0120065338
09-10-2007
Santos Avila-Simeon, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
Santos Avila-Simeon,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120065338
Agency No. HS041279
DECISION
On September 21, 2006, complainant filed an appeal from the agency's
September 15, 2006, final decision concerning his equal employment
opportunity (EEO) complaint alleging 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.1
On October 12, 2001, complainant filed an EEO complaint alleging that
she was discriminated against on the bases of sex (male), parental status
(single) and in reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when on July 20, 2001, she was terminated
from her position as a Contact Representative, GS-962-5 at the agency's
Immigration and Naturalization Service, Eastern Telephone Center (ETC),
in New York.2
The record reflects that in her former position as an Administrative
Clerk, complainant was supervised by the Acting Administrative
Officer (AAO) until May 20, 2001. In 2000, she was promoted to a
Contract Representative position, and learned in October of 2000
that her daughter had special educational needs. At the same time,
complainant was removed from her position as a Contact Representative
for administrative technicalities. Complainant subsequently reapplied
for the position in January 2001 and was reinstated in early May of 2001,
subject to a one-year probationary period. From November 2000 to April of
2001, before she was reinstated to the Contact Representative position,
complainant used leave time to attend sessions regarding her daughter's
educational needs.
Complainant interviewed for the position on April 13, 2001 and began
duty in May of 2001. Complainant was told by the AAO that she had
been scheduled to attend mandatory training starting on July 10,
2001. The training was out-of-town and was to last about one month.
Complainant informed the AAO that she would not be able to attend the
training due to her daughter's therapy. Complainant then informed the
Assistant Supervisory Contact Representative (ASCR) that she would not
be able to attend the training, and she was told to find a substitute
at her daughter's therapy sessions so she could attend the training.
However, complainant was unable to find a replacement; the ASCR told
complainant there would be a problem with the regional office about her
request to postpone training. In June of 2001, complainant resubmitted
her request to postpone training and later submitted documentation about
her daughter's medical and educational needs.
On July 20, 2001, the agency issued complainant a termination letter,
which stated that complainant was informed of her requirement to complete
training and she agreed to enroll in the next available training course.
The letter stated that complainant made no attempt to relieve herself
of her prior commitment and it was in the best interest of the agency
to terminate her employment during her probationary period.
Believing she was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal complaint. At the
conclusion of the investigation, complainant was provided with a copy
of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision (FAD) pursuant
to 29 C.F.R. � 1614.110(b) concluding that complainant failed to prove
that he was subjected to discrimination as alleged.
Initially, the FAD noted that parental status is not a basis of
discrimination which is covered under Title VII.3 The FAD did
not consider whether complainant established a prima facie case of
discrimination on any basis. However, the FAD proceeded to find that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the FAD noted that the AAO told complainant about the
July 2001 mandatory training session in June of 2001; the AAO stated
that complainant did not object to the training at the time and she
was scheduled. The FAD also noted that the ASCR stated he learned about
complainant's request for postponement of the training in June of 2001 and
that she tried to find a replacement to take her daughter for therapy.
FAD at 3. The ASCR stated that he learned complainant was unable to
find a replacement to attend therapy with her daughter and requested
documentation about her daughter's situation. The ASCR stated that
complainant responded that she preferred to keep the matter private and
did not provide the requested documentation about the therapy schedule.
The FAD noted that the ASCR also stated that had complainant submitted
the documentation before the training class started, she may have been
able to accommodate her. However, the FAD found that the documentation
regarding the therapy schedule was not submitted until July 10 or 11,
2001, after the training had begun. The FAD also noted that the Director,
National Customer Service Center ("the Director") signed complainant's
letter of termination; he stated that the training at issue was not
offered frequently, so it was necessary that employees attend when they
are scheduled. FAD at 4. The Director also stated that he was unaware
of training being scheduled for probationary period employees in the past.
He also stated that complainant was informed during the interview process
that mandatory training would likely occur in July of 2001.
Addressing the issue of pretext, the FAD found that while the AAO and
the Director did not recall altering training schedules, the ASCR stated
that had complainant made her aware of her circumstances it was possible
that the training could have been delayed. In addition, the Director
stated that probationary employees who did not receive training could
take it after they became permanent employees. However, the FAD noted
that the record demonstrated by refusing to disclose that she could
not attend the training and not detailing the reasons why she could not
attend when initially asked, complainant failed to give management the
opportunity to consider her circumstances in a timely manner and "act in
an informed manner on her request." FAD at 5. As such, the FAD found
that complainant failed to meet her burden in showing that management's
reasons for terminating her employment were more likely than not a pretext
for discrimination. Complainant made arguments in support of her appeal,
and the agency has not responded to complainant's appeal.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Where the agency has articulated a legitimate, nondiscriminatory
reason for the personnel action at issue, the factual inquiry
can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. See U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of
Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
After a consideration of the record, the Commission finds that the agency
articulated legitimate, non-discriminatory reasons for its actions.
In so finding, we note the testimony of agency management, including the
Director, the ASCR and the AAO, indicating that complainant initially
did not indicate that she would not be able to attend the training
session at issue. The statement of the ASCR indicates that the mandatory
training might have been delayed. However, the ASCR also stated that had
complainant submitted the requested documentation about her daughter's
therapy schedule in a timely manner before the training started in July of
2001, the agency may have been able to accommodate complainant. However,
the evidence indicates that the requested documentation regarding the
therapy schedule was not submitted until July 10 or 11, 2001, until the
time the training session began. As such, given the date complainant
submitted the requested documentation, there was no possibility that
complainant's participation in the mandatory training could be delayed
and she was subsequently terminated due to her failure to attend the
training. After consideration of the record, we find that complainant
has not shown that the agency's articulated reasons, as discussed above,
were pretextual in nature. As such, 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
____9/10/07______________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 This complainant was initially filed against the Department of
Justice. However, on March 1, 2003, the Immigration and Naturalization
Service became part of the Department of Homeland Security (DHS) and
jurisdiction for the instant case now rests with DHS.
3 While the FAD noted that the agency has included parental status as
a prohibited basis for discrimination in its own internal regulations,
we note that parental status is not covered by the Federal regulations
that this Commission enforces. See 29 C.F.R. � 1614.101. FAD at 2.
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0120065338
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120065338