01A13471
08-15-2002
Daniel S. Alvarado, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Daniel S. Alvarado v. Department of Justice
01A13471
August 15, 2002
.
Daniel S. Alvarado,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01A13471
Agency No. I-99-C179
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Special Agent, GS-12, in the Investigations Unit of the agency's El
Paso District Office in El Paso, Texas. On July 23, 1999, complainant
submitted a request to the Assistant District Director for Investigations
(S1) to attend a �Pre-Retirement Planning for Law Enforcement and
Firefighters� 3-day training seminar. The training seminar was to take
place in El Paso on August 17, 1999. Complainant's first request was
denied due to �lack of funds�. Complainant later learned that training
funds had been made available, and resubmitted his request which was
then approved. On August 16, 1999, complainant and another employee
(CW1: Hispanic, DOB: 4/17/47) reported to S1's office, and were notified
that S1 was denying their request to attend the training seminar.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on September 20,
1999, alleging that he was discriminated against on the bases of national
origin (Hispanic), age (D.O.B. May 1, 1948), and reprisal for prior EEO
activity when on August 16, 1999, he was notified by S1 that his request
for training was denied.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that assuming, arguendo, complainant
established a prima facie case of national origin, age, and reprisal
discrimination, it articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the FAD found that both complainant and CW1
had attended the training seminar at issue in 1993 and 1997. (Report of
Investigation, Exhibit 8, page 2, Exhibit 16). In his affidavit, S1
stated that as a result of limited funds, he denied complainant and CW1's
request to attend the training because he wanted to assure that those who
had not already attended the training would have the opportunity to do so.
(R.O.I., Ex. 7, page 2). S1 further stated that he believed the training
to be the same every year. (R.O.I., Ex. 7, page 2). The FAD concluded
that complainant failed to show that these legitimate, nondiscriminatory
reasons were mere pretext for discriminatory or retaliatory animus.
On appeal, complainant reiterates numerous contentions regarding S1's
proffered reasons for denying his request to attend the training,
the value of the training at issue, and the use of agency funds for
various purposes. Complainant also states that another employee (CW2)
had attended the training seminar before and did not have his request
to attend the 1999 seminar denied. The agency requests that we affirm
its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the Commission agrees with the agency that assuming, arguendo,
complainant established a prima facie case of national origin, age and
reprisal discrimination, the agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Namely, that complainant
had taken the training seminar twice before, that the seminar did not
differ significantly from year to year, and that due to the limited funds
available for training it was not in the agency's best interest to send
an employee who had attended the training seminar just two years prior.
As to CW2, we note that while the record shows that complainant and
CW1 were not approved to go to the training seminar while CW2 was,
the record also shows that CW2 engaged in prior EEO activity, and was
a member of complainant's protected classes. (R.O.I., Ex. 5). We find
that complainant has failed to proffer any persuasive evidence that the
agency's actions were motivated by discriminatory or retaliatory animus
toward his protected classes, nor has he established by a preponderance
of the evidence that the agency's articulated reasons for denying his
training request were pretextual. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
August 15, 2002
__________________
Date