01A34578_r
11-18-2004
Freddie J. Black, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Freddie J. Black v. Department of Homeland Security
01A34578
November 18, 2004
.
Freddie J. Black,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A34578
Agency Nos. 03-0746; TD-02-2100; TD-01-2070
Hearing Nos. 360-A2-8736X; 270-A1-9122X
DECISION
Complainant appeals to the Commission from the agency's June 13, 2003
decision finding no discrimination. Complainant alleges discrimination
on the bases of age and reprisal when he was denied career development;
denied equal access to travel funds; denied participation in the Mentoring
Program; denied outside employment; harassed; and not selected for
numerous positions. At the conclusion of the investigation, complainant
requested a hearing before an EEOC Administrative Judge (AJ). Following a
hearing, the AJ issued a decision finding no discrimination. The AJ found
that complainant established a prima facie case of age discrimination
and reprisal for prior protected activity. The AJ further found that
the agency articulated a legitimate, nondiscriminatory reasons for its
actions which complainant failed to rebut. The agency issued a decision
dated June 13, 2003, implementing the AJ's decision. Complainant now
appeals the agency's June 13, 2003 decision.
Complainant limits his appeal to the following claims (renumbered in
this decision):
Non-selection as Group Supervisor positions GS-1881-14, Vacancy
Announcement # CAAPS/001KRH on January 19, 2001.
SAIC/New Orleans refused to promote complainant into six GS-14 positions
that were currently available within the New Orleans region of the
U.S. Customs, Office of Investigations. The positions identified are:
(a) Resident Agent in Charge, Shreveport, LA; (b) Resident Agent in
Charge, Nashville, TN; (c) Resident Agent in Charge, Lafayette, LA;
(d) Group Supervisor (Fraud Investigations), New Orleans, LA; (e) Group
Supervisor (Port Security), New Orleans, LA; and (f) Group Supervisor
(HIDTA/Financial Investigations) New Orleans, LA.
Non-selection as Group Supervisor, HIDTA/Financial, New Orleans,
GS-1811-14, on October 15, 2002.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Claim 1
Complainant applied for three Group Supervisor positions under Vacancy
Announcement CAAPS/00-001KRH. The record indicates that the position
was filled under the CAAPS merit promotion process in which applicants
take a computer scan and are numerically scored. The scores are used
to compile the Best Qualified List (BQL). Complainant argues that he
was number one on the BQL. However, the BQL was sent to the selection
panel with the scores removed. After interviews, three individuals were
submitted to the selecting official. Complainant was not one of the
three individuals. We find that the agency has submitted a legitimate
nondiscriminatory reason for the non-selection which complainant failed to
rebut. The selection panel recommended the selectees based on experience
in financial investigations, undercover operations, and marine operations.
Complainant has not shown that his qualifications for the position were
plainly superior to the selectees. Complainant has failed to show,
by a preponderance of the evidence, that complainant was discriminated
against on the bases of age or in reprisal for prior protected activity.
Claim 2
Complainant argues that he was not recommended for six GS-14 positions
that were available in the New Orleans region, which resulted in a
�constructive non-selection.� Specifically, complainant argues that the
positions �became vacant and remained [vacant].� On appeal, complainant
argues that he �initially addressed six available vacancies, however,
[he] took the conservative approach and only considered three of those
positions.� However, complainant does not articulate which three
positions he is addressing on appeal. Nonetheless, we find that the
agency articulated a legitimate, non-discriminatory reason for all six
�constructive non-selections.� First, the record indicates that some of
the positions were not vacant at the time complainant argues he should
have been promoted into the position. Further, the record indicates that
the agency was looking for lateral transfers to save money for the agency,
thus delaying the selections process. Finally, the record indicates
that delays in filling positions are common. Complainant has failed to
rebut the agency's legitimate non-discriminatory reason for keeping the
vacancies open. Complainant has not shown, by a preponderance of the
evidence, that he was �constructively non-selected� because of his age
or in reprisal for prior protected activity.
Claim 3
Complainant argues that he was discriminatorily non-selected for the
Group Supervisor position. The record indicates that the selectee was
selected, in part, for his extremely successful performance, as compared
to complainant, in various investigations. We find that the agency has
articulated a legitimate nondiscriminatory reason for the non-selection,
which complainant failed to adequately rebut. Complainant has not
shown that his qualifications were plainly superior to the selectees.
Although complainant argues he scored in the top 10% of the best
qualified list, the record indicates that the scores were used only to
refer the best qualified and were not used in the ultimate selection.
Complainant has failed to show, by a preponderance of the evidence,
that he was discriminated against on the bases of age or in reprisal
for prior protected activity.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's age. We discern
no basis to disturb the AJ's decision.
Finally, complainant argues on appeal that the hearing was faulty.
The record does not support a finding of abuse of discretion on behalf
of the AJ in conducting the hearing.
The agency's decision finding no discrimination is AFFIRMED.
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
November 18, 2004
__________________
Date