Juan Solis, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionApr 18, 2000
01986637 (E.E.O.C. Apr. 18, 2000)

01986637

04-18-2000

Juan Solis, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Juan Solis v. Department of Justice

01986637

April 18, 2000

Juan Solis, )

Complainant, )

) Appeal No. 01986637

v. ) Agency No. I956784

)

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal with the Equal Employment

Opportunity Commission from a final decision of the agency concerning

his complaint of unlawful employment discrimination on the basis of

age (forty-eight at the time of the alleged discriminatory events), in

violation of the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.<1> The appeal is accepted pursuant

to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �

1614.405). For the following reasons, the Commission AFFIRMS the final

agency decision.

ISSUE PRESENTED

The issue presented herein is whether complainant has established that

he was discriminated against on the above-referenced basis when, in June

1995 and September 1995, he was not given the opportunity to participate

in career-enhancing details.

BACKGROUND

Complainant, employed by the agency as a Supervisory Border Patrol Agent

at the time of the alleged discriminatory event, filed a formal complaint

on November 1, 1995, in which he raised what has been identified as the

issue presented. The agency accepted the complaint for processing and,

at the conclusion of its investigation, issued a final decision finding

no discrimination. It is from that decision that complainant appeals.

The evidentiary record reveals that, on June 7, 1995, complainant sought

EEO counseling when he realized that, for the second time, a younger, less

experienced Supervisory Border Patrol Agent was detailed to a position

in the Regional Office, and then to a position in the Central Office.

According to complainant, this person was in his mid-thirties and had

less than two years of experience as a first line supervisor when he was

selected for the detail.<2> Complainant contended that he was first

denied the opportunity to be detailed in favor of an employee in his

late twenties or early thirties who had only one year of experience as a

supervisor before he was detailed to the Regional Office. By comparison,

complainant was 48 years old and had amassed seven years of supervisory

experience at the time of the alleged discriminatory events.

Complainant's chief witness, a 51-year old Fields Operations Supervisor,

also contended that older employees were not given the opportunity to

participate in career enhancing details. He contended that, irrespective

of his standing as the agency's second ranking supervisor in this

particular sector with 12 years of seniority, younger agents with less

seniority were selected for details while he was not. He stated that he

never asked for a specific detail because he was not informed in advance

when one was available.

In response, the agency stated that requests for supervisors to serve

on details came from the Regional Office. The requests were then

forwarded to the Patrol Agents in Charge (PAIC), where they would ask

for volunteers. The agency also stated that these requests were not

forwarded to every PAIC. For example, the agency explained that the

Laredo North station, where complainant worked, did not have enough

supervisors on staff, and therefore, supervisors at that location were

not given detail opportunities.

One agency official stated that in his nine years with the Laredo Sector,

only three supervisors had been detailed, and all of them were from

Laredo South. According to this official and agency records, one of

the detailed supervisors was 49 years old at the time he was detailed

to the Regional Office.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see, Loeb v. Textron, 600 F.2d 1003 (1st

Cir. 1979) (applying McDonnell Douglas to age cases). First, complainant

must establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination; i.e., that a prohibited consideration was a factor in the

adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next,

the agency must articulate a legitimate, nondiscriminatory reason(s)

for its actions. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). If the agency is successful, then the complainant

must prove, by a preponderance of the evidence, that the legitimate

reason(s) proffered by the agency was a pretext for discrimination.

Id. at 25.

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether he has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

In this case, the Commission finds that the agency has articulated a

legitimate, nondiscriminatory reason for its actions. Specifically,

the agency stated that complainant was not given the opportunity to

detail because his station, Laredo North, did not have enough supervisors

on staff.

Because the agency has proffered a legitimate, nondiscriminatory reason

for the alleged discriminatory events, complainant now bears the burden

of establishing that the agency's stated reason is merely a pretext for

discrimination. Shapiro v. Social Security Administration, EEOC Request

No. 05960403 (December 6, 1996). Complainant can do this by showing

that the agency was motivated by a discriminatory reason. Id. (citing

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,

complainant has failed to meet that burden. In attempting to prove

pretext, complainant stated that the agency's pattern of promotion was

discriminatory because in 1988, when seven employees including complainant

were promoted, only two were over the age of 40. Complainant also stated

that the selecting official was quoted by another supervisor as saying

that "older supervisors were wasting away their time under mesquite

trees." Nothing in the record supports complainant's contention that

the selecting official actually made the statement attributed to him.

That evidence, bolstered by the fact that complainant was offered a

detail to the Regional Office on July 14, 1995 but did not accept for

personal reasons, is not strong enough to establish that the reason

articulated by the agency constitutes an effort to mask discriminatory

animus directed towards employees over the age of 40.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response thereto, and arguments and

evidence not specifically addressed in this decision, we hereby AFFIRM

the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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:

April 18, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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.

2 The complainant also stated that this person was the son of one Chief

Patrol Agent, and the godson of another. We note, as did the agency,

that nepotism is not a violation of the laws enforced by the Commission.