01a54722
11-02-2005
Ezequiel E. Rodriguez, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Bureau of Customs and Border Protection), Agency.
Ezequiel E. Rodriguez v. Department of Homeland Security
01A54722
November 2, 2005
.
Ezequiel E. Rodriguez,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Bureau of Customs and Border Protection),
Agency.
Appeal No. 01A54722
Agency No. CBP 04-106C/04-4092
Hearing No. 360-2005-00105X
DECISION
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 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 order.
The record reveals that, during the relevant period, complainant was
employed as a GS-1801-11, Canine Enforcement Officer at the agency's Port
of Laredo in Texas. Complainant filed a formal EEO complaint on February
25, 2004, alleging that the agency discriminated against him on the basis
of age (44 years old; DOB: 10/19/59) when in December 2003, he was not
selected for the position of GS-1801-12, Supervisory Canine Enforcement
Officer advertised under Vacancy Announcement Number SOTEX/03-008DLK.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On April 21, 2005, the AJ issued a decision
without a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case of
age discrimination because the selectee (S1: 31 years old), not in
complainant's protected class, was selected for the subject position.
The AJ also concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. In particular, the AJ found
that the S1 had experience as a Supervisory Security Forces Canine
Officer since 1992. The AJ also found that S1's references rated him
higher than complainant's references. The AJ further concluded that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends, among other things, that S1's application was
not true or correct and was not complete. Complainant also contends
that the agency pre-selected S1 for the subject position. In response,
the agency restates the position it took in its FAD, and requests that
we affirm its final order.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case can
only be resolved by weighing conflicting evidence, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider a decision without a hearing
only upon a determination that the record has been adequately developed
for summary disposition.
The Administrative Judge concluded that, other than complainant's own
subjective belief that he was discriminated against, he did not present
sufficient evidence from which a reasonable fact-finder could conclude
that the non-selection was based on his age. The Administrative Judge
thus determined that a hearing was not required because there were no
genuine issues of material fact in dispute.
After a careful review of the record, the Commission finds that grant of
a decision without a hearing in the agency's favor was appropriate, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. In reaching this conclusion, we note
that the agency articulated several legitimate, nondiscriminatory reasons
for not selecting complainant. In particular, the uncontroverted evidence
shows that the selectee received better scores from his references.
The Commission also notes that, out of 20 prior selections, the selecting
officials chose candidates who were at least 40 years old. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that his protected class
was a motivating factor in the agency's decision not to select him.
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
November 2, 2005
__________________
Date