01995979
02-14-2002
Alonzo A. Saenz, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Alonzo A. Saenz v. Department of Justice
01995979
February 14, 2002
.
Alonzo A. Saenz,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01995979
Agency No. I-96-6785
Hearing No. 360-97-8364X
DECISION
Complainant timely initiated an appeal from the agency's final decision
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 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.
Complainant alleges he was discriminated against on the bases of national
origin (Hispanic) and age (54) when on June 25, 1995, he was charged
Absent Without Leave (AWOL) and Leave Without Pay (LWOP), and when he
received a written reprimand for failure to report to work on that day.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that during the relevant period, complainant was
employed as a GS-12, Supervisory Border Patrol Agent at the agency's
Falfurrias Station facility in Texas. The record evidence shows that
complainant requested leave for June 24 and 25, 1995, and he also wanted
to change his days off for the second week of the pay period to July 7
and 8, 1995. The record also reveals that complainant's supervisor (S1:
White non-Hispanic male, 42 years old) approved complainant's request
to have July 7 and 8, 1995, as his days off. Although complainant had
been approved for leave on June 24, 1995, the record establishes that
prior to receiving approval for June 25, 1995,
S1 responded to a telephone call behind closed doors. Complainant waited
and then left. It is uncontroverted that S1 never told complainant that
he was approved for leave on June 25, 1995.
The record reflects that on June 25, 1995, after being phoned by one of
his co-workers as to why he was not at work even though he was on the
schedule, complainant phoned S1 and told him that he made a mistake and
thought he was off duty. The corresponding pay and earnings statement
indicated eight hours of LWOP. The record further establishes that
on October 17, 1995, complainant received a proposed reprimand.
Subsequently, on October 30, 1995, complainant received an official
written reprimand and was notified that a copy would be placed in his
official personnel folder for two years.
Complainant sought EEO counseling on August 22, 1995, and subsequently
filed a formal EEO complaint with the agency on November 6, 1995,
alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency requested, and the AJ granted,
that the case be transferred from Falfurrias, Texas, to McAllen, Texas,
which is eighty-four (84) miles south of Falfurrias, due to the lack of
adequate conference facilities in Falfurrias and due to the fact that
most of the witnesses were in or closer to McAllen. Following a hearing,
the AJ issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
national origin and age discrimination. Specifically, the AJ found
that complainant demonstrated that similarly situated employees not
in his protected classes were never reprimanded or disciplined when
they were AWOL. The AJ further concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions to wit, the Patrol
Agency in Charge (PIC: White non-Hispanic male, 47 years old) testified
that complainant previously had been warned about unapproved changes
to the schedule, that he should have been aware of the posted schedule
and that he (the PIC) deemed that complainant's excuse did not justify
his oversight.
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. In reaching this conclusion, the AJ found
that although the agency's actions may appear harsh or unfair, that
does not necessarily indicate discrimination in violation of Title VII
or the ADEA.
The agency's final decision implemented the AJ's decision. On appeal,
complainant contends that the AJ erred when she relied upon affidavit
testimony that was not part of the evidence taken during the hearing.
Accordingly, complainant contends that the AJ relied on irrelevant and
inadmissible facts and evidence and, therefore, incorrectly concluded
that complainant's claims for relief should be denied. In its response,
the agency requests that we affirm its final decision.
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).
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
The record evidence reflects that complainant admitted to not verifying
whether he was scheduled to work on June 25, 1995. The record also
establishes that complainant had previously been counseled for altering
work schedules without prior supervisory approval. The Commission also
finds that complainant did not present sufficient evidence that similarly
situated individuals were treated more favorable under like circumstances.
In particular, the AJ found that complainant was not similarly situated
to certain purported comparators who did not occupy supervisory positions
and had not shown that the PIC failed to reprimand other supervisors
that had similar work schedule issues.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's national origin and/or age.
We discern no basis to disturb the AJ's decision. In this regard, we note
that we are unpersuaded by complainant's arguments on appeal concerning
the AJ's reference to affidavits contained in the record which were
executed by persons who did not testify at the hearing. 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 decision.
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
February 14, 2002
__________________
Date