Laurisev.Carroll, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service) Agency.

Equal Employment Opportunity CommissionJan 21, 2003
01A20985 (E.E.O.C. Jan. 21, 2003)

01A20985

01-21-2003

Laurise V. Carroll, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service) Agency.


Laurise V. Carroll v. Department of Justice, Immigrations and

Naturalization Service

01A20985

January 21, 2003

.

Laurise V. Carroll,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

(Immigration and Naturalization Service)

Agency.

Appeal No. 01A20985

Agency No. I-00-C091

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination in

violation of 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 Immigration Inspector in the agency's Houston, Texas,

District. Complainant sought EEO counseling and subsequently filed a

formal complaint on May 20, 2000, alleging that he was discriminated

against on the basis of age (43) when, on January 24, 2000, complainant

became aware that his employment applications, submitted in 1998, for two

different Criminal Investigator positions were deemed ineligible under the

Officer Corps Rating System (OCORS). This system requires, inter alia,

that any person desiring a position in federal law enforcement must be

hired, or have held such a position in the past, by their 37th birthday.

Complainant states that he did hold a federal law enforcement position

prior to his 37th birthday, and that he included this information in one

of the written documents submitted with his overall application, but that

this information was discriminatorliy excluded from consideration and

ultimately lead to complainant's applications being deemed ineligible.

At the conclusion of the investigation into his complaint, 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 complainant failed to properly

and timely submit the information regarding his previous federal

law enforcement position. The agency states in the FAD that while

complainant may have included this information on a written document,

he did not include it in the �work history� portion of the OCORS on-line

application. The Personnel Staffing Specialist (PSS) who handled the

certification under both job announcements at issue testified that

information entered into OCORS is the responsibility of the employee.

PSS further stated that it is an employee's responsibility to notify

personnel when inaccuracies occur, and that such notification did not

come from complainant until March of 2000.

The agency further states that, while complainant can establish a

prima facie case of age discrimination, he cannot rebut the legitimate,

non-discriminatory reasons articulated by the agency. Specifically, the

agency states that (1) the data complainant entered into OCORS did not

reflect his previous law enforcement experience, which caused him to fall

outside the age requirements for federal law officers; (2) complainant

further did not qualify for referral under the jobs certifications because

he had not been an agency employee for as long as the selectees; and

(3) complainant's overall OCORS score was below the cut-off for referral.

On appeal, complainant contends that the agency had the information

regarding his previous law enforcement experience and negligently

ignored it. The agency requests that we affirm its FAD.

ANALYSIS

Under the ADEA, it is �unlawful for an employer . . . to fail or refuse

to hire or to discharge any individual or otherwise discriminate against

any individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual's age.� 29

U.S.C. � 623(a)(1). When a complainant alleges that he or she has been

disparately treated by the employing agency as a result of unlawful

age discrimination, �liability depends on whether the protected trait

(under the ADEA, age) actually motivated the employer's decision.� Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen

Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). �That is, [complainant's]

age must have actually played a role in the employer's decision making

process and had a determinative influence on the outcome.� Id.

To prevail in a disparate treatment claim 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).

He 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 Construction

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 United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 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 Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Herein, the Commission concurs with the agency that complainant properly

established a prima facie case of discrimination. We further concur

that complainant failed to present evidence that, more likely than not,

the agency's articulated reasons for its actions were a pretext for

discrimination. In reaching this conclusion, we note that there is no

evidence that, although the agency did have the information regarding

his previous law enforcement experience properly before it, contrary

to its contention, it chose to disregard this information because of

complainant's age. Complainant is correct in his argument that agency

negligently did not acknowledge his previous law enforcement experience;

PSS clearly states in the FAD that OCORS is used in conjunction with

�any documents submitted by the employee.� The record reflects that

complainant included this information on Optional Form-612, submitted

as part of his application package. The oversight, however, does not

automatically amount to a finding of discrimination. There is not

evidence in the record to suggest that the oversight by the agency

was intentional and/or motivated by a discriminatory animus toward

complainant's protected class. Therefore, without evidence that age

was the determinative factor in the agency's failure to properly credit

him for his previous law enforcement experience, complainant's claim must

fail. Thus, 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

January 21, 2003

__________________

Date