Antonio Rojas, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJun 25, 2007
0120063514 (E.E.O.C. Jun. 25, 2007)

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.

??

??

??

??

2

0120063514

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

6

0120063514