Sandra F. Martinez, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMar 9, 2005
01a51183 (E.E.O.C. Mar. 9, 2005)

01a51183

03-09-2005

Sandra F. Martinez, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Sandra F. Martinez v. Department of Homeland Security

01A51183

March 9, 2005

.

Sandra F. Martinez,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01A51183

Agency No. I-98-W058 & I-00-W111

DECISION

Complainant appeals to the Commission from the agency's November 1,

2004 decision finding no discrimination. In the first complaint (Agency

No. I-98-W058), complainant alleges discrimination on the basis of age

(date of birth: May 17, 1948) when, on January 4, 1998, complainant

learned that she had not been selected for the position of Supervisory

Detention and Deportation Officer (SDDO), as advertised under Vacancy

Announcement Number MSP II 97-LOS-343. In the second complaint (Agency

No. I-00-W111), complainant alleges discrimination on the basis of age

(date of birth: May 17, 1948) when, on December 28, 1999, complainant

learned that she had not been selected for the position of Supervisory

Deportation Officer (SDO), as advertised under Vacancy Announcement

Number MSP II 99-LOS-445.

We find that the agency has articulated a legitimate, nondiscriminatory

reason for the nonselections. Regarding the SDDO position, the Assistant

District Director (ADD) reported that the selectee �expressed an aura of

confidence and motivation and was well spoken throughout the interview,"

whereas complainant did not do as well. A Supervisory Detention and

Deportation Officer (SSDO1) stated that complainant �failed to display

confidence in her abilities or indicate motivation by demonstrating

her accomplishments." The SSDO1 indicated that complainant also failed

to note any significant tasks or collateral duty assignments she had

undertaken to enhance either her skills or the agency's objectives.

On the other hand, the SDDO1 said that the selectee discussed a number of

varying assignments in great detail. It was also noted that the selectee

discussed his collateral duties and his experience during a six-month

detail working with the acting Chief Detention Enforcement Officer (CDEO)

at an INS detention facility. The Officer In Charge (OIC) stated that the

selectee did the best based upon the panel members' Oral Interview Rating

Charts, evaluations and general discussions. The panelists' individual

rating charts and notes reflect complainant's less than satisfactory

interview performance. All of the panelists remarked on complainant's

twenty years of experience, but many raised her deficiencies as well,

such as her lack of knowledge of personnel and labor relations issues,

and her lack of initiative and creativity.

As to the SDO position, the recommending panel similarly commented

on complainant's poor performance during the interview. The panelists

primarily ranked complainant as "successful" on the Oral Interview Rating

Charts, whereas the selectee received "very good" and "excellent" ratings.

The Section Chief remarked that complainant did not respond correctly

or with much thought to many of the interview questions. The ADD stated

that complainant could not name any challenges that faced Detention and

Deportation, stating that she would "go along with what her supervisors

tell her [and she] doesn't really know what [would] happen [within the

organization]." The ADD further described complainant as being without

"originality of thought" and without "the ability to think on her feet."

Another Officer in Charge (OIC2) summarized complainant's performance by

stating that complainant appeared to be nervous and interviewed poorly.

OIC2 noted that complainant failed to answer many of the questions the

panelists asked and, when she did answer, she gave short replies without

any elaboration.

In contrast, the panelists' notes regarding the SDO selectee were

extremely positive. The Section Chief's descriptions of some of the

selectee's responses were that he had �outstanding answer[s]" and was

"absolutely right on." The Section Chief said that overall the selectee

did an outstanding job in responding to the panelists' questions.

The ADD noted the selectee's suggestions to start a prosecutions unit,

to seize the property of felons who re-enter the country after removal,

and to issue a quarterly employee newsletter to ensure the uniformity of

decisions. The ADD remarked on the selectee's "many good ideas about the

program and... [his] clearly defined vision of his role in implementing

them." The OIC2 wrote on her evaluation that she was impressed by the

selectee and that he did a good job of thoroughly answering the questions.

Complainant has failed to rebut the agency's articulated legitimate,

nondiscriminatory reasons for the nonselections. Furthermore, complainant

has failed to show that his qualifications for the SDDO or SDO positions

were plainly superior to the selectees' qualifications or that the

agency's action was motivated by discrimination. Complainant failed to

show, by a preponderance of the evidence, that she was discriminated on

the basis of age.

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

March 9, 2005

__________________

Date