01984707
04-30-2001
Jimmy Carrillo, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Jimmy Carrillo v. Army
01984707
April 30, 2001
.
Jimmy Carrillo,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01984707
Agency No. ACBW9702H0110
Hearing No. 350-97-8187X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning his formal 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the agency's final decision is AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant established by
preponderant evidence that he was discriminated against on the bases of
race (Native American), national origin (Hispanic), sex (male), and age
(55) when he was issued a letter of reprimand.
BACKGROUND
Complainant, employed by the agency as a Construction Inspector,
GS-809-07, filed a formal complaint on July 12, 1996, in which he alleged
what has been identified as the issue presented. The agency accepted
the complaint for investigation. At the conclusion of the investigation,
complainant was provided a copy of the investigative file and informed of
his right to elect either a hearing before an EEOC Administrative Judge
(AJ) or an immediate final decision from the agency. Complainant elected
the former. Consequently, the investigative file was forwarded to the
appropriate EEOC District Office and assigned to an AJ. The AJ conducted
a hearing on the matter on February 19, 1998. At the conclusion of the
hearing, the AJ issued a finding of no discrimination. The agency,
in a decision issued on April 15, 1998, adopted the AJ's findings.
It is from that decision that complainant appeals.
Information in the evidentiary file reveals that in November 1995, one
of the agency's contractors submitted to the agency a payment request
for work done. Complainant was assigned to inspect the contractor's
work for completeness. Complainant's inspection report indicated
that the contractor's work did not conform with delivery order plans
and specifications. The contractor was given seven days to correct
the deficiencies noted. On December 11, 1995, complainant conducted a
final follow-up inspection and determined that the contractor's work was
not 98.16 percent completed as claimed in the agency's payment request.
Consequently, complainant recommended that the contractor not be paid.
Subsequently, a meeting was held with complainant and other agency
officials to discuss complainant's recommendation of nonpayment. During
the meeting, one of the agency officials disagreed with complainant's
recommendation. Complainant accused that official of taking bribes from
the contractor to cover up substandard work and stated that he would call
for an investigation if payment was made. When the meeting's intensity
grew, another agency official stated that she would gather all relevant
documents and send them to the JAG office for review. The meeting ended.
In early January 1996, complainant's second line supervisor asked
complainant to provide evidence of fraud or retract his statement
regarding bribes. Complainant did neither. As a result, an investigation
was initiated regarding complainant's accusations. The investigation
revealed that complainant's accusations were unfounded. From the
investigation, the agency concluded the complainant's accusations were
malicious and threatened the relationship of the agency with government
contractors and impugned the integrity of other agency employees.
For that reason, complainant was issued a letter of reprimand.
ANALYSIS AND FINDINGS
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).
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); Loeb v. Textron, 600
F. 2d 1003 (1st Cir. 1979) (applying McDonnell Douglas to age cases).
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.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the agency has stated a legitimate, nondiscriminatory reason
for its action. Specifically, the agency stated that complainant was
issued a letter of reprimand because he maliciously accused an agency
contractor and a fellow co-worker of engaging in fraudulent behavior.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In this case, complainant has failed to meet that burden. Complainant
presented no evidence which suggests that the reason proffered by the
agency constitutes an effort to mask discriminatory evidence. For that
reason, his claim of discrimination fails.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's arguments on appeal, the agency's response,
and arguments and evidence not specifically discussed in this decision,
the Commission AFFIRMS the final agency decision.
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
April 30, 2001
__________________
Date