01A22426_r
12-10-2003
James W. Castillo, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
James W. Castillo v. Department of Justice
01A22426
December 10, 2003
.
James W. Castillo,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A22426
Agency No. D-98-3470
Hearing No. 100-99-7760X
DECISION
Complainant filed a timely appeal from a final agency decision concerning
his complaint of unlawful employment discrimination brought pursuant
to Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq.
The record reveals that during the relevant time, complainant was employed
by the agency as a Assistant Special Agent-in-Charge at its Philadelphia
Field Division (Drug Enforcement Administration). Complainant sought
EEO counseling and subsequently filed a formal complaint on February 2,
1998, claiming discrimination on the bases of national origin (Hispanic)
and retaliation (for prior protected EEO activity) concerning his
non-selection for ten positions.
Complainant claimed that he was transferred against his wishes to
Philadelphia from a station in Bolivia, due to an incident of manager
misconduct at the Bolivia station, notwithstanding the fact that the
agency cleared him of wrong-doing regarding this matter. Complainant
indicated that the transfer to Philadelphia is the subject of another
EEO complaint (D-96-3393).<1> Complainant further indicated that
since this transfer to Philadelphia, he applied for or was otherwise
eligible for consideration for numerous other positions, but was not
selected. Complainant claimed that because he assisted co-workers with
EEO matters while in Bolivia, and filed his own EEO complaint concerning
his transfer to Philadelphia, his repeated non-selection for so many
positions for which he was highly qualified, was motivated by retaliation.
Complainant asserted that he wrote a letter to the Attorney General,
expressing his belief that his transfer to Philadelphia, and the agency's
refusal to select him for other positions, was retaliatory. Complainant
requested a fact-finding investigation. Complainant further claimed that
because the managers involved in the misconduct in Bolivia were Hispanic,
his non-selection could be motivated by national origin animus as well.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge, but subsequently withdrew this
request, and requested that the agency issue a final decision. During the
investigation, complainant identified seventeen additional positions
for which he was not selected, claiming national origin discrimination
and retaliation regarding these positions as well.
In its final decision, the agency determined that as an initial matter,
it was necessary to identify which of complainant's claims could properly
be included in his complaint. The agency found that in his previous
complaint (D-96-3393), filed on September 24, 1996, complainant claimed
he was not selected for approximately twenty positions, from September
1, 1994 to May 1997. The agency noted that seven of the non-selections
identified in the current complaint occurred before the date of the
prior complaint, and the agency otherwise challenged all but five of
complainant's non-selection claims as untimely. Specifically, the agency
found that complainant initiated EEO Counselor contact on December 17,
1997, such that only one non-selection, in November 1997, under vacancy
number CMB-98-311, could be considered timely.
Next, the agency noted that for the period of July 1997 to November
1997, complainant identified five additional incidents of non-selection,
under the following vacancy numbers: CMB-97-339; CMB-97-344; CMB-97-349;
CMB-97-354; CMB-97-362. The agency found that the first four of these
vacancies occurred in July 1997, and would be considered timely due to
complainant's letter to the Attorney General in August 1997. However,
concerning complainant's non-selection under vacancy number CMB-97-362,
the agency determined that this occurred in September 1997, after the
Attorney General letter, and that it was also untimely with reference
to his December 17, 1997 EEO Counselor contact. Nonetheless, because
complainant's non-selection under vacancy number CMB-97-362, had already
been investigated, the agency determined that it would also include
this claim in the complaint.
In addressing whether additional claims of non-selection could be
included in the complaint under the continuing violation theory, the
agency determined that even though the non-selections occurring from 1995
to 1998, potentially involved interrelated incidents of discrimination,
record evidence demonstrates that complainant suspected discrimination
at the time of his non-selection for each position. In particular, the
agency sets forth portions of complainant's deposition, to show that he
suspected discrimination regarding forty-five non-selections, at the time
they occurred, but decided not to pursue each one so as not to over-burden
the system. The agency further found that because of his familiarity with
the EEO process, complainant was aware of the time limit, and the need
to timely initiate EEO counseling as to each incident of non-selection.
In concluding, the agency determined that the instant complaint consisted
of complainant's claim of discrimination concerning his non-selection
for the following positions:
CMB-97-339, Assistant Country Attache, La Paz (July 1997);
CMB-97-349, Assistant Country Attache, Bogota (July 1997);
CMB-97-339, ASAC, Miami (July 1997);
CMB-97-354, ASCA, Ft. Lauderdale (July 1997);
CMB-97-362, SouthCom, Miami (September 1997); and
CMB-98-311, Senior Inspector, OPR, Miami (November 1997).
