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