01A24894
12-04-2003
Jon S. Arestad, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, (Immigration and Naturalization Service) Agency.
Jon S. Arestad v. Department of Homeland Security
01A24894
December 4, 2003
.
Jon S. Arestad,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
(Immigration and Naturalization Service)
Agency.
Appeal No. 01A24894
Agency Nos. I-98-W121; I-99-W134
Hearing No. 380-A1-8008X
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 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.
The record reveals that complainant, an Immigration Inspector at the
agency's Pre-Flight Inspection office, Vancouver International Airport
facility, filed formal EEO complaints on July 9, 1998 and on August 23,
1999.<1> Complainant alleged that the agency had discriminated against
him on the bases of race (Asian), national origin (Korean), and reprisal
for prior EEO activity when:
(1) he was subjected to harassment beginning in December 1998;
he was given a negative performance appraisal in May 1998;
he was given a letter of reprimand in June 1998;
he was not selected for the position of Special Operations Immigration
Inspector GS-11; and
his request for an extension of overseas assignment was denied.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). According to the AJ's Decision, the parties
agreed to a decision without a hearing based solely on the written record.
In rendering her decision, the AJ explained that she did not apply the
principles of summary judgment because the parties waived their right
to a hearing. AJ Decision p. 6. Based on the written record, the AJ
issued a decision finding no discrimination.
Decision of the Administrative Judge
The AJ concluded that complainant did not establish a prima facie case
of discrimination based on race or national origin because he failed
to show that his managers did not subject others with a similar work
history to criticism, or that they did not reprimand other employees with
a similar number of customer complaints. Even assuming a prima facie case
was established, the AJ found that complainant did not demonstrate the
agency's reasons for being critical of his performance or for issuing
a reprimand, were a pretext for discrimination. More specifically,
complainant's second level supervisor (RMO1) had criticized complainant
for his slow rate of processing travelers' entry documentation even
after he had been instructed to use an expedited procedure. The AJ
found that there was no evidence that RMO1's comments were harassment
and were motivated by complainant's race or national origin.
Addressing complainant's claim that his performance appraisal of �fully
successful� was motivated by race and national origin, the AJ found that
complainant failed to show that RMO1 mis-characterized his performance
or that others with similar performance were rated higher. Therefore,
the AJ determined that his performance appraisal was not based on
discriminatory motives.
Addressing complainant's claim of discrimination when he was not
selected for a promotion to Immigration Inspector GS-11, the AJ found
that complainant did not demonstrate that the agency's reasons were a
pretext for discrimination on any of the alleged bases. According to
the AJ's findings, the officials recommending the selections, RMO1 and
RMO2, both stated that the reasons complainant was not selected were
that complainant had the highest rate of complaints from the public,
he failed to follow his supervisor's instructions and their suggestions
for improving his performance, and those selected were more deserving
of a promotion.<2>
In deciding complainant's claim that he was denied a request for an
extension of his overseas appointment because of discrimination, the
AJ found that complainant stated a prima facie case of discrimination
based on race, national origin and retaliation. She concluded, however,
that the agency stated legitimate non-discriminatory reasons for denying
complainant's request - namely that complainant had been disciplined
and had performance problems. The AJ found that complainant failed
to point to other inspectors who had also been disciplined, but were
approved for extended overseas appointments. For this reason, the AJ
concluded that the agency's reasons were credible and were not a pretext
to hide discrimination. The agency's final order fully implemented the
AJ's decision finding no discrimination.
Complainant's Contentions on Appeal
On appeal, complainant contends that the AJ erred in not finding that
RMO1 retaliated against him because RMO1 made several statements,
which he contends were direct evidence of reprisal. In particular,
complainant argues that RMO1 specifically referred to complainant's EEO
activity in derogatory terms and cited complainant's protected activity
as a reason for not selecting him for a promotion.
