0120064899
05-01-2008
Gilbert Rendon, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Gilbert Rendon,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200648991
Agency No. CBP05119C/054108
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 21, 2006, final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of the event herein, complainant worked as a Field Officer at
the Hildago Port of Entry in Texas. He claimed discrimination based on
his age (52) when, on March 4, 2005, he was not selected for a special
detail to the Anti-Terrorism Contraband Enforcement Team (A-TCET), in
favor of seven selectees under age 40. Complainant did not request a
hearing, and the agency issued a final agency decision (FAD), finding
that the agency did not discriminate against complainant as alleged.
The selecting official (SO), the Chief for Immigration for the Hildago
and Pharr Ports, explained the criteria he considered, which included
skills in team building, interpersonal, motivational, and leadership; high
rates of interceptions and apprehensions; and comments from supervisors.
In regard to complainant, he stated that he did not select him, having
concluded that complainant lacked teamwork and interpersonal skills
in dealing with the public and fellow employees. In this regard, he
noted that the agency had received adverse comments about complainant
from his co-workers, the public, the Mexican Consulate, and Congress;
that his supervisors did not provide positive reports regarding his
performance and work habits; and that he had a disciplinary acting
pending concerning use of his cell phone, which demonstrated to the SO
that he failed to follow agency rules. Although complainant contended
that he was the most experienced candidate, the SO stated that neither
experience nor years of service were criteria for selection.2
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred.
Accordingly, the agency's decision 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
______05-01-2008____________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 In the case of a nonselection, the Commission utilizes the
comparative qualification standard to determine whether a selection was
discriminatory. The comparative qualifications standard provides that
"disparities in qualifications must be of such weight and significance
that no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over [complainant] for the
job in question." Ash v. Tyson Foods, Inc., 190 Fed. Appx. 924, 88
Empl. Prac. Dec. P 42,608 (11th Cir. 2006), cert. denied, 127 S.Ct. 1154
(Jan. 22, 2007). In the present case, there is no evidence to support
such a finding.
??
??
??
??
2
0120064899
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120064899