01a54440
11-07-2005
Jose V. Abano, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Jose V. Abano v. Department of Homeland Security
01A54440
November 7, 2005
.
Jose V. Abano,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A54440
Agency No. CBP#04-080C/04-4074
Hearing No. 360-2004-00214X
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. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Canine Enforcement Officer at the
agency's U.S. Customs and Border Protection facility, filed a formal EEO
complaint on January 30, 2004, alleging that the agency discriminated
against him on the bases of race (Asian) and national origin (Filipino)
when he was not selected for the position of Supervisory Canine
Enforcement Officer, GS-1801-12.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On March 8, 2005, the AJ issued a decision
without a hearing, finding no discrimination. 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 although complainant was
included among the best qualified, the selectee had superior supervisory
experience. The agency's final order dated April 7, 2005, implemented
the AJ's decision.
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.
We find that the agency has articulated a legitimate nondiscriminatory
reason for complainant's non-selection which complainant failed to
rebut. A review of the evidence in the record shows that complainant's
application was devoid of any type of supervisory experience, whereas,
the selectee's application indicates that he served as a Supervisory
Security Forces Officer/Canine Officer for the 311th Security Forces
Squadron, U.S. Air Force Reserve. In addition, the Director of Field
Operations states that although complainant had excellent experience as a
Canine Officer, the position was that of a Supervisor whose major duties
would involve assigning, overseeing, and evaluating work operations and
employees. The Director states that the selectee was better suited for
the position because of his level of supervisory experience. The Director
of Field Programs states that the selectee received more favorable
recommendations from his supervisors than did complainant. In addition,
the selectee had several years of prior supervisory canine experience
while assigned to the military; whereas, complainant did not have the
same level of supervisory experience. The Port Director indicated that
although complainant is qualified for the position, his application
package did not demonstrate any prior supervisory canine experience.
Regarding complainant's allegation of a conflict of interest, we find
that even if a conflict of interest where in fact present, complainant
has failed to show that it was as a result of his race or national origin.
Accordingly, the agency's final 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 7, 2005
__________________
Date