Complainant also contends that the AJ erred because she did not address
whether the written reprimand issued in May 1998 was done in retaliation
for his protected activity which occurred in January 1998. Complainant
argues that the reprimand was linked to his protected activity because
the agency offered to withdraw the proposed reprimand in exchange for
his withdrawal of his EEO complaint.
Complainant argues that he proved the agency's reasons for not promoting
him were a pretext for discrimination because he received a rating of
excellent in his performance appraisal for the period of time leading
up to the selection. Complainant claims that his rating of excellent in
the area of inspections and professionalism refuted the agency's claim
that he had been a poor performer and had disciplinary problems.
Complainant refuted RMO1's contention that he failed to respond to
citizen complaints in a timely manner and he claimed that his excellent
rating in professionalism demonstrated that the agency's reasons for not
promoting him, and not granting his request for extended overseas duty,
were a pretext for discrimination. He argued that the only employees
whose requests for extensions of appointments were denied had engaged
in protected EEO activity. He argued that the reprimand only concerned
his failure to respond to his supervisor's request for information in
a timely manner, but not the manner of his performance of inspections.
Complainant claims that RMO1 initially recommended his request for an
extension be approved, but that he changed his recommendation because
of his knowledge of complainant's protected activity.
Agency's Contentions on Appeal
The agency responded on appeal that complainant did not appeal the AJ's
decision that it did not discriminate based on complainant's race or
national origin therefore, the AJ's decision on those bases should be
affirmed. The agency further argues that complainant failed to establish
a prima facie case on any of the alleged bases or to produce evidence
that was sufficient to demonstrate pretext regarding any of the issues.
The agency contests that the performance appraisal at issue was negative
in any way or that complainant established any connection between his
rating and his protected bases.
The agency contends that it had legitimate reasons for not selecting
complainant for a promotion including the fact that his application
was incorrectly scored and should not have been advanced for further
consideration. Finally, the agency disputes that there was any direct
evidence because the statements at issue were mere innocent references
to complainant's protected activity without discriminatory intent.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission concludes that the standard of
review of the AJ's decision without a hearing in this case should be
based on a substantial evidence. 29 C.F.R. �1614.405(a). There is no
indication the parties either requested a decision by summary judgment
or contemplated that a decision applying the principles of summary
judgment should be issued. Furthermore, the record does not indicate
that the AJ determined there were no disputes of material fact and no
genuine issues of credibility such that summary judgment was appropriate.
29 C.F.R. �1614.109(g). Instead it is evident from a fair reading of the
AJ's decision that she made findings of fact after weighing the evidence.
Accordingly, the AJ's post-hearing factual findings 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.
We address first, complainant's challenge of the AJ's conclusion that
RMO1's statements were not direct evidence of discriminatory animus.
Direct evidence of discrimination is any statement made by an agency
official that, on its face, demonstrates a discriminatory or retaliatory
motive and is linked to the complained of adverse action. EEOC Policy
Guidance on Recent Developments in Disparate Treatment Theory, EEOC
Notice No. 915.002 at 16 (July 7, 1992).
Complainant claims that RMO1's statement that complainant �misleads
the public, his peers supervisors and EEO investigators alike� was
direct evidence of reprisal. He further claims that RMO1's reference to
complainant's EEO activity in a memorandum recommending disapproval of
an extension of his overseas assignment was direct evidence of reprisal.
A review of RMO1's statements in the memorandum indicates he originally
recommended approval of complainant's request because he feared
complainant would file an EEO complaint against him. RMO1 explained
that he decided to change his recommendation based on his negative view
of complainant's performance and his inability to receive constructive
criticism.
RMO1 made another statement in his 1999 investigative affidavit expressing
the opinion that EEO complaints are often filed by disgruntled employees
and contain unfounded accusations. There was no evidence that this
statement was connected to his actions at issue in these complaints.
