0120122305
10-03-2012
Nehemias Gonzalez, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Nehemias Gonzalez,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120122305
Hearing No. 510-2011-00572
Agency No. FSA201100238
DECISION
Complainant filed an appeal 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Farm Loan Officer at the Farm Service Agency's Field Office in Lares, Puerto Rico.
On January 26, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (sleep apnea, hypothyroidism, hyperlipidemia, and arterial hypertension) and reprisal when, in February 2010, he was rated best qualified for the position of Agriculture Program Specialist and then the position was cancelled; and in December 2011, another person was placed in the position of Agriculture Program Specialist.
At the conclusion of the investigation, the Agency provided Complainant 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 24, 2012 motion for a decision without a hearing, and issued a decision in favor of the Agency by summary judgment on May 11, 2012. When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).
As an initial matter, in a footnote, the AJ noted that she upheld the Agency's dismissal of the issue of the cancellation of the Agriculture Program Specialist position in February 2010 on the grounds of untimely EEO counselor contact. The AJ determined that Complainant did not contact an EEO counselor until December 29, 2010, beyond the 45-day limitation period required by the regulations.
Nonetheless the AJ found the issue had been investigated addressed the claim on its merits. The AJ found that Complainant applied for the position of Agriculture Program Specialist and was found best qualified. The AJ noted that the State Executive Director (SED) was told by headquarters in Washington, D.C. that he could not fill any positions that would exceed the ceiling level of 57. After finding he had 56 positions, the SED cancelled the Agriculture Program Specialist position, but opted to fill an Administrative Specialist position because he had a greater need for an Administrative Specialist position.
The AJ further found that another employee entered into an EEO settlement with the Agency in October 2010, whereby he was placed in an Agriculture Specialist position. At the time the employee was placed in the position, an Administrative Specialist had resigned, so the SED was able to avoid exceeding the funded ceiling. Complainant felt he should have been placed in the Agriculture Specialist position because he had been found to be best qualified when he had applied before it was cancelled.
In sum, the AJ found that the undisputed evidence of record failed to establish that the Agency's reasons for its actions were a pretext for discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find that the undisputed evidence fully supports the AJ's determination that Complainant failed to prove, by a preponderance of the evidence, that the Agency's reasons for its actions were a pretext for discrimination. The record makes it clear that the office was limited to 57 positions and the SED could not fill all of the positions that were posted. Thus, he cancelled to Agriculture Specialist position. Later, the Agency was legally obligated to comply with the terms of an EEO settlement agreement. As such, the Commission agrees with the findings of the AJ that Complainant was not discriminated against as alleged.
Accordingly the AJ's decision which became the Agency's final order and found that Complainant was not discriminated against as alleged is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
October 3, 2012
__________________
Date
1 Complainant filed his appeal on April 24, 2012. However, the Administrative Judge's decision was not issued until May 11, 2012. The Agency failed to issue a final order within forty days of receipt of the AJ's decision, so the AJ's decision became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i). In effect, Complainant's appeal was premature. Nonetheless, given that the AJ has now issued a decision which became the Agency's final action, the Commission accepts the appeal.
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0120122305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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