Next, in addressing the merits of the complaint, the agency noted
complainant's contention that he was better qualified than each of the
selectees for the above referenced positions, and acknowledged that this
could demonstrate a pattern of discrimination. However, the agency found
that because complainant failed to submit evidence to demonstrate that he
was significantly more qualified than the selectees, so as to raise an
inference of discrimination, or to show that the agency's non-selection
decisions were otherwise motivated by animus, he ultimately failed to
prevail in his claim of discrimination.
In particular, the agency found that complainant failed to establish a
prima facie case of national origin discrimination as to positions 1,
2, and 6, because all three selectees were Hispanic. As to all six
positions, the agency determined that the involved agency officials
articulated legitimate, non-discriminatory reasons for not selecting
complainant, especially noting the testimony of the selecting official
(SO) for these positions.<2> Specifically, the agency asserted that SO
testified that unless there was a clear need to do so, he would not move
complainant from Philadelphia because of the short time (less than a year)
that he had been in that location. Additionally, the agency indicated
that SO testified that he placed much emphasis on the assessment of
complainant's current supervisor in Philadelphia, who indicated that
complainant was not performing in a manner expected of his position and
experience, and that complainant continued to �sulk� about his assignment
to Philadelphia. The agency indicated that SO attested that he would not
consider complainant for any position until his performance improved, and
he demonstrated some initiative, and that he did not support complainant
for the positions at issue, or any of the other positions referenced by
complainant, for these reasons.
The agency then determined that complainant failed to present any evidence
that his national origin or prior EEO activity were considered by SO,
or any of the other selecting officials involved in the selection process
for the positions at issue. The agency also found that complainant failed
to show that the articulated reasons were a pretext for discrimination,
presenting no more than unsubstantiated allegations in this regard.
On appeal, complainant argues that the agency improperly considered only
six of the non-selections he identified, arguing that they all should
be considered as a continuing violation. Specifically, complainant
asserts that the agency concedes that five of the claims are timely,
and that the remaining non-selection claims are part of a related series
of discriminatory acts evidencing the agency's discriminatory practice of
not selecting complainant. Moreover, complainant avers that even if all of
the non-selections cannot be deemed timely under a continuing violation
theory, then the agency's recurring failure to select complainant must
be viewed as persuasive evidence of the agency's bias against complainant.
In addressing the agency's merits determination, complainant argues
that the agency's proffered reasons for not selecting complainant are
a pretext for discrimination. Specifically, complainant argues that
SO's testimony is not credible, noting that he executed a subsequent
affidavit to �clarify� certain inaccuracies in his first affidavit,
thereby making inconsistent statements, rendering his testimony
unreliable. In particular, complainant argues that SO definitely knew of
his prior EEO activity during the time at issue, asserting that they had
a confrontation about settlement terms to resolve his prior complaint,
and yet SO denied his knowledge in his first affidavit. However, in the
second affidavit, complainant notes that SO admits to now recollecting
that he knew of complainant's EEO activity, but is vague on when he
knew it, so as to suggest that he might not have known until after the
selections at issue were made.
Additionally, complainant argues that the SO's reaction in a hostile
manner to the attempt to settle complainant's prior complaint is further
evidence of SO's bias against the EEO process. Complainant argues
that SO's bias is further demonstrated in that he viewed complainant's
unhappiness with his Philadelphia assignment as a reason not to select
him, ignoring the fact that he was transferred to an unwanted post due
to discriminatory and retaliatory animus.
Furthermore, complainant argues that his qualifications far exceeded those
of the selectees for the positions at issue. In this regard, complainant
asserts that he has 28 years of experience in a wide variety of positions,
served in foreign posts, and worked with military personnel. Complainant
avers that he consistently received the highest performance ratings, and
has never received any disciplinary actions. Complainant argues that the
agency's failure to select him, despite these superior qualifications,
demonstrates both bias and pretext. In particular, complainant argues
that the selectee for position 5 was expelled from Bolivia because
of problems with the ambassador, whereas complainant was cleared of
wrong-doing. As to position 2, complainant argues that the agency chose
to promote the selectee, instead of laterally transferring complainant,
even though the selectee had no headquarters or inspection experience.
Complainant argues that there is a general perception that he has been
passed over in favor of less qualified candidates because of reprisal,
and because of his association with the misconduct of the Hispanic
managers in Bolivia.
Finally, complainant argues that the agency's general preferential
treatment of those who did not engage in the EEO process, in terms of
assigning them to their posts of preference, constitutes additional
evidence of the agency's bias, and goes to show that this bias is the
reason that complainant was not selected for the positions at issue.
Analysis and Findings
1. Dismissal of Untimely Claims
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Upon review, we find that complainant does not contend that he established
timely EEO Counselor contact as to the incidents of non-selection which
the agency found to be untimely. Instead, complainant argues that his
non-selection for all of the positions he identifies should be considered
timely under a continuing violation theory.
