01A21531
03-06-2003
Charles L. Kaes, Complainant, v. John Ashcroft, Attorney General, Department of Justice (United States Marshals Service), Agency.
Charles L. Kaes v. Department of Justice
01A21531
March 6, 2003
.
Charles L. Kaes,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice
(United States Marshals Service),
Agency.
Appeal No. 01A21531
Agency No. M01-0004
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 decision.
BACKGROUNG
The record reveals that during the relevant time, complainant was
employed as a Criminal Investigator, GS-1811-12, with the United
States Marshals Service (USMS), Southern District of Mississippi, at the
agency's sub-office in Biloxi, MS. Complainant sought EEO counseling and
subsequently filed a formal complaint on October 11, 2000, alleging that
he was discriminated against on the bases of race (Caucasian), sex (male),
and age (53) when the agency failed to pay the cost of his attendance
at the National Organization of Black Law Enforcement Executives (NOBLE)
Training Conference held July 9-13, 2000, in Biloxi, MS.
Complainant applied to attend the conference pursuant to an agency
national training conference schedule implemented as part of the agency's
Affirmative Employment Programs (AEP). After being denied approval to
attend the conference, complainant submitted a registration form and a
personal note stating that he would use his own funds and annual leave to
attend the conference. While the EEO office initially advised complainant
that the �district or division� would pay all costs, he was subsequently
advised that he would have to pay his own registration fee, but he would
be granted administrative leave to attend the conference. Complainant
decided not to attend the conference due to the high registration fee of
$500.<1> The Chief Deputy U.S. Marshal testified that there was simply
no money available in the budget for complainant to attend the conference.
The Administrative Officer (AO) likewise testified that she and two others
expressed an interest in attending the conference but they were told there
was no funding available. AO also testified that the only funds expended
for training had been for a very few mandatory management conferences.
In his complaint, complainant claimed that all of the national training
programs on the schedule were directed toward members of specific races
or ethnic groups, women, and persons with disabilities. Complainant
alleged that the agency �did not want a white male over 50 involved in
recruiting efforts at a Black oriented function�, and that he and all
other white male employees over 50 are adversely impacted by the absence
of activities geared to them in the national training conference schedule.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision through its Complaint
Adjudication Office (CAO).
In its FAD, the agency concluded that the agency had articulated a
legitimate, nondiscriminatory reason for not sending complainant to
the conference, i.e., there was no money available for the training,
and that complainant's race, sex, and age had no part in the agency's
decision to deny complainant's training request.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the investigation was incomplete
and he questions its accuracy, integrity, and trustworthiness.
ANALYSIS AND FINDINGS
Complainant has alleged a claim of disparate treatment which is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); and Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979) (requiring a showing that age was a determinative
factor, in the sense that "but for" age, complainant would not have
been subject to the adverse action at issue). Where the agency has
articulated a legitimate, nondiscriminatory reason for the 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. United States Postal Service Board
of Governors v. Aikens, 460 U.S. 711 , 713-714 (1983).
The agency articulated a legitimate, nondiscriminatory reason for its
action, i.e., there was no money available for the training, and while
complainant disagrees with the agency's contention, he has not shown
pretext. Therefore, we find that complainant has not met his burden to
prove by a preponderance of the evidence that the agency's reason for
its action was a pretext for discrimination. Although complainant
submitted that the agency's explanation that there was a lack of
funds was pretext for discrimination, the record reflects that three
African-American employees who were interested in attending the training
were also not funded. The agency also explained that when complainant
was advised that the �district or division� would pay all costs, what was
meant was that headquarters would not be paying any costs, and that the
district or division would have to pay any cost for attending training.
We agree that the complainant's race, sex, and age had no part in the
agency's decision to deny complainant's training request.
Concerning complainant's claim that all of the national training
programs on the schedule were directed toward members of specific races
or ethnic groups, women, and persons with disabilities, the Chief of the
Affirmative Employment Programs Section testified that any employee could
request to attend any conference or training, regardless of race, sex,
or age. While the record reflects that the national training conference
schedule was wholly directed toward affirmative employment programs,
this Commission has specifically held that "special emphasis programs
are open to all, and are not designed to deprive employees outside the
focus group of opportunities and are implemented by agencies pursuant
to specific authority." See Fairbrother v. Department of Defense,
EEOC Request No. 05910536 (August 16, 1991). Special emphasis programs
are designed to be implemented in harmony with an agency's "overriding
commitment to equal employment opportunity for all." Id.
Turning to complainant's concerns that the investigation of his complaint
was incomplete and lacked accuracy, integrity, and trustworthiness, we
note that the agency has a duty to develop an impartial and appropriate
factual record upon which to make findings on the claims raised by the
written complaint. An appropriate factual record is one that allows a
reasonable fact finder to draw conclusions as to whether discrimination
occurred. See 29 C.F.R. � 1614.108(a). A review of the file reveals that
the report contained sufficient information to decide the accepted matter.
We find that the agency conducted an investigation sufficient to allow
the Commission to make findings on the issues alleged. Therefore, the
Commission finds that complainant's contention as to the inadequacy of
the investigation is without merit.
CONCLUSIONS
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
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 6, 2003
Date
1 The fee was initially $450 but with a late filing it was $500.