James W. Castillo, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionDec 10, 2003
01A22426_r (E.E.O.C. Dec. 10, 2003)

01A22426_r

12-10-2003

James W. Castillo, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


James W. Castillo v. Department of Justice

01A22426

December 10, 2003

.

James W. Castillo,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01A22426

Agency No. D-98-3470

Hearing No. 100-99-7760X

DECISION

Complainant filed a timely appeal from a final agency decision concerning

his complaint of unlawful employment discrimination brought pursuant

to Title VII of the Civil Rights Act of 1964 (Title VII), as amended,

42 U.S.C. � 2000e et seq.

The record reveals that during the relevant time, complainant was employed

by the agency as a Assistant Special Agent-in-Charge at its Philadelphia

Field Division (Drug Enforcement Administration). Complainant sought

EEO counseling and subsequently filed a formal complaint on February 2,

1998, claiming discrimination on the bases of national origin (Hispanic)

and retaliation (for prior protected EEO activity) concerning his

non-selection for ten positions.

Complainant claimed that he was transferred against his wishes to

Philadelphia from a station in Bolivia, due to an incident of manager

misconduct at the Bolivia station, notwithstanding the fact that the

agency cleared him of wrong-doing regarding this matter. Complainant

indicated that the transfer to Philadelphia is the subject of another

EEO complaint (D-96-3393).<1> Complainant further indicated that

since this transfer to Philadelphia, he applied for or was otherwise

eligible for consideration for numerous other positions, but was not

selected. Complainant claimed that because he assisted co-workers with

EEO matters while in Bolivia, and filed his own EEO complaint concerning

his transfer to Philadelphia, his repeated non-selection for so many

positions for which he was highly qualified, was motivated by retaliation.

Complainant asserted that he wrote a letter to the Attorney General,

expressing his belief that his transfer to Philadelphia, and the agency's

refusal to select him for other positions, was retaliatory. Complainant

requested a fact-finding investigation. Complainant further claimed that

because the managers involved in the misconduct in Bolivia were Hispanic,

his non-selection could be motivated by national origin animus as well.

At the conclusion of the investigation, complainant requested a hearing

before an EEOC Administrative Judge, but subsequently withdrew this

request, and requested that the agency issue a final decision. During the

investigation, complainant identified seventeen additional positions

for which he was not selected, claiming national origin discrimination

and retaliation regarding these positions as well.

In its final decision, the agency determined that as an initial matter,

it was necessary to identify which of complainant's claims could properly

be included in his complaint. The agency found that in his previous

complaint (D-96-3393), filed on September 24, 1996, complainant claimed

he was not selected for approximately twenty positions, from September

1, 1994 to May 1997. The agency noted that seven of the non-selections

identified in the current complaint occurred before the date of the

prior complaint, and the agency otherwise challenged all but five of

complainant's non-selection claims as untimely. Specifically, the agency

found that complainant initiated EEO Counselor contact on December 17,

1997, such that only one non-selection, in November 1997, under vacancy

number CMB-98-311, could be considered timely.

Next, the agency noted that for the period of July 1997 to November

1997, complainant identified five additional incidents of non-selection,

under the following vacancy numbers: CMB-97-339; CMB-97-344; CMB-97-349;

CMB-97-354; CMB-97-362. The agency found that the first four of these

vacancies occurred in July 1997, and would be considered timely due to

complainant's letter to the Attorney General in August 1997. However,

concerning complainant's non-selection under vacancy number CMB-97-362,

the agency determined that this occurred in September 1997, after the

Attorney General letter, and that it was also untimely with reference

to his December 17, 1997 EEO Counselor contact. Nonetheless, because

complainant's non-selection under vacancy number CMB-97-362, had already

been investigated, the agency determined that it would also include

this claim in the complaint.

In addressing whether additional claims of non-selection could be

included in the complaint under the continuing violation theory, the

agency determined that even though the non-selections occurring from 1995

to 1998, potentially involved interrelated incidents of discrimination,

record evidence demonstrates that complainant suspected discrimination

at the time of his non-selection for each position. In particular, the

agency sets forth portions of complainant's deposition, to show that he

suspected discrimination regarding forty-five non-selections, at the time

they occurred, but decided not to pursue each one so as not to over-burden

the system. The agency further found that because of his familiarity with

the EEO process, complainant was aware of the time limit, and the need

to timely initiate EEO counseling as to each incident of non-selection.

In concluding, the agency determined that the instant complaint consisted

of complainant's claim of discrimination concerning his non-selection

for the following positions:

CMB-97-339, Assistant Country Attache, La Paz (July 1997);

CMB-97-349, Assistant Country Attache, Bogota (July 1997);

CMB-97-339, ASAC, Miami (July 1997);

CMB-97-354, ASCA, Ft. Lauderdale (July 1997);

CMB-97-362, SouthCom, Miami (September 1997); and

CMB-98-311, Senior Inspector, OPR, Miami (November 1997).

