Stephen L. Carle, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMar 24, 2006
01a55809_r (E.E.O.C. Mar. 24, 2006)

01a55809_r

03-24-2006

Stephen L. Carle, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Stephen L. Carle v. Department of Homeland Security

01A55809

March 24, 2006

.

Stephen L. Carle,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01A55809

Agency No. HS-04-0882

DECISION

Complainant initiated an appeal from a final decision 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. 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 at the agency's Calais, Maine

facility. Complainant sought EEO counseling and subsequently filed a

formal complaint on October 2, 2002, alleging that he was discriminated

against on the basis of age (48)<1> when:

On July 3, 2002, complainant learned that was not selected for the

position of Supervisory Immigration Inspector, GS-1816-12, announced under

vacancy announcement number ER MSP II 02-154, Calais, Maine Sub-office,

Portland District, Portland, Maine.

After an investigation, the agency issued a final decision, finding

no discrimination. In its final decision, the agency concluded that

complainant failed to show that the agency's articulated reasons for its

selection were a pretext for discrimination. Specifically, the agency

found that the selecting official (retired from federal service at the

time of the investigation) considered the comments of supervisory agency

officials who did not recommend complainant for a supervisory position

based on his lack of people skills at the time of the selection.

On appeal, complainant contends that the agency officials consulted by

the selecting official were less than truthful regarding a specific

incident that occurred years earlier, in which the agency received a

letter of complaint from an individual with whom complainant had dealt

in the course of his duty at the port of entry in Vanceboro, Maine.

Complainant explains that he has significantly more education and

experience with immigration inspections than the selectee and should

have been selected. Complainant contends that each of the officials

providing negative references to the selecting official failed to

provide an accurate assessment of complainant's supervisory skills,

had ulterior motives for providing the negative references and failed to

give complainant credit for previously dealing with a problem employee.

On appeal, the agency requests that we affirm its final decision.

Although the Commission finds that complainant properly established a

prima facie case of age discrimination, (neither party disputes that

the selectee was some 20 years younger than complainant), we also find

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 complainant

describes at length, the various conflicts he has experienced throughout

his career that he believes motivated the agency officials to provide the

negative references upon which the selecting official relied. However,

we find that complainant has failed to show that age discrimination

was the real reason that complainant was not selected. Nothing in the

record indicates that the selecting official considered the age of either

candidate at the time of the selection. Instead, the record indicates

that the selecting official considered complainant's tenure with the

agency, previous supervisory performance, and the recommendations the

selecting official received. We note that several agency officials who

had worked with complainant indicated to the selecting official that

they would not recommend that complainant be selected for a supervisory

position.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, and the agency's response, we AFFIRM the agency's

final decision finding no discrimination.

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

March 24, 2006

__________________

Date

1Complainant initially alleged discrimination on the basis of reprisal as

well, but this basis was subsequently withdrawn during the investigation.