01a03915
02-06-2001
Albert Huizar, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Albert Huizar v. Department of Defense
01A03915
February 6, 2001
.
Albert Huizar,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A03915
Agency No. 97DCMW44008
Hearing No. 360-99-8453X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
discriminated against on the bases of race (Hispanic)<2> and reprisal
(prior EEO activity) when:
(1) his requests for overtime were denied by his third level supervisor
(Supervisor III), his department was short two full-time or five
part-time employees, and because of manpower shortages, he was required
to spend time doing GS-4 level work, work unpaid hours and take work
home with him;
(2) in the Spring of 1997, when department managers were required to
rotate night shifts, his rotation was longer than another manager's
rotation, and he was not put back on day shift until he filed his
complaint;
(3) managers would walk through the produce department daily and report
back to Supervisor III when they thought things were not right, creating
stressful working conditions;
(4) in mid-1997, he was bypassed for a temporary promotion to Assistant
Grocery Manager (GS-9); and
(5) on August 31, 1997, he received a letter of counseling which he
deemed unfair because he was not given an opportunity to find out what
had happened or correct the problem.
For the following reasons, the Commission affirms the agency's final
order. The record reveals that complainant, a Produce Manager (GS-8) at
the agency's Fort Sam Houston Commissary, contacted an EEO counselor in
July 1997, and filed a formal EEO complaint with the agency on August 6,
1997, alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding insufficient evidence to conclude that
complainant was discriminated against as claimed.
The AJ concluded that complainant failed to establish a prima facie case
based on race because he failed to show that the other managers who he
alleged were treated differently than he were outside of his protected
class. Specifically, the AJ found that department managers whose areas
were adequately staffed, were granted overtime, and who were subject to
scrutiny, were of complainant's protected class. The AJ noted that
the first manager rotated on the night shift was also Hispanic as was
the employee temporarily promoted. The AJ found that complainant failed
to establish that non-Hispanic employees accused of similar infractions
were penalized more lightly.
The AJ concluded that complainant established a prima facie case of
reprisal. The AJ found that complainant's first EEO complaint, filed in
1986, was not sufficiently close in time to the action complained of to
establish a causal connection, and noted that there was no information
in the record regarding when complainant filed his other two complaints
or when he acted as a witness in a co-worker's complaint to establish
a causal connection based in closeness in time. The AJ found, however,
that complainant established a prima facie case regarding his claim that
on August 31, 1997, he was given a letter of counseling.
The AJ then found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ concluded that all of
the departments were short staffed in 1997, and complainant made only one
request for additional help during the period of alleged discrimination.
The AJ noted that, complainant presented no evidence of the number of
requests he submitted for overtime, and, while other manager's requests
were granted, there is no record of how many requests other managers
made which were denied.
The AJ found that all managers were expected to perform a wide
range of tasks, including work usually performed by GS-4 employees.
Complainant was the second manager put on the night shift because of
management short-staffing. The first manager remained on that shift
for six weeks. Complainant was assigned that shift for eleven weeks,
then removed after he filed a complaint. Supervisors I, II, and III
also took turns on the night shift. The AJ found that Supervisor III
conducted inspections of all departments to ensure compliance with
sanitation and safety regulations. Other department managers confirmed
that, in their departments, inspections were frequently conducted and
pictures were taken. Two department managers averred that they received
counseling because of infractions. The AJ noted that Supervisor III had
previously verbally counseled complainant, and the written counseling
was based on a serious infraction. The AJ also found that the temporary
promotion was non-competitive, and that the selectee, a Hispanic female,
had more experience than complainant.
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/retaliation. In reaching this conclusion, the AJ found
that complainant failed to submit any evidence supporting his argument.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal.
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 articulated reasons
were a pretext for discrimination. We discern no basis to disturb
the AJ's decision. Therefore, 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 order.
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
February 6, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.
2 The Commission considers the classification �Hispanic� to be a national
origin.