hired as an Investigative Assistant at the Agency's Homeland Security Investigations in El Centro, California. The record reflects that Complainant's continued employment with the Agency was contingent upon Complainant passing a background investigation of which he was aware.
On July 7, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of race (Indian), national origin (Indian), and religion (Sikh) when:
he was terminated during his probationary period from his Investigative Assistant position effective April 7, 2011.
After the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On April 2, 2014, the AJ issued a decision by summary judgment in favor of the Agency.
In her decision, the AJ found no discrimination. The AJ found that Complainant did not establish a prima facie case of race, national origin and religion discrimination. The AJ further found that assuming for the sake of argument only, Complainant established a prima facie case of race, national origin and religion discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. Specifically, the AJ found that Complainant was terminated during his probationary period based on his lack of honesty in responding to questions on the background investigation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
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 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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
In finding no discrimination, the AJ found that the record developed during the investigation established the following undisputed facts. The background investigation revealed derogatory information serious enough to warrant a proposal that Complainant be found unsuitable for the Investigative Assistant position for which he was hired. By letter dated February 18, 2011, Complainant was issued a Notice of Proposed Action to find him unsuitable for employment based on seven specifications. Two of the seven specifications were based on Complainant's claim that he received a bachelor's degree from Rutgers University in or around June 2008. The record reflects that Complainant's records at Rutgers University list him as having been registered for two courses in the summer of 2005, and that he subsequently dropped those courses. The record also reflects that Complainant was not awarded a bachelor's degree.
The AJ noted that the other two specifications were based on Complainant's claim that he received an associate degree from Middlesex Community College in or around June 2005. The record reflects that Complainant's records at Middlesex Community College reflect that he attended school from the spring 2003 to the fall 2003, but that he was never awarded an associate degree.
Further, the AJ noted that two specifications reflected that Complainant engaged in dishonest conduct as evidenced by his claims in Section 13A of his Standard Form 86 dated December 23, 2009 and August 9, 2010 that he was employed with the U.S. Fugitive Recovery Bureau from October 2004 to December 2008. However, in his statement dated February 1, 2011, Complainant acknowledged he never worked for the U.S. Fugitive Recovery Bureau after taking a class from them.
The AJ noted that seventh specification showed that Complainant engaged in dishonest conduct as evidenced by his failure to honor his just debts, a past due automobile payment in the amount of $392.00 based on a credit search conducted on January 18, 2011. Complainant was given 30 days to reply to the proposal notice and make any comments and provide documentary evidence in support of his reply. By letter dated March 27, 2011, Complainant provided a response in which he did not submit any evidence showing that he had been awarded any degrees. Complainant also admitted that he did not work for the U.S. Fugitive Recovery Bureau after he took a class with them. Finally, Complainant stated that he was current with his automobile payment and planned to pay the past due bill with his tax refund.
The AJ noted that by letter dated April 6, 2011, the Deputy Division Director placed Complainant on notice that he had been found unsuitable for the position of Investigative Assistant. The letter stated although Complainant's response had been considered, the information he had provided was insufficient to mitigate the issues in the proposal notice. Complainant was notified that the Deputy Division Director had sustained the charge of dishonest of conduct and six specifications but did not sustain the seventh specification. Further, Complainant was advised that his conduct indicated a potential for behavior that could have an adverse impact upon his performance, as well as the ability of the Immigration and Customs Enforcement to fully and effectively carry out its law enforcement mission.
The AJ noted that by letter dated April 7, 2011, the Special Agent in Charge, also Complainant's fourth levels supervisor, placed Complainant on notice that he was being terminated during his probationary period based on the finding of unsuitability for the position of Investigative Assistant in accordance with 5 C.F.R. Part 731.
The AJ noted that during the relevant period, the Agency conducted more than 41,000 suitability adjudications. The Agency's Integrated Security Management System reflects that in 2010 and 2011, a total of sixty-one candidates and appointees were found unsuitable. Of these sixty-one individuals, the Agency determined that forty-eight had not entered on duty and thirteen were employees, like Complainant, who had entered on duty. The AJ further noted that the Agency does not maintain race or national origin information before individuals actually enter on duty, but once individuals do enter on duty, they are requested to provide race and national origin information. Thus, the race and national origin information of the forty-eight candidates found unsuitable before entering on duty cannot be determined.
Moreover, the AJ noted that during the time period of Complainant's employment with the Agency, the Special Agent in Charge who signed Complainant's April 7, 2011 Notice of Termination also terminated: (1) a white Criminal Investigator during her probationary period for having an unprofessional attitude and lack of respect, and an inability to work well with others in the workplace; (2) a white Criminal Investigator during his probationary period for misconduct (lack of candor) and an inappropriately emotional response during a conversation with his supervisor, as well as poor performance despite additional training and an opportunity to improve; (3) a probationary Criminal Investigator trainee because medical restrictions made it impossible for the individual to meet the physical requirements of the training program; and (4) a probationary Criminal Investigator trainee based on failure to complete the criminal investigator training program because of the individual's failure to disclose on his background investigation form information about ties to a foreign national who was involved in criminal activity.
The AJ noted that in his affidavit, the Deputy Division Director (Director) stated that Complainant was terminated from his Investigative Assistant position because he was unsuitable for employment. The Director stated that he found that Complainant engaged in six specifications of Dishonest Conduct "which is a ground for finding an individual unsuitable under 5 C.F.R. � 731.202(b)(2)." The Director stated he was unaware of Complainant's race, national origin and religion when he found him unsuitable for employment. Moreover, the Director stated that he did not discriminate against Complainant.
The Special Agent in Charge stated that Complainant was terminated during his probationary period because "he was found unsuitable for the position of Investigative Assistant and therefore unable to pass the agency's security process." The Special Agent in Charge stated that Complainant's race, national origin and religion were not factors in management's decision to terminate him during his probationary period.
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, national origin and religion. We discern no basis to disturb the AJ's decision.
The Agency's final order implementing the AJ's decision finding no discrimination 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
October 29, 2014
__________________
Date
2
0120142356
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120142356
7
0120142356