0120080628
01-27-2010
Humberto Hernandez, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Natural Resources Conservation Service), Agency.
Humberto Hernandez,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Natural Resources Conservation Service),
Agency.
Appeal No. 0120080628
Hearing No. 360-2006-00073X
Agency No. NRCS-2005-00261
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination.
BACKGROUND
The record reveals that during the relevant time complainant worked
at the agency's National Resources Conservation Service (NRCS).
Complainant worked as a Regional Conservationist, SES (Senior Executive
Service), South Central Region in Fort Worth, Texas. Complainant
supervised and provided leadership to the four State Conservationists,
one ES-04 and three GS-15 positions. In 2004, the NRCS underwent a
nationwide reorganization and its six Regional Offices were realigned
into three Regional Assistant Chief (RAC) Offices for the East,
Central and West regions. As a result of the reorganization, the
six Regional Conservationist positions were abolished. The Regional
Conservationists and their staff of 10 to 20 employees were replaced by
three Regional Assistant Chiefs with two assistants each. The Regional
Conservationist position was a career SES position and the newly created
Regional Assistant Chief position was a politically appointed non-career
SES position. Complainant stated that, because of the reorganization,
he made the decision to voluntarily downgrade from ES-04, Regional
Conservationist to GS-15, Resource Conservationist1 on the Oversight and
Evaluation Staff effective January 11, 2004. Believing that he was a
victim of discrimination, complainant sought counseling on March 8, 2005,
claiming that he learned on February 8, 2005, that he had been given
false information by management that affected his decision to accept a
voluntary downgrade. Subsequently on April 26, 2005, complainant filed
a complaint alleging discrimination.
In its September 20, 2005 notice accepting complainant's complaint for
investigation, the agency defined complainant's complaint as alleging
that he was discriminated on the bases of age (61), national origin
(Hispanic), and in reprisal for unspecified activity when:
In 2004, management implemented a reorganization in an attempt to force
him to retire and subsequently caused complainant to be downgraded from
an ES-04 Regional Conservationist, South Central Region, to a GS-15
Natural Resource Manager (Resources Conservationist) on the National
Oversight and Evaluation Staff in Fort Worth, Texas.2
The agency advised complainant that if he disagreed with the definition
of the accepted claim he should advise the agency in writing within
seven calendar days. Complainant did not object to the definition of
the accepted claim.
At the conclusion of the investigation, complainant received a copy
of the investigative report. The agency informed complainant of
his right to request a hearing before an EEOC Administrative Judge
(AJ), or alternatively, to receive a final decision from the agency.
Complainant initially requested a hearing before an AJ. On January
12, 2007, the agency filed a motion for summary judgment. Thereafter,
on January 15, 2007, complainant filed a motion for summary judgment.
On August 15, 2007, the AJ issued a decision without a hearing. In her
decision, the AJ noted that after the close of discovery, complainant
alleged that his non-selection for the RAC position and the agency's
revised telecommuting policy are an integral part of his claim and
that they provide additional evidence in support of his claim. The AJ
noted that in the alternative, complainant claimed that in the event
his non-selection and the revised telecommuting policy are considered
new claims, they are like or related to his original claim and could
have been expected to grow of out of the original claim.
The AJ noted that in the agency's September 20, 2005 correspondence
accepting complainant's complaint, complainant was advised of the issue
accepted for investigation and informed that if he disagreed with the
defined claim he must provide an objection in writing within seven
calendar days. The AJ noted complainant did not object to the issue
defined and did not challenge the definition of the accepted issue
until after the close of discovery. The AJ found that the issues
of complainant's non-selection for a RAC position and the revised
telecommuting policy were not accepted by the agency for investigation;
however, the AJ stated that she would consider the creation of the RAC
positions under the reorganization, and the duty location of those
position, as background to the extent that they are relevant to the
accepted issues. Additionally, the AJ noted that a request to reframe
or redefine the issue must be made, at the latest, prior to the close
of the discovery period as both parties must have adequate opportunity
to conduct discovery on all accepted claims to litigate them properly.
The AJ found that complainant's request to reframe or redefine the issues
was untimely since he did not make such a request until discovery had
closed and the parties had filed dispositive motions. Accordingly,
the AJ found the issues of the non-selection to the RAC position and
the revised telecommuting policy were not properly before her.
As to the 2004 reorganization, the AJ found that there was no genuine
issue of material fact in dispute, and concluded that complainant had
not been discriminated against as alleged. Specifically, the AJ found
that the agency presented legitimate, nondiscriminatory reasons for its
actions, which complainant failed to rebut.
On October 12, 2007, the agency issued a notice of final order fully
implementing the AJ's decision. Thereafter, complainant filed the
instant appeal.
On appeal, complainant reiterated his argument that his non-selection
for a RAC position and the agency's revised telecommuting policy
were an integral part of his claim and that they provide additional
evidence in support of the existing claim. Complainant also asserted,
in the alternative, that in the event his non-selection and the revised
telecommuting policy were considered new incidents, he argues that they
are like or related to the pending claim, and could have been expected
to grow out of the original complaint. Moreover, complainant stated
that the AJ erred in finding that complainant failed to establish that
the reasons the agency articulated for its actions were pretexual.
Specifically, complainant stated that the AJ erred in finding that the
RAC positions created as a result of the reorganization had "different
functional responsibilities" than those of the career Regional
Conservationist positions that existed prior to the reorganization.
