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.