Next, in addressing the merits of the complaint, the agency noted

complainant's contention that he was better qualified than each of the

selectees for the above referenced positions, and acknowledged that this

could demonstrate a pattern of discrimination. However, the agency found

that because complainant failed to submit evidence to demonstrate that he

was significantly more qualified than the selectees, so as to raise an

inference of discrimination, or to show that the agency's non-selection

decisions were otherwise motivated by animus, he ultimately failed to

prevail in his claim of discrimination.

In particular, the agency found that complainant failed to establish a

prima facie case of national origin discrimination as to positions 1,

2, and 6, because all three selectees were Hispanic. As to all six

positions, the agency determined that the involved agency officials

articulated legitimate, non-discriminatory reasons for not selecting

complainant, especially noting the testimony of the selecting official

(SO) for these positions.<2> Specifically, the agency asserted that SO

testified that unless there was a clear need to do so, he would not move

complainant from Philadelphia because of the short time (less than a year)

that he had been in that location. Additionally, the agency indicated

that SO testified that he placed much emphasis on the assessment of

complainant's current supervisor in Philadelphia, who indicated that

complainant was not performing in a manner expected of his position and

experience, and that complainant continued to �sulk� about his assignment

to Philadelphia. The agency indicated that SO attested that he would not

consider complainant for any position until his performance improved, and

he demonstrated some initiative, and that he did not support complainant

for the positions at issue, or any of the other positions referenced by

complainant, for these reasons.

The agency then determined that complainant failed to present any evidence

that his national origin or prior EEO activity were considered by SO,

or any of the other selecting officials involved in the selection process

for the positions at issue. The agency also found that complainant failed

to show that the articulated reasons were a pretext for discrimination,

presenting no more than unsubstantiated allegations in this regard.

On appeal, complainant argues that the agency improperly considered only

six of the non-selections he identified, arguing that they all should

be considered as a continuing violation. Specifically, complainant

asserts that the agency concedes that five of the claims are timely,

and that the remaining non-selection claims are part of a related series

of discriminatory acts evidencing the agency's discriminatory practice of

not selecting complainant. Moreover, complainant avers that even if all of

the non-selections cannot be deemed timely under a continuing violation

theory, then the agency's recurring failure to select complainant must

be viewed as persuasive evidence of the agency's bias against complainant.

In addressing the agency's merits determination, complainant argues

that the agency's proffered reasons for not selecting complainant are

a pretext for discrimination. Specifically, complainant argues that

SO's testimony is not credible, noting that he executed a subsequent

affidavit to �clarify� certain inaccuracies in his first affidavit,

thereby making inconsistent statements, rendering his testimony

unreliable. In particular, complainant argues that SO definitely knew of

his prior EEO activity during the time at issue, asserting that they had

a confrontation about settlement terms to resolve his prior complaint,

and yet SO denied his knowledge in his first affidavit. However, in the

second affidavit, complainant notes that SO admits to now recollecting

that he knew of complainant's EEO activity, but is vague on when he

knew it, so as to suggest that he might not have known until after the

selections at issue were made.

Additionally, complainant argues that the SO's reaction in a hostile

manner to the attempt to settle complainant's prior complaint is further

evidence of SO's bias against the EEO process. Complainant argues

that SO's bias is further demonstrated in that he viewed complainant's

unhappiness with his Philadelphia assignment as a reason not to select

him, ignoring the fact that he was transferred to an unwanted post due

to discriminatory and retaliatory animus.

Furthermore, complainant argues that his qualifications far exceeded those

of the selectees for the positions at issue. In this regard, complainant

asserts that he has 28 years of experience in a wide variety of positions,

served in foreign posts, and worked with military personnel. Complainant

avers that he consistently received the highest performance ratings, and

has never received any disciplinary actions. Complainant argues that the

agency's failure to select him, despite these superior qualifications,

demonstrates both bias and pretext. In particular, complainant argues

that the selectee for position 5 was expelled from Bolivia because

of problems with the ambassador, whereas complainant was cleared of

wrong-doing. As to position 2, complainant argues that the agency chose

to promote the selectee, instead of laterally transferring complainant,

even though the selectee had no headquarters or inspection experience.

Complainant argues that there is a general perception that he has been

passed over in favor of less qualified candidates because of reprisal,

and because of his association with the misconduct of the Hispanic

managers in Bolivia.

Finally, complainant argues that the agency's general preferential

treatment of those who did not engage in the EEO process, in terms of

assigning them to their posts of preference, constitutes additional

evidence of the agency's bias, and goes to show that this bias is the

reason that complainant was not selected for the positions at issue.

Analysis and Findings

1. Dismissal of Untimely Claims

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Upon review, we find that complainant does not contend that he established

timely EEO Counselor contact as to the incidents of non-selection which

the agency found to be untimely. Instead, complainant argues that his

non-selection for all of the positions he identifies should be considered

timely under a continuing violation theory.

