01A15144
11-07-2002
Joe A. Montemayor, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Joe A. Montemayor v. Department of Justice (Immigration and Naturalization
Service)
01A15144
November 7, 2002
.
Joe A. Montemayor,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01A15144
Agency Nos. I-97-0213, I-98-C077
Hearing Nos. 330-AO-8236X, 360-99-8684X
DECISION
Complainant timely initiated an appeal from the agency's final order
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., 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. For the following reasons, the Commission AFFIRMS the agency's
final order.
The record reveals that, during the relevant period, complainant was
employed as a GS-1801-12, Deportation Officer at the agency's Houston
District Office in Texas. Complainant filed formal EEO complaints
on August 19, 1997, and July 17, 1998, alleging that the agency had
discriminated against him on the bases of race (Hispanic), age (DOB:
4/22/55), and reprisal for prior EEO activity when:
(1) on May 23, 1997, he was not selected for the position of GS-1801-13,
Deputy Assistant Regional Director (Detention and Deportation Officer)
in Dallas, Texas, advertised under Vacancy Announcement Number ACD MSP
II 97-074 and
on February 18, 1998, he was not selected for the position of
GS-1801-13, Institutional Hearings Program Director (Supervisory
Detention and Deportation Officer) in Pecos, Texas, advertised under
Vacancy Announcement Number ACD MSP 96-339.
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 consolidated the two complaints.
Following a hearing, the AJ issued a decision finding no discrimination.
In regard to the Detention and Deportation Officer position at the
Central Regional Office, the AJ concluded that complainant established
a prima facie case of race and age discrimination. Specifically, the
AJ found that complainant is a member of protected classes by virtue of
his national origin and date of birth. Complainant applied and was
certified as best qualified for one of the vacant positions. Of the
three candidates that were selected, all were Caucasian and at least
one was younger than 40 years old.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that, unlike
the selectees, complainant had neither demonstrated maturation as an
officer nor clearly displayed management skills. The AJ also noted that
complainant had been named in a nationwide class action lawsuit against
the agency challenging conditions of detention.
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. In reaching this conclusion, the AJ found that the
only evidence complainant presented to show pretext was his subjective
feeling that race and/or age was a factor in his non-selection.
The AJ also concluded that complainant established a prima facie case
reprisal discrimination. As noted above, the AJ found that the agency
articulated legitimate, nondiscriminatory reasons for not selecting
complainant. In an attempt to show pretext, complainant testified about
two union-related conflicts that he had with the Assistant Regional
Director (ARD: White female). The AJ found that because these incidents
related to complainant's union activities, Title VII was not implicated.
In regard to the Institutional Hearing Officer's position in Pecos, Texas,
the AJ concluded that complainant failed to establish a prima facie
case of reprisal discrimination because the conduct that he complained
about was related to personality conflicts, grudges, and union activity.
The AJ did conclude, however, that complainant established a prima facie
case of age discrimination because he applied, and was qualified, and
the selectee was 31 years old.
The AJ further concluded that the agency articulate legitimate,
nondiscriminatory reasons for its actions. The AJ found that the
selectee was chosen because of his relevant work experience, writing
ability, motivational skills and leadership potential. The AJ found
that complainant failed to show that the agency's reasons were a pretext
for discriminatory animus and/or retaliatory motive. In particular,
the AJ noted that any retaliation directed toward complainant was the
result of his union activity.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends, among other things, that the AJ erred when he
did not grant a continuance after complainant's representative became
ill the night before the hearing. As a result, complainant contends,
he was represented by individuals who were ill-prepared and possessed
limited experience. In response, the agency restates the position it
took in its FAD, and requests that we affirm its final order.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Applying the standards set forth in McDonnell Douglas, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979) (requiring a
showing that age was a determinative factor, in the sense that "but for"
age, complainant would not have been subject to the adverse action at
issue); and, Hochstadt v. Worcestor Foundation for Experimental Biology,
Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the Commission agrees
with the agency that the non-selections were not based on discriminatory
animus and/or retaliatory motive. In reaching this conclusion, we note
that the record establishes that complainant was determined to be a best
qualified eligible for the Detention and Deportation Officer position
and was placed on the Selection Certificate with six other applicants.
The selecting official (SO1: White male) sought the aid of ARD to assist
him in reviewing the applications and determining who were the best
qualified to serve in the vacant positions.
The record evidence shows that the agency selected three individuals
(CW1: White male, DOB: 5/24/69; CW2: White male, DOB: 10/29/48;
and CW3: White male, DOB: 8/4/52) to fill the vacant positions.
The record establishes that CW1 was selected because he had significant
training and experience in business, business management, accounting
and statistics. CW1 had also served as an immigration examiner for five
years and possessed full knowledge of the benefits and programs of the
Immigration and Naturalization Service (INS). CW2 was selected because
he had served in several programs with the INS, was an excellent writer,
and had experience with labor and management relations. Lastly, CW3 was
chosen because he had been an INS inspector and deportation officer.
CW3 also had been an investigator in juvenile welfare and the agency
believed that he would create a good juvenile program.
In contrast, SO1 and ARD decided not to select complainant because he had
not demonstrated maturation as an officer nor displayed management skills.
The record also reflects that complainant had been a case manager and
was one of the persons against whom allegations were made in a nationwide
class action lawsuit against the agency.
In regard to the Institutional Hearing Officer position, the record
establishes that complainant was determined to be a best qualified
eligible and was placed on the Selection Certificate with four other
applicants. The selecting official (SO2: Hispanic male) sought the
aid of the Assistant District Director for Detention and Deportation,
and the Assistant District Director for Investigations to assist him in
reviewing the applications and determining who were the best qualified
to serve in the vacant positions.
All three rated the selectee (CW2: Hispanic male, 31 years old) as the
best qualified to fill the position and selected him in February 1997.
The record reflects that CW2 was selected because he had a good background
in investigations and deportation and was a good writer. The record
also reflects that CW2 was seen as a motivator, a leader, and someone
that initiated innovative ideas. The record further reflects that CW2
had been successful as an immigrations and adjudications officer.
Based on the foregoing, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The burden now shifts
to complainant to show that the proffered reasons were a pretext for
discriminatory animus and/or retaliatory motive. In a non-selection
case, pretext may be demonstrated in a number of ways, including a
showing that complainant's qualifications are observably superior to
those of the selectee(s). Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). However, an employer has the discretion to choose among
equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981). In the instant case, we find that complainant has
not presented sufficient evidence that his qualifications were �observably
superior� to the individuals selected. Although complainant contends that
ARD retaliated against him, the record does not support this contention.
In point of fact, any adverse action was more than likely based on the
fact that ARD was disciplined as a result of complainant's written
statements to the union about her behavior during an argument with
an employee. Even if this is true, this is not the type of conduct
protected by Title VII.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and 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 sufficient evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's race and/or age.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions, the
agency's response, and arguments and evidence not specifically addressed
in this decision, we AFFIRM the agency's final order.
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 7, 2002
__________________
Date