Edward Redondo, Jr. v. Department of Justice (Immigration and
Naturalization Service),
01995675
May 3, 2002
.



Edward Redondo, Jr.,
Complainant,

v.

John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service)
 Agency.

Appeal No. 01995675

Agency No. I-95-6623

Hearing No. 340-96-3741X

DECISION


Edward Redondo, Jr. (the complainant) timely initiated an appeal to
the Equal Employment Opportunity Commission (EEOC or Commission) from
a final agency decision (FAD) of the Department of Justice (Immigration
and Naturalization Service)(agency), concerning his 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.

The issue presented is whether the complainant was discriminated against
on the bases of his race (Hispanic),<1> national origin (Mexico) and
sex (male) when: (1) on April 4, 1994, he requested a spousal transfer
to the Riverside, California, Border Patrol Station as a Supervisory
Border Patrol Agent, GS-12; and (2) on November 29, 1994, a white male
was selected for the position.

At the time of his complaint, the complainant was employed by the agency
as a GS-12 Supervisory
Border Patrol Agent, and was stationed at the agency's Imperial Border
Patrol Station in southwestern San Diego County.  Believing that he was
a victim of discrimination, the complainant sought EEO counseling and
subsequently filed a formal complaint in March 1995.  The complainant
alleged that he was subjected to disparate treatment when his April 1994
request for a spousal transfer to the Riverside, California, Border Patrol
Station was denied.  The complainant also alleged that he was subjected
to disparate treatment when the Chief of the Riverside Station selected
S1 for the position of Supervisory Border Patrol Agent.  He claimed
that he was more qualified for the position than S1 because S1 was only
a GS-11.  Complainant felt he should have had priority consideration
for the position because he had filed a spousal transfer request prior
to the issuance of the vacancy announcement.  According to complainant,
the past practice in the Western Region was to grant spousal transfers to
females who marry agents assigned to the different regions.  He believed
that he was discriminated against because he was a male who was following
a female spouse.  He also maintained that he was discriminated against
because the Chief knew he was Hispanic.  Complainant indicated that,
although he did not know the Chief personally, they once met at a
retirement party in Riverside, California.

At the conclusion of the investigation, the agency informed
the complainant of his right to request a hearing before an EEOC
Administrative Judge (AJ), or alternatively, to receive an immediate
final decision from the agency.  The complainant elected the former.
As such, the case was forwarded to the appropriate EEOC District
Office and assigned to an AJ.  Following the hearings, the AJ issued a
Bench Decision finding discrimination based on race, national origin,
and sex.  The agency issued a final decision rejecting the AJ's findings
of unlawful employment discrimination based on race, national origin,
and sex.  This appeal filed by the complainant followed.

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).  An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.

The AJ found that the complainant had established a  prima facie case of
discrimination based on race, national origin, and gender with respect
for a spousal transfer.  The AJ stated that the complainant met the prima
facie burden because he showed that he was (a) a member of protected
classes based on his race, national origin, and gender; (b) he applied
for a spousal transfer in April 1994; (c) he never received a transfer,
nor any response to his request, and (d) he showed that non-Hispanic
and female employees who sought spousal transfers were transferred.

The AJ found that the agency failed to proffer legitimate,
nondiscriminatory reasons for denying complainant a spousal transfer.
According to the agency, the complainant's request was denied because he
was not married to E1 when she transferred to the Temecula Border Patrol
Station.  The AJ found that this was not a legitimate, nondiscriminatory
reason for failing to transfer the complainant to the vacant GS-12
position in Riverside.  She stated that “the greater weight of the
evidence established that there was no requirement that the complainant
be married at the time of the transfer of his spouse to come within the
guidelines for spousal transfer.”  She said that the agency produced no
evidence that this criterion was applied to the complainant in this case
before the hearing.  On the contrary, the evidence showed that the Western
Regional Office responded as if the complainant's request met all criteria
and referred the request to the Chief for action.  The AJ also noted
that, until the hearing, no agency personnel told the complainant that
his spousal request did not meet the Administrative Manual Guidelines.

The AJ held that, even if the agency had articulated legitimate,
nondiscriminatory reasons for denying the complainant a spousal
transfer, the evidence established that their reasons were a pretext
for discrimination.  The AJ did not believe the Chief's claim that
he had nothing to do with the denial of the complainant's spousal
transfer request.  The AJ found that the Chief understood that, if
the complainant's transfer had been approved, no vacancy would have
been announced for the vacant Supervisory Border Patrol Agent position.
Thus, the AJ found that the Chief knew he had to select the complainant.
She found implausible the assertion that the Chief learned from his
assistant that he was not required to select the complainant.  The AJ
specifically noted the fact that the Chief's assistant was not called
as a witness at the hearing to corroborate that account.  In finding
pretext, the AJ noted that between 5 and 10 spousal transfer requests
were submitted from the San Diego Sector, where the complainant was
employed between 1985 and 1995, and that all but complainant's request
were approved.

