0120113258
11-23-2012
Juan M. Cornejo, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Juan M. Cornejo,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120113258
Hearing No. 540201100011X
Agency No. HS10CBP004808
DECISION
On June 27, 2011, Complainant filed an appeal from the Agency's May 18, 2011, final order 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Border Patrol Agent at the Agency's Yuma Station facility in Yuma, Arizona.
On May 13, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of national origin (Hispanic) when on February 2, 2010, he was terminated from his position during his probationary period.
At the conclusion of the investigation, the Agency provided Complainant 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. When the Complainant did not object, the AJ assigned to the case granted the Agency's March 22, 2011, motion for a decision without a hearing and issued a decision without a hearing on April 21, 2011. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The AJ found the following salient undisputed facts:
1. Complainant was born in El Centro, California and is a United States citizen.
2. Complainant's brother GA was arrested on September 26, 2006 for transporting illegal aliens on a remote road, approximately 25 miles east of the Tecate Port of Entry between California and Mexico.
3. Complainant's brother, GA subsequently pleaded guilty to one count of transportation of illegal aliens and aiding and abetting, a felony, and was sentenced to 24 months, followed by 3 years of supervised release.
4. On or before March 2008, at the time Complainant applied to become a Border Patrol agent, he was aware that is brother had been involved in transporting illegal aliens.
5. In his Border Patrol employment application paperwork, Complainant listed GA as his half-brother, providing only a post office box for his then current address.
6. Complainant did not disclose the fact that his brother, GA was in prison for felony transportation of illegal aliens, although at the time of Complainant's application for employment as a Border Patrol agent, Complainant knew of his brother's incarceration in Arizona.
7. Complainant entered on duty as a Border Patrol agent, GS-5 on February 19, 2009.
8. Complainant attended an 11-week training course at the United States Border Patrol Academy in Artesia, New Mexico.
9. The Academy did not recommend Complainant's retention as a Border Patrol agent.
10. In April 2009, the Agency issued to Complainant Conduct and Efficiency Evaluations rating him unsatisfactory in the areas of acceptance of responsibility, judgment, cooperativeness, ability to perform and personal conduct.
11. At the academy, Complainant failed to follow a direct order from his instructor.
12. Complainant returned to his regular duty station in May 2009.
13. Upon his return, Complainant participated in on-the-job training with supervisory Border Patrol agents.
14. Complainant as well as other intern Border Patrol agents returning from the academy was evaluated in various job-related areas and skills on a regular basis.
15. In June 2009, Complainant's Field Observation Reports reflected that on two consecutive days, Complainant had been carrying a duty weapon with an excess amount of oil and debris in it. His rater noted that this reflected poorly on Complainant and he was not recommended for retention as an agent.
16. In June 2009, Complainant failed to perform a remedial uniform-inspection assignment in which another agent would initial that the agent had inspected his uniform.
17. In June 2009, Complainant failed to qualify on his first attempt with an M-4 rifle.
18. In June 2009, Complainant failed to proficiently answer general knowledge questions concerning the ten codes required for radio communication, and received a "not recommended" rating.
19. In September 2009, Complainant was issued a report and a remedial assignment for reporting to work wearing shoes in an unacceptable condition;
20. In September 2009, Complainant was issued a report that did not recommend retention based on his uniform deficiencies, and making excuses for failing to have his boots in a clean and polished condition.
21. In September 2009, Complainant was issued a report that did not recommend retention based on his failure to qualify with a service weapon, as well as his lack of initiative and motivation.
22. On or about January 11, 2010, Complainant applied for a SENTRI pass which is required for using the designated SENTRI commuter lanes when crossing the International Border.
23. When the Agency conducted its routine background check for SENTRI pass applicants, the Agency learned of the arrest and felony conviction and imprisonment of Complainant's brother, GA.
24. Agency officials made the decision to remove Complainant based on the field observation report and summaries documenting Complainant's performance deficiencies, as well as the information related to the denial of Complainant's SENTRI pass application.
25. Complainant was terminated during the two year trail period, effective February 2, 2010.
The AJ indicated in her decision that while Complainant failed to respond to the Agency's motion for a decision without a hearing, the investigative file discloses that Complainant believed his poor performance was based on computer problems. The record further indicates that Complainant alleges that the Agency's conduct was based on discrimination because of his national origin and where he grew up. The Agency determined that Complainant failed to establish pretext for the Agency's legitimate nondiscriminatory reasons for its decision to terminate Complainant during his probationary period. Ultimately, the AJ found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination.
This appeal followed.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
We find that after a careful review of the record, the AJ appropriately issued a decision without a hearing. We find that record reveals that a comprehensive statement of the allegedly undisputed material facts existed; Complainant had the opportunity to respond to such a statement, and the parties had the chance to engage in discovery before responding. Further, we find that the AJ applied the appropriate standard of review for this case. Additionally, we find that the AJ appropriately considered all justifiable inferences based on the record evidence in Complainant's favor.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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 consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711,715-716 (1983).
Assuming arguendo that Complainant established prima facie cases of national origin discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We find that the record contained evidence of Complainant's poor performance and deficiencies regarding his uniform as well as his failure to qualify with his pistol. Moreover, the record documents Complainant's failure to disclose his brother's felony conviction and imprisonment for the crime of smuggling illegal aliens.
Because we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to prove that the proffered reason was a pretext for discrimination. We find that Complainant failed to establish that the Agency's proffered reasons for his termination were a pretext for national origin discrimination. Accordingly, we find that Complainant failed to establish that he was discriminated against as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we affirm the Agency's final order adopting the AJ's finding of no discrimination.
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
November 23, 2012
__________________
Date
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0120113258
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113258