Here, we agree with the agency that the evidence demonstrates that

complainant suspected that his non-selection for the positions he

identifies was based on discrimination and/or retaliation at the time

they occurred. In this regard, we note that hiring, promotions, and

awards, are all considered �discrete actions,� and thus are not amenable

to analysis as a continuing violation. See National R.R. Passenger

Corp. v. Morgan, 122 S. Ct. 2061 (2002). Therefore, we find that the

agency properly found that only the six non-selection claims referenced

above could properly be included in the instant complaint, and that

the remainder of complainant's non-selection claims cannot be deemed

timely under a continuing violation theory. Accordingly, we find that

the agency properly dismissed these claims on the grounds of untimely

EEO Counselor contact, and we AFFIRM that determination.

2. Disparate treatment claims

To prevail in a disparate treatment claim, complainant must satisfy the

three-part evidentiary scheme fashioned by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish

a prima facie case by demonstrating that he was subjected to an adverse

employment action under circumstances that would support an inference of

discrimination. See Furnco Construction Co. v. Waters, 438 U.S. 567,576

(1978).

However, to ultimately prevail, complainant must prove, by a

preponderance of the evidence, that the agency's explanation is a

pretext for discrimination. See Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S.133 ( 2000); St. Mary's Honor Center v. Hicks, 506

U.S. 502,519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248,256 (1981). In non-selection cases, pretext may be found

where the complainant's qualifications are demonstrably superior to

the selectee's. See Bauer v. Bailar, 647 F.2d 1037,1048 (10th Cir. 1981).

Complainant argues that he is better qualified than all of the selectees

for the six positions at issue; however, we determine that he has failed

to present evidence that his qualifications were �plainly superior,� so

as to establish pretext. We note that an agency has broad discretion to

set selection policy and carry out personnel decisions, especially those

concerning the selection of management officials, and this authority

should not be second-guessed absent evidence of unlawful motivation.

See Vanek v. Department of the Treasury, EEOC Request No. 05940906

(January 16, 1997).

Although complainant argues that SO clearly harbored retaliatory

animus toward him, as evidenced by the number of non-selections

involved, and his purported hostility toward the settlement efforts

on complainant's prior complaint, we find that this conclusion is

based on mere speculation regarding SO's motivation in these matters.

Additionally, while complainant argues that all of SO's testimony must

be considered unreliable, and his proffered reasons deemed pretextual,

because of the inconsistent statements in his affidavits regarding his

knowledge of complainant's prior EEO activity, we disagree.

Specifically, we find that even though SO knew of complainant's prior EEO

activity, and changed his testimony in this regard, his primary reason

for refusing to select complainant, i.e., that complainant's current

supervisor related that he was not performing in a manner expected of

his rank and experience, is corroborated by one of complainant's former

supervisors. Review of the record reveals that during the selection

process for position 1, an agency official who supervised complainant

on a temporary assignment in Miami, also reported to the selection board

that complainant was not performing in a manner consistent with his rank

and experience. Moreover, we find that while complainant generally

claims that he historically receives high performance evaluations, he does

not specifically challenge the assessment of either supervisor, except to

argue that it is unfair to fault him for sulking about his Philadelphia

assignment since it was purportedly the result of discrimination.

Accordingly, even in finding that SO was aware of complainant's prior

EEO activity during the time at issue, we find that complainant fails to

present sufficient evidence to show that SO's testimony as to this reason

is untrue or a pretext for national origin discrimination or retaliation.

Additionally, we also find that SO's second proffered reason, that he

declined to support complainant for a transfer, given the short amount of

time he had served in Philadelphia, to be reasonable in terms of agency

administrative efficiency and expense, and we also find that this reason

is un-rebutted in the record. Although complainant contends that other

employees without EEO activity are generally given preferential treatment

in terms of being transferred as they desire, he fails to present evidence

to confirm this contention. Accordingly, we find that complainant fails

to present sufficient evidence to demonstrate that this reason is untrue

or a pretext for national origin discrimination or retaliation.

Therefore, for the reasons set forth above, we find that complainant

fails to show, by a preponderance of the evidence, that SO's proffered

reasons for failing to select him for complainant are a mere pretext

for discrimination/retaliation, and we AFFIRM the agency's finding of

no discrimination.

Conclusion

Accordingly, after a careful review of the record, including arguments

and evidence not specifically addressed in this decision, we AFFIRM the

agency's final decision in this case.

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

December 10, 2003

__________________

Date

1According to Commission records, this

complaint was transferred to an EEOC Administrative Judge (Hearing

No. 100-98-7514X) who rendered a summary judgement in favor of the agency

finding no discrimination. The agency adopted this decision in a final

action, which was affirmed on appeal. See Castillo v. Department of

Justice, EEOC Appeal No. 01991540 (March 17, 2000).

2According to the record, the selections at issue were all made by a

panel (Career Board) of agency officials, who obtained recommendations

as necessary, discussed the candidacy of those under consideration,

and voted. SO served as Chairman of this panel, and the selecting

official for positions that came before the panel.