0120064455_r
02-16-2007
Thomas K. Aiu, Complainant, v. Alberto R. Gonzales, Attorney General, Department of Justice, Agency.
Thomas K. Aiu v. Department of Justice
0120064455
February 16, 2007
.
Thomas K. Aiu,
Complainant,
v.
Alberto R. Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120064455<1>
Agency No. D-04-3775
Hearing No. 100-2005-00311X
DECISION
Complainant filed this appeal from the July 3, 2006 agency decision
implementing the May 26, 2006 decision of the EEOC Administrative Judge
(AJ) finding no discrimination.
Complainant, a Senior Special Agent GS-1811-13 with the Drug Enforcement
Administration (DEA), alleged that the agency discriminated against
him on the bases of race (Pacific Islander), national origin (Native
Hawaiian), age (D.O.B. February 10, 1957), and reprisal for prior EEO
activity when he was not selected for ten GS-1811-14, Group Supervisor
(GS) positions in 2004.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued a decision without a hearing finding no discrimination.
Complainant asserts that he should have been selected for one of the
positions. Complainant stated in his affidavit that he was the only
Native Hawaiian Special Agent in all of the DEA. In his complaint,
complainant stated that in 1987, he was promoted to a GS-1811-13 and that
for the past 17 years, he has attempted to be promoted to GS-1811-14
supervisory positions and above. Complainant stated that in addition
to the respective vacancies for which he applied and on which the Career
Board acted, he had applied for approximately 120 GS-1811-14 GS positions
and was never selected. He stated in his affidavit that over the past 23
years with the DEA, he had received ratings of outstanding and excellent,
the agency's highest ratings. Complainant also stated that he had a
Special Agent Promotional Program (SAPP) score of over 90, out of a
possible 100, and although he continued to make the best qualified list
(BQL) of potential promotions for every announced GS-1811-14 vacancy, he
was denied consideration and promotion. He also stated in his affidavit
that with the exception of one of the selectees who was female, the other
selectees were not of his race or national origin and were younger in
age.
Complainant stated in his affidavit that he had initiated complex
multi-jurisdictional narcotics investigations and targeted the highest
level of drug traffickers as well as their organizations. He stated
that he was involved with other federal crimes impacting national and
homeland security matters. Complainant also stated that he had a Juris
Doctorate degree, which, he stated, gave him a level of education far
beyond most agency managers.
Complainant stated in his affidavit that the individual who was
discriminating against him was the Chairperson of the Career Board and
the current Deputy Administrator of the DEA. He stated that she was the
Special Agent in Charge (SAC) for the Los Angeles Field Division when
the complainant worked there. He also stated that the Chairperson was
intentionally and deliberately causing a roadblock to his promotion.
In his affidavit, complainant stated that he filed an EEO complaint
regarding the agency's failure to allow him to be a backup supervisor
in the agency's Honolulu office.
In his decision, the AJ stated that the agency had articulated legitimate,
nondiscriminatory reasons for each selection at issue, noting that each
SAC and Office head had prepared a detailed memorandum explaining how
the recommended applicants satisfied a standard set of criteria for
promotion and best met the needs of the agency. In so noting, the AJ
addressed each selection made at each of the agency's various offices.
Regarding the nonselections, the AJ noted the record did not establish
that complainant's qualifications were plainly superior to those of
the selectees. The AJ noted that complainant did not present evidence
that his qualifications were observably superior to the selectees so
as to �leap from the record and cry out to all who would listen that
[Complainant] was vastly or -even clearly- more qualified for the
subject job than [the selectees]. Odom v. Frank, 3 F.3d 839, 847 (5th
Cir. 1993).
Regarding complainant's assertion that his record of excellent and
outstanding ratings should have put him above the selectees and even
other applicants, the AJ noted that all of the selectees had received a
most recent performance rating of outstanding and that other applicants,
successful and unsuccessful, had consistently received high evaluations
as well as commendations.
Concerning complainant's assertion that unlike most DEA Special Agents, he
had a Juris Doctorate degree, the AJ noted that the positions complainant
sought did not require a Juris Doctorate degree and that having a law
degree did not make complainant demonstrably superior to the selectees.
The AJ noted that the Deputy Administrator stated that the level of
education standing alone was not a criterion but that the DEA considered
technical knowledge, education, special skills or training peculiar to
or required by the position and that expertise in conducting electronic
interceptions and graduate degrees in criminal justice and management
were more relevant to particular positions than a Juris Doctorate.
Regarding complainant's assertion that his length of experience with
the DEA made him superior to the other candidates, the AJ noted that
greater years of experience did not make a individual more qualified
for a particular position and that objective qualification did not take
precedence in the job selection process over subjective evaluations of
an applicant's personal characteristics. The AJ stated that it was the
agency's prerogative to choose criteria for evaluating job candidates
for a particular position so long as the criteria were applied in a
nondiscriminatory manner, noting that seniority and length of service
were not among the DEA's criteria.
Addressing the reprisal claim, the AJ stated that complainant had
engaged in protected activity and that the Deputy Administrator was
aware of complainant's EEO complaints. The AJ noted that complainant
could not establish that absent the Deputy Administrator's involvement
in the selections that he would have been selected, noting that the
record reflected that all the selectees were more highly recommended
than complainant. The AJ further noted that complainant failed to
establish that the recommending officials were aware of complainant's
prior protected activity.
The Commission's regulations allow an AJ to issue a decision without a
hearing when the AJ finds that there is no genuine issue of material fact.
See 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The Commission finds that grant of summary judgment was appropriate, as no
genuine dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. The agency has articulated legitimate,
nondiscriminatory reasons for not selecting complainant for the positions,
i.e., that the selectees were the best qualified to fill the vacant
positions. Further, complainant did not show that his qualifications
were plainly superior to the qualifications of the selectees.
A review of the selectees' applications does not provide distinctions
which would support a finding that complainant's qualifications were
plainly superior to the qualifications of the selectees and therefore
the agency's reasons for not selecting complainant were pretextual.
The record indicates that the vacancies were announced DEA-wide.
Subsequently, a best qualified list (BQL) was prepared and sent together
with biographical data sheets for each agent on the BQL to the SAC
or Office head where the vacancy was located. The record reveals that
selections for the GS-1811 positions were made by the Deputy Administrator
who chaired the Career Board. The record also reveals that the SAC or
Office head prepared a memorandum making recommendations and providing a
detailed justification for each recommendation which was then reviewed
by the CB. The record reveals further that, among other abilities,
the selectees variously demonstrated the following: leadership;
breadth of investigative experience; working complex, high-level cases
on high level international trafficking organizations with minimal
supervision, including wiretapping and money laundering operations;
building coalitions; mentoring junior agents; motivating and training
subordinates; directing and developing complex and significant drug
investigations at the local, state, and international level, building
and coordinating multi-agency initiatives; developing investigative
initiatives and training programs; and leading complex and clandestine
laboratory investigations. All selectees had received recent performance
ratings of outstanding. Further, the record reveals that at least
six selectees were over the age of 40. One selectee was born in 1954,
two in 1958, two in 1959, and a sixth in 1960, all within five years of
complainant's birth in 1957. The Commission notes that an agency has
broad discretion to carry out personnel decisions and its decisions are
not to be second-guessed by the reviewing authority absent evidence of
unlawful motivation.
Construing the evidence to be most favorable to complainant, complainant
has not shown that his not being selected was motivated by reprisal or
discriminatory animus toward complainant's protected classes.
The agency's decision finding no discrimination is AFFIRMED.
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:
February 16, 2007
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1Due to a new data system, this matter has been re-designated with the
above referenced appeal number.