01A11230
07-16-2002
Servando Alfonso, Jr., Complainant, v. John Ashcroft, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Servando Alfonso, Jr. v. Department of Justice
01A11230
July 16, 2002
.
Servando Alfonso, Jr.,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice
(Immigration and Naturalization Service),
Agency.
Appeal No. 01A11230
Agency No. I-98-C051
Hearing No. 360-99-8717X
DECISION
INTRODUCTION
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a Border Patrol Agent, GS-1816-9,
at the agency's Fort Hancock Station, TX facility, filed a formal EEO
complaint on May 23, 1998, alleging that the agency had discriminated
against him on the basis of national origin (Cuban) when he was singled
out for harsh treatment by his supervisors and co-workers because he
was the only Cuban at the station. Further, complainant alleged that
his supervisors had scrutinized his work, had tried to catch him making
mistakes, and had disciplined him more severely than his co-workers
under similar circumstances.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that the agency's explanation for its actions was
more credible than complainant's interpretation of the same events.
Simply put, the AJ did not find complainant's testimony to be
particularly credible. Also, the AJ concluded that for legitimate,
nondiscriminatory reasons, the agency found fault with complainant's
handling of certain matters and consequently, had subjected him to
higher scrutiny, accountability, and even discipline for such actions.
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
complainant had not produced sufficient evidence as to pretext to carry
the burden of persuasion on his claims.
The agency's final order implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant claims that the AJ erroneously denied him the
opportunity to testify on redirect examination, thereby preventing him
from offering additional testimony to rehabilitate his credibility,
and to rebut testimony solicited on his cross-examination. In response,
the agency states that the AJ has the authority to regulate the conduct
of a hearing, and requests that we affirm its final order.
ANALYSIS AND FINDINGS
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.
The hearing was held on May 16, 17, and 19, 2000. Ten witnesses testified
at the hearing. Complainant testified on direct for approximately 70
pages and was cross-examined for approximately 150 pages. Complainant
testified last, and at the conclusion of complainant's cross-examination,
the AJ stated that she believed that would conclude the questioning
process, and stated, as she previously had indicated, that she did
not need redirect or re-cross examination of complainant, as it had
seemed like everything had been gone through. When complainant's
representative requested the opportunity to have redirect examination
of complainant because of credibility concerns, he submitted that he
might be able do it in his closing statement. During his closing,
complainant's representative pointed out matters in the record which
supported complainant's credibility.
Regarding complainant's contention on appeal that the AJ's credibility
determinations were inappropriate because complainant's ability to
rehabilitate his credibility was truncated, the Commission notes that
an EEOC AJ has broad discretion in the conduct of a hearing, including
the amount of time expended examining witnesses. 29 C.F.R. �1614.109;
Blakemore v. Department of the Army, EEOC Appeal No. 01972875 (March
17, 1999). Our review in this case does not indicate a basis upon which
to reject the credibility determinations or the AJ's decision finding
no discrimination. In general, the Commission will not disturb the
credibility determinations of an AJ when, as here, such determinations
are based on the AJ's observations of the demeanor of the witnesses.
Esquer v. United States Postal Service, EEOC Request No. 05960096
(September 6, 1996); Willis v. Department of the Treasury, EEOC Request
No. 05900589 (July 26, 1990). Our review does not reveal any evidence
that the AJ exceeded her authority or abused her discretion in the
conduct of the hearing. We find no abuse of the AJ's discretion in
limiting complainant's testimony to direct and cross-examination.
Finally, while complainant did not make a proffer about what he would
have testified to during redirect examination, he did discuss issues
concerning complainant's credibility in his closing statement.
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 evidence that any of the agency's actions
were motivated by discriminatory animus toward complainant's national
origin, or race.<1> We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, 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
_July 16, 2002
Date
1 At trial complainant testified that, in part, he was discriminated
against because of his race, Black.