Sarah Jimenez,
Complainant,

v. 

Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120102358

Hearing No. 480-2009-00623X

Agency No. HS-08-CBP-007404-160143

DECISION

On May 12, 2010, Complainant filed an appeal from the Agency's April 16, 2010, final order concerning her 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 accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).  For the following reasons, the Commission AFFIRMS the Agency's final order.

ISSUES PRESENTED

The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether Complainant established that she was subject to discrimination based on national origin and sex as alleged


BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a U.S. Customs and Border Protection Officer, GS-1895-5, at the Andrade Port of Entry, in Winterhaven, California.  On October 9, 2008, Complainant filed an EEO complaint alleging that the agency discriminated against her on the bases of race (Hispanic),1 national origin (Mexican-American), and sex (female) when on July 16, 2008 she was terminated during her probationary period for being arrested for driving without headlights at night while under the influence of alcohol.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).  Complainant timely requested a hearing.  On June 16, 2009, the Agency submitted a motion for a decision without a hearing.  After Complainant failed to object within the prescribed time period, the AJ granted the Agency's motion and issued a decision without a hearing on March 25, 2010.  

The AJ found the following facts:  On March 12, 2007, Complainant was hired as a U.S. Customs and Border Protection Officer at the Andrade California Port of Entry under the Federal Career Intern Program.  AJ Decision at 2.  On April 24, 2008, Complainant was stopped by the Yuma Police Department for driving without her headlights being turned on.   The police officer noticed a strong odor of alcohol coming from Complainant's breath and she admitted to drinking alcohol prior to driving.  After a Field Sobriety Test (FST) was administered, Complainant was arrested for driving under the influence (DUI). 

The Port Director (PD) at Andrade and Complainant's third level supervisor reported the incident to the Director of Field Operations (DFO) on April 25, 2008.  That same day, PD also confirmed the arrest with the Yuma Police Department and Complainant was placed on administrative duties.  Complainant's credentials and computer access were suspended and she was required to turn in her badge and service-issued weapon pending the blood test results from the DUI arrest.   

On June 20, 2008, the Arresting Officer informed PD that the blood test results were complete and that he would provide PD with a copy of the results when they became available at the Yuma Police Station.  On July 7, 2009, PD picked up a copy of the blood test results from the Yuma Police Station.  The analysis showed that Complainant's blood contained 0.133% ethyl alcohol, significantly beyond the legal limit of .08%.  PD gave the results to DFO and Labor and Employee Relations.  

PD recommended that Complainant be terminated because the blood test verified the DUI allegation and she was still a probationary Officer.  By letter dated July 10, 2008, DFO notified Complainant of his decision to terminate her internship based on the fact that she was arrested on April 24, 2008 in Yuma, Arizona, for driving under the influence of alcohol.  

The AJ found that a white male was terminated on October 25, 2008 for having been arrested and charged with .08 or higher blood alcohol chemical test result.  The AJ also found that the record revealed that a white female probationary intern was terminated on November 4, 2008 after being arrested for driving under the influence of alcohol.  Complainant stated that female officers were being terminated at a higher rate than male officers for the same perceived deficiencies or actions.  She alleged that the Agency policies had a disparate impact on Hispanic females.  She also stated that she was never arrested for the DUI.    

The AJ found that the workforce profile in July 2008 showed that the Port of Andrade had a total of 53 employees.  Of those 53 employees 36 were white, (29 males and 7 females): 2 were black, (1 is male and 1 female); 13 were Hispanic. (8 males and 5 females); 2 were Asian American. (1 male and 1 female).  DFO provided affidavit testimony that between November 2007 and November 2008 he terminated 12 employees.  Of those, 5 were probationary.  Of the 12 employees terminated, 8 were White, (3 males and 5 female). 3 were Hispanic, (2females and one male).    

The AJ found that Complainant failed to establish a prima facie case of discrimination based on her race, sex or national origin.  The AJ determined that Complainant failed to provide evidence of similarly situated individuals outside of her protected groups who were treated differently from her.  The AJ found that although Complainant alleged that female officers were being terminated at a higher rate than male officers for the same infractions, Complainant provided no evidence of any employee who had been arrested for a DUI, who was not subsequently fired.  The AJ noted that the record contained evidence that a white male and a white female were both fired after being arrested for driving while under the influence. 

