01996153
03-04-2002
Kenny D. Morris, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Kenny D. Morris v. Department of Justice
01996153
03-04-02
.
Kenny D. Morris,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01996153
Agency No. I-96-7088
DECISION
INTRODUCTION
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.
ISSUE PRESENTED
The issue presented herein is whether complainant has established by
preponderant evidence that he was discriminated against on the bases of
national origin (Native American) and age (DOB: March 18, 1949) when:
(1) on October 31, 1996, he was the only Assistant Chief who received
an overall performance rating of �Excellent;� (2) the agency failed to
afford him the opportunity to participate in significant details and
training; and (3) the agency required him to justify his travel requests.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as an Assistant Chief, GS-14, at the agency's Office of Headquarters
of Border Patrol. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on July 16, 1996. 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. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.
Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
his claim. On appeal, complainant contends that the investigation was
inadequate and requests that the Commission order a new investigation
of the matter. Further, complainant claims that the investigator
made inappropriate comments to him suggesting that his complaint lacked
evidence of discrimination. Complainant also noted that the investigator
failed to investigate his claim that, in 1992, he was skipped over in
favor of a younger co-worker for a detail to an Acting Associate Chief
position. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). 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. U.S. Postal
Service Bd. 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); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We, therefore, turn to the issue of whether the agency articulated
legitimate, nondiscriminatory reasons for its actions. As to claim (1),
the Associate Chief stated that complainant was not the only Assistant
Chief to receive an �Excellent� rating. Further, he rated complainant's
overall performance as �Excellent� based on Elements (1) and (3). Element
(1) referred to the employee's ability to formulate and develop overall
Border Patrol objectives; devise plans and policies to execute them.
Element (3) referred to an employee providing guidance to field offices.
The Associate Chief indicated that complainant was rated Excellent
in Element (1) because complainant lacked the leadership qualities he
sought and was reluctant to make decisions and render opinions without
first checking it out with the Associate Chief. As to Element (3),
the Associate Chief noted the same criticism when issues arose in the
field offices. The Associate Chief averred that complainant would
involve him in the issue rather than handling the issue himself.
As to claim (2) regarding details and training, the Associate Chief
stated that he did not deny details and training to complainant based
on his national origin and/or age. The Associate Chief indicated that
most of the details required leadership qualities that complainant did
not possess and that was the main reason he was not selected for these
projects.<1> As for the training, the Associate Chief stated that
it was up to the individual employee to seek training opportunities.
Complainant provided a specific instance when he was not permitted to
attend a training session in Chicago while two other Assistant Chiefs were
permitted to go. The Associate Chief stated that he did not remember
specific details of this denial, however, he averred that approval would
have been given to the employees who applied first. During this instance,
the two other employees had made their requests prior to complainant and,
for coverage reasons, only two out of the three were permitted to go.
Complainant was the last to make his request, therefore, the Associate
Chief denied his request.
Finally, as to claim (3), the Associate Chief stated that in travel
approval, he first determines if the travel is necessary and if the
office will be properly staffed. He averred that he requires all travel
to be justified, by complainant and by all of the other Assistant Chiefs.
Therefore, he argued that complainant's travel requests are not treated
differently than other Assistant Chiefs.
Finding that the agency has articulated legitimate, nondiscriminatory
reasons for its actions, we now turn to complainant to demonstrate that
the agency's reasons were pretext for discrimination. Upon review
we find that complainant has failed to do so. As to claim (1),
complainant argued that the Associate Chief told him he needed to be
more �flamboyant.� The Associate Chief denied using that term but
did state that complainant needed to be more aggressive and confident
with his work. We find that whether or not the Associate Chief used
the word �flamboyant� does not indicate that complainant was rated
�Excellent� based on a discriminatory animus towards his national origin
and/or age. As to claim (2), complainant contended that he had paid his
dues and should have been provided with training and details. Further,
as to the training in Chicago, he claimed that the agency should have
used seniority to determine who would attend. Upon review, we find
that complainant failed to demonstrate that the agency's actions were
based on a discriminatory animus toward his national origin and/or age.
Complainant also alleged favoritism on the part of agency officials in
ratings, details, and training. Upon review of the record, we find that
complainant fails to provide any evidence that the alleged favoritism
was based on a discriminatory animus. Further, complainant failed to
demonstrate that the agency's actions were based on national origin
and/or age. Accordingly, the Commission finds that complainant has
failed to establish his claim of age and national origin discrimination.
In his appeal, complainant argues that the investigation was inadequate
in that the investigator failed to contact several potential witnesses he
had named. Complainant also questions the neutrality of the investigator.
Based on our review of the record, we find that the investigation was
impartial and disagree with complainant's contentions. To the extent
that complainant believed information was missing from particular
witnesses on his behalf, he was free to submit it to the investigator.
The Commission notes that complainant has not provided any statement or
affidavit to refute the agency's reasoning. Therefore, the Commission
finds that complainant's contentions on appeal are not persuasive.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal and the agency's response, 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
____03-04-02______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The Commission finds that the Associate Chief's statement regarding
details also encompasses complainant's claim that he was denied a detail,
in 1992, to an Acting Associate Chief position. This matter was raised
in complainant's complaint, but was not specifically addressed in the
agency's FAD.