Jesus Mendoza, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 8, 2000
01a00914 (E.E.O.C. Mar. 8, 2000)

01a00914

03-08-2000

Jesus Mendoza, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Jesus Mendoza, )

Complainant, )

)

v. ) Appeal No. 01A00914

) Agency No. I-95-6782

Janet Reno, ) Hearing No. 360-98-8568X

Attorney General, )

Department of Justice, )

Agency. )

_______________________________ )

DECISION

The Commission finds that the agency's September 21, 1999 decision

finding that the agency did not discriminate against complainant based

on complainant's sex (male), age (over 40), and in retaliation for prior

EEO activity was proper.<1>

Complainant requested a hearing before an EEOC Administrative Judge.

An administrative judge issued a decision dated July 21, 1999 after

holding a hearing. The administrative judge defined the complaint as

alleging that complainant was discriminated against on the bases of sex,

age, and retaliation, when in October 1995, a younger female (Employee A)

was placed into the position of Acting Supervisory Immigration Examiner.

The Commission finds that the administrative judge correctly defined

the complaint. The Commission notes that the agency, in its acceptance

letter of the complaint, framed the complaint as concerning the same

issue. There is no indication that complainant challenged the agency's

framing of the complaint during the investigation.

The administrative judge found that the decision to place Employee

A into the position of Acting Supervisor was made by the Assistant

District Director of Examinations. The administrative judge found

that the Assistant District Director attempted to treat complainant and

his coworkers, who all held the same position of District Adjudication

Officer, equally. The administrative judge found that testimony from

complainant's coworkers showed that the Assistant District Director

rotated the District Adjudication Officers into the Acting Supervisor

position in 30 day details.

Although complainant argued that he should have been Acting Supervisor

because of his seniority, the Assistant District Director testified

that because all District Adjudication Officers were the same grade,

GS-12, he felt that each District Adjudication Officer should be given

an equal opportunity to rotate into the Acting Supervisor position.

The administrative judge, relying on the testimony of three of

complainant's coworkers, further found that complainant had also been

rotated into the Acting Supervisor position. The administrative judge

recommended a finding of no discrimination.

In the agency's September 21, 1999 decision the agency also found no

discrimination. After reviewing the record, the Commission finds that

the administrative judge correctly determined that complainant failed

to show by a preponderance of the evidence that the decision to place

Employee A into the position of Acting Supervisor was motivated in any

way by prohibited discriminatory animus.

The agency's decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

March 8, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________ Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.