01a55809_r
03-24-2006
Stephen L. Carle v. Department of Homeland Security
01A55809
March 24, 2006
.
Stephen L. Carle,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A55809
Agency No. HS-04-0882
DECISION
Complainant initiated an appeal from a final decision concerning his
complaint of unlawful employment discrimination in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Immigration Inspector at the agency's Calais, Maine
facility. Complainant sought EEO counseling and subsequently filed a
formal complaint on October 2, 2002, alleging that he was discriminated
against on the basis of age (48)<1> when:
On July 3, 2002, complainant learned that was not selected for the
position of Supervisory Immigration Inspector, GS-1816-12, announced under
vacancy announcement number ER MSP II 02-154, Calais, Maine Sub-office,
Portland District, Portland, Maine.
After an investigation, the agency issued a final decision, finding
no discrimination. In its final decision, the agency concluded that
complainant failed to show that the agency's articulated reasons for its
selection were a pretext for discrimination. Specifically, the agency
found that the selecting official (retired from federal service at the
time of the investigation) considered the comments of supervisory agency
officials who did not recommend complainant for a supervisory position
based on his lack of people skills at the time of the selection.
On appeal, complainant contends that the agency officials consulted by
the selecting official were less than truthful regarding a specific
incident that occurred years earlier, in which the agency received a
letter of complaint from an individual with whom complainant had dealt
in the course of his duty at the port of entry in Vanceboro, Maine.
Complainant explains that he has significantly more education and
experience with immigration inspections than the selectee and should
have been selected. Complainant contends that each of the officials
providing negative references to the selecting official failed to
provide an accurate assessment of complainant's supervisory skills,
had ulterior motives for providing the negative references and failed to
give complainant credit for previously dealing with a problem employee.
On appeal, the agency requests that we affirm its final decision.
Although the Commission finds that complainant properly established a
prima facie case of age discrimination, (neither party disputes that
the selectee was some 20 years younger than complainant), we also find
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination. In reaching this conclusion, we note that complainant
describes at length, the various conflicts he has experienced throughout
his career that he believes motivated the agency officials to provide the
negative references upon which the selecting official relied. However,
we find that complainant has failed to show that age discrimination
was the real reason that complainant was not selected. Nothing in the
record indicates that the selecting official considered the age of either
candidate at the time of the selection. Instead, the record indicates
that the selecting official considered complainant's tenure with the
agency, previous supervisory performance, and the recommendations the
selecting official received. We note that several agency officials who
had worked with complainant indicated to the selecting official that
they would not recommend that complainant be selected for a supervisory
position.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and the agency's response, we AFFIRM the agency's
final decision finding no discrimination.
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
March 24, 2006
__________________
Date
1Complainant initially alleged discrimination on the basis of reprisal as
well, but this basis was subsequently withdrawn during the investigation.