Complainant also claimed that the AJ erred in finding that the reason for
the change in duty location was because of the extensive travel of the
RAC within their respective region which made it more cost effective
and efficient to have the RACs travel from their respective homes,
rather than Washington, D.C. Finally, complainant argued that the AJ
erred in finding that complainant failed to establish that there were
genuine issues of material fact requiring a hearing.
In response to complainant's appeal, the agency argues the AJ did not err
in denying complainant's request to reframe or redefine his complainant to
include the non-selection for a RAC position and the revised telecommuting
policy. The agency argues it properly defined the issue for acceptance,
which complainant failed to dispute in September 2005. The agency also
argues that the intent of amending a complaint is to include events that
occurred subsequent to the event identified in the original complaint.
The agency notes that the proposed amended claims raised by complainant
occurred prior to his April 2005 complaint. Moreover, the agency argues
that these issues were not like or related to the pending claim, and were
also untimely pursuant to 29 C.F.R. � 1614.107(a)(2). Additionally,
the agency contends that the AJ properly found that complainant failed
to rebut the agency's articulated legitimate, nondiscriminatory reasons
for its actions. The agency argues that the AJ correctly decided that
the agency did not discriminate against complainant for implementing
its reorganization and deciding to change the duty stations of the RACs.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that complainant failed to show that
the AJ abused her discretion in declining to redefine the issues in
complainant's complaint. The record discloses the agency properly framed
complainant's complaint in its September 20, 2005 acceptance letter.
The record reveals, and complainant does not dispute, that he never
challenged the agency's definition of his complaint as instructed in the
agency's acceptance letter. Moreover, we find complainant did not request
to redefine or amend his complaint until after the close of discovery.
Furthermore, we do not find that the issue of the non-selection for a
RAC position is "like or related" to the accepted claim. A later claim
or complaint is "like or related" to the original complaint if the later
claim or complaint adds to or clarifies the original complaint and could
have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States
Postal Service, EEOC Request No. 05891068 (March 8, 1990). However,
we note the AJ properly considered the creation of the RAC positions
and their assignment locations as background for the accepted claim.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 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.
Upon review, we find summary judgment was appropriate as no genuine issues
of material fact exist. We find that the agency articulated a legitimate,
nondiscriminatory reason for its actions in 2004. The Chief of NRCS
(hereinafter Chief) stated that he made the decision to reorganize
NRCS and provided overall leadership in the implementation of the
reorganization. The Chief asserted that the goal of the reorganization
was to streamline the agency. The Chief claimed that this allowed the
agency to better meet the growing demands for NRCS services. The Chief
maintained that the reorganization strengthened multidisciplinary
technology support to the states and territories; consolidated similar
functions to enhance communication and coordination, aligned human
capital resources with mission, goals and organizational objectives;
streamlined processes and procedures; provided an improved career ladder
for technical personnel; and better balanced Deputy Areas and workload
at the national level.
The Undersecretary of Agriculture stated that the purpose of the
reorganization was to streamline the agency; eliminate regional offices,
which it was thought had grown too big and too intrusive; and to empower
the state conservationists. The Undersecretary also stated that before
the reorganization there were six large Regional Offices and with the
reorganization they wanted to eliminate the Regional Offices and reprogram
the staff to the field levels of the agency.
The Chief stated that employees were informed about the reorganization by
various methods, i.e., letter from the Chief, a reorganization website,
teleconferences and face to face meetings. The Chief asserted that the
decisions about placements were made by the Reorganization Team and were
made in accordance with the Placement Strategy. The Chief said that all
affected employees were offered a position at their same grade level.
The Chief noted that, for those employees who chose other options,
NRCS provided a wide array of personnel tools to ease the transition.
The Chief claimed that complainant requested a voluntary downgrade to the
position of Natural Resources Manager, GS-401-15, on the Oversight and
Evaluation Staff in Fort Worth, Texas, effective January 11, 2004. The
Chief stated that this change occurred prior to the reorganization. The
Chief reported that complainant did not hold the position of Regional
Conservationist at the time of the reorganization. The Chief argued that
complainant's former position of Regional Conservationist was abolished
due to the reorganization, but it was not replaced by the RAC positions.
The Chief explained that the RAC positions have different functional
responsibilities and were not non-career appointments. The Chief
maintained that complainant would not have had any entitlement to the new
RAC position even if he remained in his former position. Additionally,
the Chief said that the RACs were political appointees and complainant
would have to surrender his career appointment.
The Chief argued that he made the decision as to who would be selected
as the RACs, subject to approval by the Secretary of Agriculture and the
Office of Presidential Personnel. The Chief stated that the positions
were established with duty locations to be determined. The Chief claimed
that the original duty station was Washington, D.C. when the RACs were
hired in July/August 2004. However, the Chief explained that, because
the three RACs traveled extensively within their regions, the decision was
made in December 2004 to make their home addresses their duty locations.
The Chief maintained that it was more cost effective and efficient to
have the RACs travel from home rather than from Washington, D.C.
The Chief stated that he did not ask for information regarding retirement
plans during the reorganization. The Chief argued that the retirement
plans for the Regional Conservationists did not play a part in his
decision to reorganize the agency.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reason for the reorganization and complainant's
subsequent reassignment. Furthermore, complainant failed to show
that the agency's action was motivated by discrimination. Moreover,
complainant failed to show, by a preponderance of the evidence, that he
was discriminated against on the bases of age or national origin.
The agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
January 27, 2010
__________________
Date
1 This position was also known as a Natural Resource Manager.
2 Complainant later withdrew the basis of reprisal.
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0120080628
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013