0520120106
02-23-2012
Richard Romeo, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Richard Romeo,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520120106
Appeal No. 0120112542
Hearing No. 520-2010-00178X
Agency No. HS09CBP007279
DENIAL
Complainant timely requested reconsideration of the decision in Richard
Romeo v. Department of Homeland Security, EEOC Appeal No. 0120112542
(October 6, 2011). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. §
1614.405(b).
In the appellate, Complainant alleged that he was subjected to
discrimination on the bases or religion (Catholic) and reprisal for
prior EEO activity when effective July 7, 2009, he was terminated during
his probationary period from his Agriculture Specialist position at the
Agency’s John F. Kennedy International Airport. An EEOC Administrative
Judge (AJ) issued a decision without a hearing which found that the
Agency had articulated legitimate, nondiscriminatory reasons or its
actions, namely, (1) Complainant engaged in unauthorized travel to Cuba;
(2) failure by Complainant to disclose his travel to the Agency's officer
upon his return on his immigration forms; and (3) misusing and displaying
his Agency credentials. The AJ found that Complainant did not deny his
travel to Cuba, failing to disclose his trip on his immigration form,
and/or displaying his credentials.
The AJ also noted that Complainant was aware that he was required to
provide a valid license in order to travel. Complainant did not provide
such a license and he committed all the other violations. Therefore,
the AJ concluded that Complainant failed to show that the termination
was discriminatory based on his religion and/or prior protected activity.
The Commission affirmed the finding of no discrimination.
REQUEST FOR RECONSIDERATION
In Complainant’s request for reconsideration he argues that he was not
told that he was not authorized to travel. Complainant maintains that
he was asked to provide documentation for his trip which he provided.
When a question came up regarding his license, it was his understanding
that he needed to have a license with his name on it in order to travel.
He received the license with his name on it just prior to the trip.
Therefore, he went forward with the trip. Complainant contends that
the Chief made it clear that if he obtained the license in the Bahamas,
he was authorized to proceed to Cuba. If he did not obtain the same,
he should stay in the Bahamas. Complainant maintains that he was never
told by the Agency that his license was invalid and that he should not
proceed on the trip. Complainant argues that his case should have gone
to a hearing as there are material facts at issue, namely, whether
Complainant was authorized to travel.
Complainant contends that he was improperly terminated due to an off
duty trip to be taken to Cuba for a Christian Humanitarian purpose,
that evidently was looked at negatively by certain management officials.
Complainant notes that he was terminated two days before the ending of
his probationary period and up until that time there were no complaints
about his performance.
ANAYLSIS AND FINDINGS
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. We find that Complainant failed to show that the appellate
decision involved a clearly erroneous interpretation of material fact or
law, or that the appellate decision will have a substantial impact on
the policies, practices, or operations of the Agency. Complainant has
failed to show that there were material facts at issue as his conclusory
statements alone without evidence are not sufficient. We agree
with the previous decision that the Agency articulated legitimate,
nondiscriminatory reasons for its actions and Complainant failed to show
that the reasons given were pretext for discrimination. Accordingly, the
decision in EEOC Appeal No. 0120112542 remains the Commission's decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
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
___2/23/12_______________
Date
2
0520120106
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120106