0120063514
06-25-2007
Antonio Rojas, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Antonio Rojas,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200635141
Hearing No. 120-2006-00089X
Agency No. 050042100207
DECISION
On May 19, 2006, complainant filed an appeal from the April 21, 2006,
final agency decision (FAD) concerning his equal employment opportunity
(EEO) complaint alleging 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Electronics Engineer at the agency's Naval Air Warfare Center
Aircraft Division facility in Patuxent River, Maryland. On March 11, 2005,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of national origin (Hispanic/Puerto Rican)2, and age
(D.O.B. 03/24/1956) when:
1. In a meeting with his supervisors on September 20, 2004, complainant
was told that all actions relating to his promotion to a GS-13 position
were put on hold;
2. On March, 9, 2005, complainant's supervisor proposed a work assignment
plan and stated that if complainant did well and waived his rights
regarding the EEO complaint, he would open a GS-13 position;
3. Complainant's supervisors compared complainant to younger co-workers
and granted those younger co-workers more opportunities to advance;
4. On June 1, 2001, complainant's supervisor made the remark: "You better
speak better language or we will ship you back where you came from with
your green card;"3 and
5. From 2000 to the present, complainant's supervisor treated him
differently than other co-workers by providing late performance
appraisals, ignoring complainant's requests for discussion of projects,
raising his voice to complainant in front of co-workers, and blaming
him for situations outside of complainant's control and responsibility.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing but subsequently withdrew his request.
Consequently, the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged. Specifically,
as to complainant's claims of disparate treatment, the FAD found that
the agency had articulated legitimate, nondiscriminatory reasons for
its actions and complainant had failed to prove that those reasons were
pretext for discrimination. Regarding complainant's harassment claim,
the FAD found that complainant had failed to prove that the alleged
incidents were related in any way to his membership in a protected group.
Complainant has raised no new arguments on appeal. The agency requests
that we affirm the FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
We will assume, arguendo, that complainant has established a prima facie
case of discrimination on the alleged bases. The agency has however,
articulated legitimate, nondiscriminatory reasons for the challenged
actions. Specifically, as to issues (1) and (2), the agency stated the
following: complainant was told all paperwork regarding a promotion to
GS-13 status was placed on hold because complainant was not eligible for
a noncompetitive promotion to GS-13 status. Additionally, the agency
stated that complainant's full performance level stopped at the GS-12
level and complainant needed to become more involved in major projects.
As to issue (3), the agency has also articulated a legitimate,
nondiscriminatory reason; namely that the comparator employee cited to by
complainant was on a "career ladder" and eligible for a noncompetitive
promotion to GS-13 status. Complainant's supervisor also stated that
he never compared complainant to younger co-workers, rather, he only
mentioned to complainant the type of initiatives that the supervisors
desired. As to (5), the agency articulated legitimate, nondiscriminatory
reasons; namely, the agency admitted that every employee received late
performance appraisals. The agency further stated that attempts by
complainant's supervisor to schedule time to discuss projects were made
difficult by complainant's unavailability. Complainant's supervisor also
denied ever raising his voice at complainant and did not recall ever
blaming complainant for situations outside his control or responsibility.
Complainant has presented no persuasive arguments or evidence proving that
the agency's articulated reasons were pretext for discriminatory animus.
Harassment
Harassment of an employee that would not occur but for the
employee's race, color, sex, national origin, age, disability, or
religion is unlawful. See McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct
is severe. See Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th
Cir. 1982). Whether the harassment is sufficiently severe to trigger
a violation of Title VII must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. See Harris v. Forklift Sys., 510 U.S. 17
(1993).
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) he was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on his membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
In the instant case, we find that complainant has failed to establish
a prima facie case of harassment. As to incident (4), we note that
complainant's supervisor denied ever making the remark, and complainant
has offered no witnesses or corroborating evidence supporting this claim.
Because complainant did not ultimately avail himself of a hearing where
an AJ could have made a credibility determination, we are left with the
evidence in equipoise, and as such, we find that complainant failed to
meet his burden of proof by a preponderance of the evidence.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
June 25, 2007
__________________
Date
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
2 The Commission considers "Hispanic" to be a national origin, as
opposed to a race.
3 Complainant has alleged both disparate treatment and hostile work
environment harassment. As to claim (4), however, we find that this
incident is properly analyzed only under a harassment framework.
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0120063514
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063514