0120065285
06-19-2008
John P. Broderick, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
John P. Broderick,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200652851
Hearing No. 110-2006-00089X
Agency No. HS-05-ICE-000566
DECISION
Complainant filed an appeal from the agency's August 18, 2006 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.
For the following reasons, the Commission AFFIRMS the agency's final
order finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Criminal Investigator (Special Agent) at the agency's Bureau of
Immigration and Customs Enforcement, Atlanta Hartsfield-Jackson Airport
(RAC Hartsfield) facility in Atlanta, Georgia. On February 9, 2005,
complainant filed an EEO complaint alleging that he was discriminated
against in reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964 when:
On or about November 15, 2004, complainant received a memorandum,
dated October 8, 2004, which was to be kept in his personnel
file for a year. The memorandum described the circumstances
surrounding complainant's efforts in August 2004, to pay a
confidential informant.
At the conclusion of the 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 requested
a hearing. Over complainant's objections, the AJ assigned to the case
granted the agency's motion for a decision without a hearing and issued
a decision without a hearing on April 12, 2006.
In her decision, the AJ found that none of the material facts remained
in dispute. The AJ found that complainant had appeared as a witness
in the EEO case of a co-worker in 2000. The AJ found that in July
2004, complainant requested authorization from his supervisor, S1,
to pay a particular confidential informant (CI) $1,000. The AJ found
that S1 told complainant that she thought $1,000 was too much and that
S1 wanted more information regarding the case in which CI was involved,
before approving any payment to CI. The AJ found that complainant asked
S1 for the payment again in August 2004, just before S1 was scheduled
to take annual leave. The AJ found that S1 indicated to complainant
that she wanted to review the case with complainant when she returned.
The AJ found that while S1 was out of the office, complainant asked S2
(another supervisor) to authorize payment of $500 to CI. The AJ found
that S2 questioned complainant about the payment, but ultimately approved
the payment. The AJ found that complainant paid CI $500.
The AJ found that when S1 returned from her leave, she learned that
complainant had paid CI $500. The AJ found that S1 met with complainant
in October 2004, during which meeting complainant explained his reasoning
in asking for the payment through S2 instead of waiting for S1 to
return from leave. The AJ found that in November 2004, complainant
received a copy of a memorandum dated October 8, 2004, that discussed
the meeting with S1 and the circumstances surrounding the payment to CI.
Complainant was told that a copy of this memorandum would remain in his
official personnel file (OPF) for one year.
The AJ found that complainant failed to establish a prima facie case of
reprisal discrimination in that complainant's prior protected activity
occurred more than three years before the unfavorable memorandum was
placed in complainant's OPF. The AJ found that complainant's prior
protected activity was too remote in time to provide the necessary nexus
for reprisal to be inferred under the circumstances. The AJ further found
that the agency's articulated reasons for issuing the memorandum were
not shown by complainant to be pretext. The AJ found that complainant
admitted that he was aware that S1 wanted to wait until she returned
from leave to decide whether and how much to pay CI. The AJ found
that complainant's actions were inconsistent with S1's instructions to
complainant. Accordingly, the AJ found that complainant had not shown
that the agency's decision to issue the memorandum and maintain it in
complainant's OPF for one year to be motivated by reprisal.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
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, 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. Department of Defense, 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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we find that the AJ properly found that no material
facts remained in dispute and that a decision without a hearing is
appropriate under these circumstances. Specifically, we find that the
record contains no evidence that the agency's reasons for issuing the
memorandum to complainant were a pretext to mask discrimination. Assuming
for the sake of argument, that complainant had established a prima facie
case of reprisal discrimination, we find the agency has articulated
legitimate, non-discriminatory reasons for its action that complainant
has not shown to be false, or unworthy of belief. Rather, complainant
admits that he sought approval from S2 when S1 was out of the office
and complainant was aware that S1 desired to review complainant's case
before authorizing any payment to CI. We find nothing in the evidence
shows that S1's actions were motivated by a desire to deter complainant
or others from participation in the EEO process or from opposing agency
policies or practices complainant believed to be discriminatory.
We AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
June 19, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above- referenced appeal number.
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0120065285
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065285