01A02993
08-14-2002
Daniel S. Alvarado, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Daniel S. Alvarado v. Department of Justice
01A02993
August 14, 2002
.
Daniel S. Alvarado,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01A02993
Agency No. I-98-CO62
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.
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 Investigative Section of the
agency's El Paso District Office in El Paso, Texas. From November 1997 to
February 1998, the Supervisory Special Agent (SSA) in charge of one of the
Investigations Units of complainant's facility was placed in the position
of Acting Assistant District Director. This resulted in a vacancy for
the position of Acting Supervisory Special Agent of SSA's unit, which
needed to be filled. Complainant was not selected to fill this temporary
detail position. The selectee for the position had less seniority than
complainant, and was not a member of complainant's protected classes.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on June 29, 1998,
alleging that he was discriminated against on the bases of national origin
(Hispanic) and age (D.O.B. May 1, 1948) when he was not afforded the
opportunity for a Worksite Enforcement detail and temporary promotion,
and when he was denied career-enhancing training opportunities.<1>
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 and age discrimination,
it nonetheless articulated legitimate, nondiscriminatory reasons for
choosing the selectee for the detail at issue. Specifically, the SSA
stated that in making his selection he first offered the position to the
unit member with the most seniority (CW1, Hispanic, DOB: 12/7/50), but
CW1 declined the position. SSA stated that he then offered the position
to the selectee, as the selectee was the next senior most employee in
his unit. (R.O.I., Ex. F3, page 3). The Assistant District Director of
complainant's facility concurred with SSA's selection for the detail,
and stated in his affidavit that, as complainant was not assigned to
SSA's Unit, he was not in line for the detail. (R.O.I., Ex. F4, page 3).
The FAD concluded that complainant failed to show that these legitimate,
nondiscriminatory reasons were mere pretext for discriminatory animus
toward complainant's national origin or age.
As to the alleged denial of career enhancing training opportunities, the
FAD states that the record does not support complainant's contention that
he was not provided with as many training opportunities as employees
outside of his protected classes. The FAD states the complainant
received more hours of training than thirty of the thirty-five employees
in his section. (R.O.I., Ex. F10, page 4). Further, the FAD found that
Management officials in charge of making training assignments state
in their affidavits that general training is approved on the basis of
seniority, while specialized training opportunities are approved on the
basis of relevance of the training to the employees' duties. (R.O.I.,
Ex. F3, page 3, Ex. F4, page 3). The FAD concluded that complainant
failed to show that training assignment selections were based on
discriminatory animus toward his protected classes, or that the agency's
legitimate, nondiscriminatory reasons for its actions were pretextual.
On appeal, complainant makes numerous contentions regarding other
temporary detail appointments that were made at the facility, the
inexperience of the selectee for the detail at issue, and the credibility
of SSA and the Assistant District Director. Complainant also reiterates
numerous contentions regarding denial of training opportunities and
the discriminatory nature of the approval of training assignments.
The agency requests that we affirm its FAD.
Complainant has alleged a claim of disparate treatment which is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation 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). 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
Construction Corp. v. Waters, 438 U.S. 567(1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 ,
253 (1981). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711 , 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990).
Here, the Commission finds that, assuming, arguendo, complainant
established a prima facie case of national origin and age discrimination,
the agency has articulated legitimate, nondiscriminatory reasons for
its actions. Namely, that complainant was not a member of SSA's unit.
Agency officials state that they followed the standard procedure
for filling vacant Acting Supervisor positions by selecting from
within the unit, in order of seniority. Complainant has not shown
by a preponderance of the evidence that this stated procedure was not
followed, nor has he shown that the agency's articulated reasons for
its action were pretextual. In so finding, we note that CW1, who is
a member of both of complainant's protected classes, was the senior
most employee in SSA's unit and the first to be offered the detail.
Further, the record establishes that after CW1, the selectee was the
employee with the most seniority in the SSA's unit.
As to the alleged denial of training opportunities, complainant has failed
to prove by a preponderance of the evidence that unlawful discrimination
played a role in the assignment of training, or that he was denied
training opportunities on the basis of his national origin or age.
In conclusion, the Commission finds that complainant has failed to proffer
any persuasive evidence that the agency's actions were motivated by
discriminatory animus toward complainant's protected classes, or that
the agency's legitimate, nondiscriminatory reasons for its actions
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 14, 2002
__________________
Date
1 The record indicated that several other formal complaints were filed
regarding the Worksite Enforcement detail and temporary promotion, one
of which was appealed to this Commission, Marquez v. U.S. Department of
Justice, EEOC Appeal No. 01A03118 (August __, 2002).