As for the selection decision at issue, the AJ found that the
preponderance of the evidence established that the Chief did not consider
complainant for the position.  The AJ concluded that the preponderance of
the evidence established that the Chief invoked the competitive selection
process as a mechanism to mask or cover up his intent to preclude the
complainant from filling this position by submitting a valid spousal
transfer request.  The AJ found that the Chief exaggerated the special
requirements of the position and did not proffer a credible reason
for overlooking the complainant and announcing a vacancy.  The AJ also
indicated that, although the complainant had relevant experience as a
GS-12 supervisor, and fully successful ratings, the agency chose to fill
the vacancy by promoting an employee who was a GS-11 Supervisory Agent.

After a careful review of the record in its entirety, the Commission finds
that the AJ's Bench Decision correctly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws.  We therefore
discern no basis to disturb the AJ's finding of discrimination.
The Commission has reviewed the full administrative record and finds
that the AJ's findings are supported by the record.  It is the decision
of the Commission to REVERSE the FAD's finding of no discrimination
based on national origin and sex, because the AJ's ultimate finding,
that unlawful employment discrimination was proven by a preponderance
of the evidence, is supported by the record.
ORDER

The agency is ORDERED to take the following remedial action:

Within thirty (30) calendar days of the date this decision becomes final,
the agency shall retroactively transfer the complainant to the position
of Supervisory Border Patrol Agent, GS-12, or a substantially equivalent
position, within the Riverside, California, Border Patrol Station,
effective April 4, 1994.

The agency shall determine the appropriate amount of back pay, if
any, with interest; overtime, if any, with interest; and any other
benefits due the complainant, pursuant to 29 C.F.R. § 1614.501,  less
any appropriate offsets, no later than sixty (60) calendar days after
the date this decision becomes final.  The complainant shall cooperate
in the agency's efforts to compute the amount of back pay, overtime pay
and benefits due, and shall provide all relevant information requested
by the agency.  If there is a dispute regarding the exact amount of back
pay, overtime pay and/or benefits, the agency shall issue a check to the
complainant for the undisputed amount within sixty (60) calendar days
of the date the agency determines the amount it believes to be due. The
complainant may petition for enforcement or clarification of the amount
in dispute. The petition for clarification or enforcement must be filed
with the Compliance Officer, at the address referenced in the statement
entitled "Implementation of the Commission's Decision."

The issues of compensatory damages and attorney's fees and costs shall be
determined by the Hearings Unit of the EEOC Los Angeles District Office.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final.  The agency shall provide written notification
to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge must be assigned in an expeditious manner to
further process the issues of compensatory damages and attorney's fees
and costs in accordance with the regulations.

The agency shall consider taking disciplinary action against the
management officials identified as being responsible for the decision to
deny the complainant's spousal transfer and selection to the Supervisory
Border Patrol Agent, GS-12, position.  The agency shall report its
decision in the compliance report referenced below.  If the agency decides
to take disciplinary action, it shall identify the action taken.  If the
agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not to impose discipline.

The agency shall post the attached notice as provided below.

Within sixty (60) calendar days of the date this decision becomes final,
the agency shall provide training to the management officials who are
responsible for discriminating against complainant in their duties and
obligations under Title VII.

The agency is further directed to submit a report of compliance, as
provided in the statement entitled “Implementation of the Commission's
Decision.”  The report shall include supporting documentation of
the agency's investigation into complainant's claim for compensatory
damages, a report on the agency officials' training, and evidence that
the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Border Patrol Station in Riverside,
California, copies of the attached notice.  Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted.  The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material.  The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e).  The award of attorney's fees shall be paid
by the agency.  The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final.  The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C.  20036.  The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant.  If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order.  29 C.F.R. § 1614.503(a).  The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action."  29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999).  If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated.  See 29 C.F.R. § 1614.409.

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 (R0900)

This is a decision requiring the agency to continue its administrative
processing of your complaint.  However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court  within ninety (90) calendar days from the date
that you receive this decision.    In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission.  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.  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 3, 2002
__________________
Date




NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated             which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. has occurred at the Department of Justice
(Immigration and Naturalization Service), Riverside, California, Border
Patrol Station.

Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.

The Department of Justice (Immigration and Naturalization Service),
Riverside, California, Border Patrol Station supports and will comply
with such Federal law and will not take action against individuals
because they have exercised their rights under law.

The  Department of Justice (Immigration and Naturalization Service),
Riverside, California, Border Patrol Station was found to have unlawfully
discriminated against the individual affected by the Commission's findings
on the basis of race, national origin and sex when the agency denied him
a spousal transfer and selection to the Supervisory Border Patrol Agent,
GS-12, position.   The agency shall therefore remedy the discrimination
by retroactively transferring the individual, paying the individual any
back pay, other benefits due, attorneys fees, and compensatory damages.
The facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment opportunity laws.

The  Department of Justice (Immigration and Naturalization Service),
Riverside, California, Border Patrol Station will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, Federal equal employment
opportunity law.

                                       ______________________________

Date Posted:

Posting Expires:

29 C.F.R. Part 1614
1The Commission recognizes "Hispanic" as indicating national origin,
not race.

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