Hiram Andrades, Complainant,v.John Ashcroft, Attorney General, Department of Justice,<1> Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01A43715_r (E.E.O.C. Nov. 29, 2004)

01A43715_r

11-29-2004

Hiram Andrades, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


Hiram Andrades v. Department of Justice

01A43715

November 29, 2004

.

Hiram Andrades,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,<1>

Agency.

Appeal No. 01A43715

Agency No. 00-2098

Hearing No. 160-A1-8216X

DECISION

Complainant filed this appeal from the April 19, 2004 agency decision

implementing the March 3, 2004 decision of the EEOC Administrative Judge

(AJ) finding no discrimination.

Complainant alleged in his December 27, 1999 complaint that he was

discriminated against on the bases of race (Black Hispanic), national

origin (Puerto Rican) and reprisal for prior EEO activity when in 1999,

he was not selected as Project Officer for Vacancy Announcement (VA)

Numbers 99-282 and 99-138.

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 AJ, adopting the agency's motion for

summary judgment in its entirety, issued a decision without a hearing,

finding no discrimination. The AJ stated that even analyzing the

facts in the light most favorable to complainant, the fact remained

that complainant voluntarily signed a three-year agreement to remain in

Puerto Rico.

In its motion for summary judgment, the agency stated that complainant had

established a prima facie case of racial discrimination but had failed to

establish a prima facie case of reprisal discrimination.<2> The agency

stated that it had articulated several non-discriminatory reasons for

its non-selection. The agency noted that complainant was subject to the

provisions of ATF Brief 1500.24 which required that complainant remain

in Puerto Rico for no less than three years. The agency also noted

that even without the existence of ATF Brief 1500.24, it was reasonable

for management officials to consider complainant's placement in Puerto

Rico to be significant enough not to undo in less than a year because:

(1) complainant volunteered to be relocated; (2) complainant received a

$15,000 bonus for the relocation; (3) complainant had over 10 years of

field experience in addition to a Bachelor of Arts in Spanish; and (4)

the Puerto Rico field office was a critically understaffed post of duty.

The record reveals that in 1999, complainant applied for the position

of Program Officer GS-13 in Washington, D.C. under VA Numbers 99-138

and 99-282. Complainant was not selected for either of the positions.

The record reveals that in 1998 complainant volunteered to relocate

to a field office in Puerto Rico as a GS-13 Special Agent. The record

reveals that on October 8, 1998, complainant signed a Continued Service

Agreement. The Continued Service Agreement, which is contained in

the record, provided that complainant agreed to remain in the employ

of the Department of Treasury for a period of not less than 36 months

in the continental United States or in the duty station of Puerto Rico.

The agreement also reveals that complainant received a $15,000 relocation

bonus from the agency. The agreement also provided that if complainant

resigned or otherwise separated from the Department of Treasury without

authority or was removed for cause before the end of 36 months, he had

to repay the Department of Treasury on a pro rata basis.

The record contains ATF Brief 1500.24, effective April 22, 1998 with

an expiration date of April 22, 2000. Brief 1500.24 provided that

Puerto Rico was considered both a hardship and overseas position and

that employees placed in hardship or overseas positions "will serve"

a three-year tour of duty.

Also contained in the record is the affidavit of the Chief of the

Financial Management Division (FMD) who was also the Deputy Chief

Financial Officer (DCFO) and the selecting official. She stated that

as the FMD Chief she was the selecting official for all FMD vacancies

and that she obtained recommendations from immediate supervisors for

selections. The FMD Chief stated that complainant was the only applicant

for both positions. She stated further that she received input regarding

the selection for VA 99-282 from the then Special Agent in Charge (SAIC)

of the Resource Management Branch. The FMD Chief stated that the agency

had recently expended a lot of money on complainant to move him to Puerto

Rico because complainant had special language skills which were needed

and had received a relocation bonus. The FMD Chief also indicated that

the SAIC told her that relocation bonuses were paid only when staffing

or skills in an area were critical. The FMD Chief also stated that the

SAIC told her that complainant's personnel appraisal showed a lack of

attention to internal controls. The FMD Chief further stated that based

on the SAIC's input, she decided not to select complainant. The FMD

Chief also stated that when complainant applied for the re-advertised

position (99-138), she decided not to select complainant based on the

recent relocation move and the special skills needed in the location.

The FMD Chief stated that from October 1, 1999 to the time of her

affidavit, she had made six selections, two of which were the positions

for which complainant applied. She stated that she had no knowledge

of complainant's involvement in the EEO complaint process, never had a

direct supervisory relationship over complainant, and that complainant's

EEO involvement was not mentioned to her.

The record also contains a December 9, 2002 Memorandum from the Assistant

Director of Field Operations to all SAICs and Special Agents requesting

volunteers for reassignment to Puerto Rico. The Memorandum notes that

pursuant to ATF Brief 1500.24, special agents selected would serve

a three-year term. The Memorandum also reflects that historically,

Puerto Rico had encountered difficulty in recruiting applicants and

as a result, selected individuals were eligible for a relocation bonus

or 25 percent of base pay. A similar Memorandum, dated April 7, 2003,

is contained in the record.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case. If a case

can only be resolved by weighing conflicting evidence, summary judgment

is not appropriate. In the context of an administrative proceeding,

an AJ may properly consider summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

After a careful review of the record, the Commission finds that grant of

summary judgment was appropriate, as no genuine dispute of material fact

exists. We find that the AJ's decision properly summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

Assuming without deciding that complainant established a prima facie case

of discrimination on each prohibited basis, the agency has articulated

legitimate, non-discriminatory reasons for its non-selections. The record

reveals that complainant was subject to ATF Brief 1500.24 and had signed

an agreement to work in Puerto Rico for three years. In addition,

the FMD Chief stated that she decided not to select complainant based

on the relocation move and the special skills needed in the location.

There is also evidence in the record indicating that the office in

Puerto Rico was understaffed. Further, construing the evidence to

be most favorable to complainant, we note that complainant failed to

present evidence that any of the agency's actions were motivated by

discriminatory animus toward complainant's protected classes.

As a final matter, the Commission also concludes that the AJ's failure

to consolidate two other complaints of complainant was not improper.

Consolidation of complaints lies within the discretion of an AJ and we

see no abuse of the discretion in the instant matter. See 29 C.F.R. �

1614.606.

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

November 29, 2004

__________________

Date

1The complaint was originally filed against

the Department of Treasury's Bureau of Alcohol, Tobacco and Firearms

(ATF). Effective January 24, 2003, the ATF and its law enforcement

functions were transferred to the Department of Justice.

2The agency did not address complainant's allegation of national origin

discrimination.