01A33413
04-20-2004
Ruben Quintana, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, (Immigration Naturalization Service) Agency.
Ruben Quintana v. Department of Homeland Security
01A33413
April 20, 2004
.
Ruben Quintana,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
(Immigration Naturalization Service)
Agency.
Appeal No. 01A33413
Agency No. I-00-WO43
DECISION
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. 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 an Senior Immigrant Inspector, (GS-11/10) at the agency's
Immigration and Naturalization, San Ysidro Port of Entry (SYPOE),
Chula Vista, California facility. Complainant sought EEO counseling
and subsequently filed a formal complaint on March 1, 2000, alleging
that he was discriminated against on the basis of national origin
(Hispanic/Mexican) and in reprisal for prior EEO activity when: (1) his
work scheduled was changed; and (2) he was directed not to work any more
scheduled overtime, including administratively uncontrollable overtime.
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.
In its FAD, the agency concluded that complainant did not establish
a prima facie case of national origin discrimination or retaliation.
Specifically, the agency found that the change in complainant's schedule
did not significantly alter or disrupt complainant's conditions of
employment. The agency also found that instead of started at 7:00
a.m. and working until 4:00 p.m, his prior schedule, complainant would
start at 8:00 a.m. and work until 5:00 p.m. The agency further found
that there is no evidence on the record that this scheduling change
altered complainant's conditions or privileges of employment. Finally,
the agency found that all INS inspection employees, including complainant,
were restricted to a maximum of $28,000.00 in all types of overtime.
The agency concluded that Hispanic and non-Hispanic employees were
equally restricted. Complainant makes no new contentions on appeal.
The agency requested that we affirm its FAD.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). A complainant must first establish a prima facie
case of discrimination. He can do this by establishing that similarly
situated individuals outside of his protected classes were treated more
favorably than he was or by setting forth some other evidence from which
a reasonable fact-finder could draw an inference of discrimination.
See Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
In this matter, we find that complainant failed to establish that any
similarly situated employee out of his protected group was treated
more favorably under similar circumstances. The record shows that
employees outside of complainant's protected class were subjected to
changes in their schedule. Moreover, schedule changes occurred at
least every six months, if not more frequently, and are predicated on
the agency's necessities. The record also shows that employees outside
of complainant's protected class were also subject to restrictions in
overtime due an agreement with the local union. Further, we conclude
that complainant did not set forth any other evidence from which we
could draw an inference of national origin discrimination or retaliation.
Therefore, after a careful review of the record, 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
April 20, 2004
__________________
Date