01a53624
09-28-2005
Arthur R. Eippler, Jr., Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
Arthur R. Eippler, Jr. v. Department of Homeland Security
01A53624
September 28, 2005
.
Arthur R. Eippler, Jr.,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.
Appeal No. 01A53624
Agency No. HS 04-0372
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. and 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.
The record reveals that complainant, an applicant for employment at
the agency's Harlingen District Office, Harlingen, Texas facility,
filed a formal complaint on February 14, 2002, alleging that the agency
had discriminated against him on the bases of race (Caucasian), national
origin (non-Hispanic), and age (D.O.B. 7/8/55) when:
on October 16, 2001, he was not selected for the position of Detention
Enforcement Officer (DEO), GS-1802-5, announced under Vacancy Announcement
Number DE-HC-2000-218SO.
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. Complainant
requested that the agency issue a final decision.
In its FAD, the agency found no discrimination. The agency concluded
that the presumption created by the prima facie case was destroyed by
unrebutted legitimate, nondiscriminatory reasons for complainant's
non-selection. The agency further found that complainant failed to
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination.
On appeal, complainant, through his attorney, contends that the
agency's decision was incorrect in finding that his non-selection was
not discriminatory. Complainant contends that his qualifications were
superior to those of the selectees. Specifically, complainant contends
that he had over eight years of law enforcement experience while one
of the selectees had worked for the agency a little over two years.
Complainant contends that the other selectees "had no federal law
enforcement background and were hired out of jobs like working for an
automotive store."
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
We find that the agency articulated a legitimate, non-discriminatory
reason for its employment action, which was not persuasively
rebutted by complainant. The record reflects that eleven candidates,
including complainant, were considered qualified for the position of
Detention Enforcement Officer, GS-1802-5. The record reflects that
the Recommending Official (RO) stated that he did not interview the
candidates, including complainant.<1> The record further reflects that
the RO stated that after a review of the candidates' application packages,
he sent his recommendation of ten candidates for the subject positions
to the Selecting Official (SO). The RO stated that he did not recommend
complainant for the subject position because he "has jumped from job to
job according to his resume."
The record contains an affidavit from the SO. Therein, the SO stated that
in making his determination for the selection of the subject positions,
he looked at the overall quality of the candidates' application packages,
including their experience, education and knowledge. The SO stated
that he also gives "considerable weight to the recommendations of the
Recommending Officials, who are the ones that will have to work with
the Selectees." The SO stated that he selected ten candidates based on
RO's recommendations.<2> The SO stated that he did not know the specific
reason why the RO did not recommend complainant for the subject positions.
We find that complainant has not demonstrated that the agency's
articulated reasons for not recommending him for the position in question
were a pretext for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
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
September 28, 2005
__________________
Date
1The record reveals that during the relevant
time, the RO retired from agency employment and did not submit an
affidavit as part of the investigation of complainant's claim.
2The record reveals that only seven out of the ten selectees accepted
the offers for the subject positions.