01A15419
10-31-2002
Ruben DeLeon, Jr., Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Ruben DeLeon, Jr. v. Department of the Treasury
01A15419
October 31, 2002
.
Ruben DeLeon, Jr.,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A15419
Agency No. 002284
Hearing No. 330-A1-8019X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Canine Enforcement Officer
at the agency's Customs Service facility in Houston, Texas, filed a
formal EEO complaint on July 19, 2000, alleging that the agency had been
discriminated against him on the bases of national origin (Hispanic) and
reprisal for prior EEO activity when he was not selected for promotion
to Canine Team Leader, GS-1801-11.
At the conclusion of the investigation, complainant received a copy of the
investigative report and 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 did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination/retaliation. The agency's final order
implemented the AJ's decision. From that order, complainant brings the
instant appeal.
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.
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. The record
shows that the Canine Enforcement Unit is divided into two divisions,
one of which handles �passive� dogs, the other�aggressive� dogs. The AJ
explained the distinction as follows:
The difference between the two types of canines is their reaction to
the presence of contraband. Passive canines sit quietly upon finding
contraband while aggressive canines bite and scratch. The canines are
used in separate areas. Passive canines are used inside of airports
and around civilians. Aggressive canines are used in baggage areas and
ports where civilians are not present.� AJ Decision at 2, n1.
The skills required to handle passive dogs are different from those needed
to handle aggressive dogs. Complainant was certified as a handler for
aggressive dogs, but not for passive dogs.
According to the agency, complainant was not selected for the position
of Canine Team Leader because that position involved supervision of
officer's handling passive dogs. According to an agency witness,
the agency preferred to have a passive certified officer placed in the
position because the position in question was �the lead for the passive
program� and �you have to have someone that specializes in passives to
lead the passives.� The selectee, who is non-Hispanic, was certified
to handle passives.
The AJ credited the testimony of the agency witnesses and concluded
that complainant had failed to establish pretext. In the face of that
finding complainant could not prevail either on his claim of national
origin discrimination or his claim of retaliation. We discern no
basis to disturb the AJ's decision which, we conclude, is based on
substantial evidence. 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 agency's final order.<1>
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
October 31, 2002
__________________
Date
1Complainant also makes several arguments
about the AJ's discovery rulings and his conduct of the hearing.
We need not address these arguments other than to say that these are
matters committed to the AJ's discretion and it does not appear that
that discretion was abused in this case.