The AJ found that even if Complainant established a prima facie case of disparate treatment, the Agency articulated legitimate, nondiscriminatory reasons for its actions.  Specifically, the AJ found that DFO provided affidavit testimony that the reason Complainant was terminated was due to her arrest for driving under the influence and the blood alcohol analysis which indicated that her blood alcohol level was 0.133%.  The AJ concluded that Complainant was treated the same as other employees who had been arrested for driving while under the Influence of alcohol.   

The AJ also concluded that Complainant presented no evidence to support her contentions that the Agency's policy of terminating probationary employees who have been arrested for criminal conduct had a disparate impact on Hispanic females.  The AJ concluded that Complainant failed to demonstrate that she was discriminated against as alleged.  

The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant makes no contentions on appeal.  The Agency requests that we affirm the AJ's finding that Complainant failed to prove she was discriminated against as alleged.  

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 (MD-110), at Chapter 9, § VI.B. (November 9, 1999) (an AJ'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.  The record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts existed; the parties had the opportunity to respond to such a statement, and the parties has the chance to engage in discovery before responding.  Further, Complainant has not demonstrated that a genuine issue of material fact exists such that a hearing is warranted with regard to these claims.

Disparate Treatment

To prevail in a disparate treatment case such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  She must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination.  Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978).  The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct.  See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997).  To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.  Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147-48 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 
We assume that Complainant established a prima facie case of national origin and sex discrimination.  Nevertheless, we find that even taking the facts in the light most favorable to Complainant, the Agency articulated a legitimate, nondiscriminatory reason for terminating Complainant.  Specifically, DFO stated that the reason for terminating Complainant was that:
On April 24, 2008, [Complainant was] pulled over by an officer of the Yuma Police Department for failing to have her headlights on at night.  [She was] arrested for driving under the influence.  A blood alcohol analysis was performed and the results indicated that [her] blood alcohol level was 0.133%, well above the legal limit.
DFO's Affidavit at 2.  
Because we find that the Agency articulated a legitimate, nondiscriminatory reason for terminating Complainant, she now bears the burden to prove that the Agency's proffered reason was a pretext for discrimination.  Complainant provided affidavit testimony that:
[T]he officer who stopped me went to my employer and had access to my personnel data and discussed my status with a supervisor at the port which led to my termination.  Had I not been a female Hispanic officer but instead a male officer, the supervisor would not have allowed a male police officer to have an invasive discussion about me and my employment status.  Additionally, I would not have been fired for disputing my blood alcohol level with the officer which was the real issue, i.e., being an uppity female Hispanic which the Agency views with contempt.
Complainant's Affidavit at 3.  
Complainant also argues that no charges were filed in her case.  Id. at 3-4.  We find, however, that these assertions alone do not establish that the Agency's proffered reasons for terminating Complainant were a pretext for discrimination.  Further, nothing in the record supports Complainant's contentions that the Agency was motivated by discriminatory animus.  Accordingly, we find that the AJ appropriately determined that Complainant failed to establish that she was discriminated against as alleged.
Disparate Impact

To establish a prima facie case of Disparate Impact, Complainant must show that an Agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class.  This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy.  Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (Complainant must present "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion").  Specifically, Complainant must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy.  Id.; Obas v. Dep't of Justice, EEOC Appeal No. 01A04389 (May 16, 2002).  The burden is on the Complainant to show that "the facially neutral standard in question affects those individuals [within the protected group] in a significantly discriminatory pattern."  Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Dep't of the Navy, EEOC Petition No. 03990119 (August 31, 2000).

We find that Complainant failed to provide any evidence to show that a statistical disparity existed that was linked to the policy to terminate employees who were arrested for DUIs.  We recognize that the Commission's policy is that since the use of arrest records as an absolute bar to employment has a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment.  Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982), EEOC Notice No. 915.061 (Sept. 7, 1990).  Here, however, Complainant has failed to present any evidence to show that there is any disparity in this case.  Accordingly, we find that Complainant failed to establish that the Agency's policy resulted in a disparate impact on Hispanic women 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 AJ's finding that Complainant failed to establish that she was discriminated against as alleged.
                
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


__11/29/10________________
Date


1 The Commission considers the term "Hispanic" to be a description of national origin, not race. Accordingly, we will address Complainant's discrimination claim as being based on national origin and sex. 
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0120102358






U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013    



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