Based on these facts, we conclude that the statements are not direct
evidence but instead indicate RMO1's opinion that complainant's EEO
complaint had no basis and was groundless. His reference to complainant's
protected activity when recommending against his extension request
indicates only his fear that complainant would file an EEO complaint not
that he harbored discriminatory intent. He further explained his true
reasons for disapproving the request were based on non-discriminatory
motives - complainant's failure to perform his duties in a professional
manner and his failure to accept criticism from his supervisors.
Having concluded that there is no direct evidence of discrimination, the
AJ was correct to apply the principles set forth by the Supreme Court
when there is circumstantial evidence. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The prima facie inquiry may be dispensed with
when the agency articulates a legitimate, nondiscriminatory reason
for its action. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
The Commission concludes that the AJ's findings of fact and her conclusion
that the agency did not discriminate on any of the alleged bases, is
supported by substantial evidence in the record. Complainant argues
that the AJ did not address his contention that RMO1 retaliated against
him by issuing a proposed reprimand in February 1998. We conclude,
however, that the AJ specifically found that the agency had legitimate
reasons for reprimanding complainant which he did not show was more
likely based on his protected activity.
The record supports that RMO1 issued a reprimand based on two incidents
in which complainant was the inspector. RMO1 received complaints from
the travelers/passengers and an airline employee about complainant's
abusive conduct and overzealous review of their documentation. Although
complainant disputed that he was at fault in these incidents, there was
substantial evidence to support the AJ's conclusion that the reprimand,
the incidents forming complainant's claim of harassment and the agency's
denial of a request to extend his overseas appointment were due to these
incidents and not because of discriminatory motives.
Similarly, the record reflected that these incidents, and complainant's
response to them, formed the basis for several comments in RMO1's rating
of complainant in March 1998. Complainant claimed that his previous
rating had been �outstanding� and that the 1998 �fully successful� rating
was lower due to discrimination. The record disclosed that complainant's
rating for the 1994-95 time period was outstanding, but reflected only
that a different rating official had a different view of complainant's
performance several years before. RMO1, in his response to the claim,
stated that the facility had a large number of complaints from passengers
which needed to be addressed. His more critical rating of complainant's
performance reasonably reflected his efforts to address concerns about
passenger complaints. Therefore, we conclude that the AJ's finding that
the agency's rating of complainant was not motivated by discrimination,
was supported by the record.
Moving to complainant's non-selection for a promotion to a GS-11
Immigration Inspector position, the Commission concludes that the AJ's
decision finding no discrimination, was supported by the evidence.
The record contained the scores, known as the �Officers Corps Candidate
Summary�, of those selected for promotion and those of complainant.
They were rated on such categories as technical knowledge, productivity
and adaptability. The Summaries disclosed that each of those selected
had, on average, higher scores than complainant. Complainant did
not dispute this evidence, even stating that those selected were good
officers. Complainant contended that he was �just as good� and that he
had received a rating of �excellent� for the period of time during which
the selection took place. He failed, however, to overcome the selecting
officials reasons for not selecting him, which were based on the number
of complaints from the public about complainant's conduct of inspections,
as well as his difficulty in following his supervisor's instructions.
Accordingly, we find the AJ's conclusion finding no discrimination was
supported by the record.
The agency had a similar rationale for denying complainant's request
for an extension of his overseas appointment - pointing to the number
of complaints by passengers, airline employees, his peers and his
supervisors.<3> RMO1 further stated that complainant's conduct projected
an unfavorable image of the Immigration Service to travelers. The record
supported the AJ's finding that complainant failed to proffer evidence
that other inspectors who a similar performance and disciplinary history
were treated more favorably. Therefore, the Commission finds no reason
to overturn the AJ's decision.
CONCLUSION
After a careful review of the record, the arguments of the parties and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's findings of fact are supported by substantial evidence in
the record. Accordingly, 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
December 4, 2003
__________________
Date
1 The facility is part of the agency's Seattle
District Office.
2RMO2 was the Assistant District Director for Inspections at the time
of the selections.
3Although not approved for overseas duty, complainant was permitted to
rotate to locations within the United States.