0120072418
09-05-2007
Omar K. Yusaf, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Omar K. Yusaf,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120072418
Agency No. HS-06-0039
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 22, 2007 final decision concerning
his equal employment opportunity (EEO) complaint alleging 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
Complainant filed a formal EEO complaint alleging that the agency
discriminated against him on the bases of national origin (Guyana), age
(over 40), and reprisal for prior protected EEO activity when it failed to
select him for a GS-12 Immigration Inspector position, a GS-12 Personnel
Security Specialist position, eight Supervisory Customs Inspector
positions, a Port Director position, and six Supervisory Immigration
Inspector positions. Complainant stated that, in each instance, he was
referred for consideration but not selected. Also, complainant asserted
that he has more years of specialized experience than those selected and
his facility management influenced the selection decisions of managers
of other facilities. In addition, complainant alleged that the agency
discriminated against him when, since September 18, 2000, it did not allow
him to perform the full range of Immigration Inspector duties, curtailed
the range of shifts that he was allowed to work, failed to reinstate 53.4
hours of accrued annual leave, and precluded him from working in the same
terminal as a coworker who previously filed an EEO complaint against him.
The agency accepted for and conducted an investigation of the
above-indicated non-selection allegations only. Following its
investigation, the agency informed complainant of his right to request
a hearing before an EEOC Administrative Judge or an immediate final
decision by the agency. Complainant elected the latter.
On March 22, 2007, the agency issued a final decision finding that
complainant failed to establish discrimination as he alleged. The agency
stated that complainant was not selected for the above vacancies because
the selected candidates either held more supervisory experience than he;
held more specialized experience and job knowledge and were eager to
learn, worked well with others, and were able to work independently;
were known first-hand by the selecting official as to performance and
abilities; were located within the commuting area of the hiring facility
and would not require relocation; ranked higher on a hiring certificate;
were available for an interview whereas complainant was not reachable;
or met the needs of the hiring facility at the time. The agency added
that complainant failed to show that the legitimate, nondiscriminatory
reasons it articulated for the non-selections were pretext. The instant
appeal from complainant followed.
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the complainant must
then prove that the legitimate, nondiscriminatory reason articulated by
the agency is merely pretext for its discrimination. McDonnell Douglas,
411 U.S. at 804. Where, as here, the agency articulates a legitimate,
nondiscriminatory reason for its actions, we may proceed directly to
determining whether complainant satisfied his burden for showing pretext.
U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-14
(1983). Complainant may do this in one of two ways, either directly, by
showing that a discriminatory reason more likely motivated the agency,
or indirectly, by showing that the agency's proffered explanation is
unworthy of credence. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981). Essentially, the fact finder must be persuaded by
the complainant that the agency's articulated reason was false and that
its real reason was discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 515 (1993).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred. Complainant failed to establish pretext.
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
September 5, 2007
__________________
Date
2
0120072418
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072418