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