Here, we agree with the agency that the evidence demonstrates that
complainant suspected that his non-selection for the positions he
identifies was based on discrimination and/or retaliation at the time
they occurred. In this regard, we note that hiring, promotions, and
awards, are all considered �discrete actions,� and thus are not amenable
to analysis as a continuing violation. See National R.R. Passenger
Corp. v. Morgan, 122 S. Ct. 2061 (2002). Therefore, we find that the
agency properly found that only the six non-selection claims referenced
above could properly be included in the instant complaint, and that
the remainder of complainant's non-selection claims cannot be deemed
timely under a continuing violation theory. Accordingly, we find that
the agency properly dismissed these claims on the grounds of untimely
EEO Counselor contact, and we AFFIRM that determination.
2. Disparate treatment claims
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish
a prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference of
discrimination. See Furnco Construction Co. v. Waters, 438 U.S. 567,576
(1978).
However, to ultimately prevail, complainant must prove, by a
preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S.133 ( 2000); St. Mary's Honor Center v. Hicks, 506
U.S. 502,519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248,256 (1981). In non-selection cases, pretext may be found
where the complainant's qualifications are demonstrably superior to
the selectee's. See Bauer v. Bailar, 647 F.2d 1037,1048 (10th Cir. 1981).
Complainant argues that he is better qualified than all of the selectees
for the six positions at issue; however, we determine that he has failed
to present evidence that his qualifications were �plainly superior,� so
as to establish pretext. We note that an agency has broad discretion to
set selection policy and carry out personnel decisions, especially those
concerning the selection of management officials, and this authority
should not be second-guessed absent evidence of unlawful motivation.
See Vanek v. Department of the Treasury, EEOC Request No. 05940906
(January 16, 1997).
Although complainant argues that SO clearly harbored retaliatory
animus toward him, as evidenced by the number of non-selections
involved, and his purported hostility toward the settlement efforts
on complainant's prior complaint, we find that this conclusion is
based on mere speculation regarding SO's motivation in these matters.
Additionally, while complainant argues that all of SO's testimony must
be considered unreliable, and his proffered reasons deemed pretextual,
because of the inconsistent statements in his affidavits regarding his
knowledge of complainant's prior EEO activity, we disagree.
Specifically, we find that even though SO knew of complainant's prior EEO
activity, and changed his testimony in this regard, his primary reason
for refusing to select complainant, i.e., that complainant's current
supervisor related that he was not performing in a manner expected of
his rank and experience, is corroborated by one of complainant's former
supervisors. Review of the record reveals that during the selection
process for position 1, an agency official who supervised complainant
on a temporary assignment in Miami, also reported to the selection board
that complainant was not performing in a manner consistent with his rank
and experience. Moreover, we find that while complainant generally
claims that he historically receives high performance evaluations, he does
not specifically challenge the assessment of either supervisor, except to
argue that it is unfair to fault him for sulking about his Philadelphia
assignment since it was purportedly the result of discrimination.
Accordingly, even in finding that SO was aware of complainant's prior
EEO activity during the time at issue, we find that complainant fails to
present sufficient evidence to show that SO's testimony as to this reason
is untrue or a pretext for national origin discrimination or retaliation.
Additionally, we also find that SO's second proffered reason, that he
declined to support complainant for a transfer, given the short amount of
time he had served in Philadelphia, to be reasonable in terms of agency
administrative efficiency and expense, and we also find that this reason
is un-rebutted in the record. Although complainant contends that other
employees without EEO activity are generally given preferential treatment
in terms of being transferred as they desire, he fails to present evidence
to confirm this contention. Accordingly, we find that complainant fails
to present sufficient evidence to demonstrate that this reason is untrue
or a pretext for national origin discrimination or retaliation.
Therefore, for the reasons set forth above, we find that complainant
fails to show, by a preponderance of the evidence, that SO's proffered
reasons for failing to select him for complainant are a mere pretext
for discrimination/retaliation, and we AFFIRM the agency's finding of
no discrimination.
Conclusion
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision in this case.
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
December 10, 2003
__________________
Date
1According to Commission records, this
complaint was transferred to an EEOC Administrative Judge (Hearing
No. 100-98-7514X) who rendered a summary judgement in favor of the agency
finding no discrimination. The agency adopted this decision in a final
action, which was affirmed on appeal. See Castillo v. Department of
Justice, EEOC Appeal No. 01991540 (March 17, 2000).
2According to the record, the selections at issue were all made by a
panel (Career Board) of agency officials, who obtained recommendations
as necessary, discussed the candidacy of those under consideration,
and voted. SO served as Chairman of this panel, and the selecting
official for positions that came before the panel.