01985996
05-16-2001
Rita Snorton, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Rita Snorton v. U.S. Department of Justice
01985996
May 16, 2001
.
Rita Snorton,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01985996
Agency No. I-95-6789
Hearing No. 210-98-6035X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her 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. Complainant alleges she
was discriminated against on the bases of race (African American) and
reprisal (prior EEO activity) when she was not selected for the position
of District Adjudication Officer (DAO) on August 23, 1995.<1> For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that complainant, an Investigative Assistant, GS-7
at the agency's Chicago, Illinois, U.S. Immigration and Naturalization
facility, filed a formal EEO complaint with the agency on December
6, 1995, alleging that the agency had discriminated against her as
referenced above. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination based on race because she was on the best qualified
list of candidates for the GS-7 DAO position, she was not selected,
and two of the four selectees were not African Americans. Nonetheless,
the AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely that since complainant had previously
failed the Immigration Officer's Basic Training Course (IOBTC), the
recommending official wanted to give other candidates a chance at the
officer training course. The referring official indicated that concern
had been expressed by headquarter about the spending of money by recycling
individuals who had previously not passed training. The AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
In reaching this conclusion, the AJ found that the recommending official
testified credibly and found that complainant failed to show that racial
animus was a motivating factor in the agency's decision.
The AJ also found that complainant established a prima facie case of
reprisal because the nonselection at issue occurred a �short time�
after she filed her 1992 discrimination complaint. The AJ noted that
the referring official and the selecting official had both given
testimony regarding complainant's 1992 complaint which had not yet
been adjudicated. As stated above, the AJ concluded that the agency
had articulated legitimate, nondiscriminatory reasons for its actions.
The AJ found that complainant had not established that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that the record
did not establish that the consideration of complainant's failure to
pass the IOBTC and the likelihood that other candidates would pass the
IOBTC were pretexts for retaliation. The AJ also noted that the several
of the selected candidates had prior EEO activity. The agency's final
decision implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the
hearing. She also maintains that since 1988, she has applied for and
made the best qualified list for more than eight (8) positions and in
each situation, she has been passed over for a non-Black who ranked
lower on the promotion list. She also maintains that others who also
failed the IOBTC were given a second chance and have since been promoted.
The agency did not provide a response.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race. The facts demonstrate
that the candidates selected for the position at issue here included
those with prior EEO activity and members of all races. Further,
the facts do not indicate that anyone who did not pass the IOBTC was
selected for one of the positions. Therefore, we discern no basis
to disturb the AJ's decision. After a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 16, 2001
__________________
Date
1The DAO position was open at grade levels 5, 7, 9, 11, and 12 through
the agency's merit promotion system. There were 15 vacant positions to
be filled. Complainant applied for consideration at the 7 and 9 levels
through the agency's merit promotion system and through OPM. Complainant
qualified for the GS-7 level. She ranked 5th on the agency personnel
roster and 4th on the OPM list.