Rogelio Ruiz, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 11, 2010
0120073301 (E.E.O.C. Mar. 11, 2010)

0120073301

03-11-2010

Rogelio Ruiz, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Rogelio Ruiz,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120073301

Agency No. 200N-0691-2003103077

DECISION

On July 16, 2007, complainant filed an appeal from the agency's June 26,

2007 final decision 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. 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.

ISSUE PRESENTED

The issue presented is whether the agency properly determined that

complainant had not been discriminated against based on his national

origin (Hispanic).

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Police Officer, GS-083-06, at the agency's VA Greater Los Angeles

Healthcare System facility in Los Angeles, California.

On July 21, 2003, complainant filed an EEO complaint alleging that he was

discriminated against on the basis of his race/national origin (Hispanic)

when:

1. he was harassed and/or subjected to disparate treatment in connection

with his treatment by management during the period of February 2003 though

June 2003, as a result of charges brought against him by a female agency

employee (CO-1); and

2. on April 22, 2003, he was not selected for the position of Lead Police

Officer, GS-083-07, under Vacancy Announcement 03-005(AG).

In a letter dated September 30, 2003, the agency partially accepted

complainant's claim for investigation. The agency dismissed discrete

events detailed as part of claim 1 due to untimely EEO Counselor contact.

Complainant had claimed that the agency denied requested leave on or

about February 12, March 5 and March 12, 2003. Complainant's initial EEO

Counselor contact was on May 28, 2003. Under 29 C.F.R. � 1614.107(a)(2),

a complaint shall be dismissed for failure to comply with the time frame

at 29 C.F.R. � 1614.105(a), which provides that a complainant must contact

an EEO Counselor within 45 days of the alleged discriminatory event.

The agency found that complainant had not provided an acceptable reason

to waive the time limits. Complainant stated that he had been involved

in preparing for a case in court. We affirm the agency's dismissal of

these discrete events from claim 1 on the basis of untimely EEO Counselor

contact.

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). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the complaint was referred for a final agency decision

on the record. Twice the agency's EEO office determined that the

EEO Investigator had not gathered all the relevant information needed

in order to make a determination, and the case was sent back for two

supplemental investigations in order to gather the relevant evidence.

On June 26, 2007, 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. The agency first outlined

the circumstances which led to claim 1. Complainant and CO-1 had been

involved in an intimate relationship with one another during 2001 and

2002, although by the time of the following incident the relationship was

over. By January 2003, complainant was involved with another co-worker

(CO-2). On January 31, 2003, there was an incident at a security

checkpoint between CO-1 and complainant, in which both claimed that the

other had made threats. Complainant claimed that CO-1 had threatened him

with grave bodily harm. CO-1 claimed that complainant had threatened

her with his agency-issued firearm on some other unspecified date.

Because of CO-1's charge, the facility Police Chief notified complainant

that an Administrative Board of Inquiry would be conducted, that he would

be reassigned to a different campus of the healthcare system, he would

have to surrender his firearm, he was not to have any contact with CO-1,

and he could not have any contact with CO-2 while on duty. Complainant

continued to report to work and wear his service uniform, however,

during the investigation he was not allowed to carry his firearm.

In March 2003, CO-1 obtained a restraining order against complainant.

On May 7, 2003, the U.S. Attorney decided not to prosecute either

complainant or CO-1 based on the charges, and on May 19, 2003, the State

District Attorney also decided not to prosecute. The agency investigation

into complainant's alleged actions was not completed until mid-August

2003, and in September 2003, complainant was restored to full duty and

his firearm was returned to him.

On April 22, 2003, complainant found out that he had not received

a promotion to Lead Police Officer, GS-7, although he applied, was

qualified, and had been referred for selection. He claimed that his

non-selection was due to his national origin.

In its final agency decision (FAD), the agency assumed that complainant

had established his prima facie cases on both claims, "despite

the deficiencies in complainant's prima facie evidence" in claim 1.

It then articulated the legitimate, nondiscriminatory reasons for the

agency's actions in each claim. Regarding claim 1, the agency stated

that all actions were taken in response to the charges brought by CO-1,

that complainant had threatened her with his service pistol while on

duty, and that it would have been irresponsible if the agency had not

undertaken an investigation into the circumstances of the incident.

The agency did not suspend complainant, and he reported to work to carry

out his law enforcement duties during the investigation. As soon as the

investigation was completed and complainant was cleared, he was restored

to full duty and given his firearm back. As to claim 2, complainant's

non-selection as Lead Police Officer (a supervisory position) in April

2003, which was during the pendency of the investigation, the Police Chief

stated that: "I just don't understand how prudent it would have been for

me as a manager to select someone who was actively being investigated

for an alleged criminal act." The agency noted that after complainant

had been cleared of the accusations, he received the promotion to Lead

Police Officer in July 2004. The agency concluded that complainant had

not shown these reasons to be pretext for discrimination, and found that

he had not shown that he had been discriminated against on the basis of

his national origin. Complainant filed this appeal.

CONTENTIONS ON APPEAL

Complainant did not submit any statement or brief in support of his

appeal. The agency requested 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").

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). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

After a review of the record, we find that the agency properly analyzed

the complaint and determined that complainant had not been discriminated

against. Given the circumstances surrounding claim 1, we find that the

agency provided legitimate, nondiscriminatory reasons for its actions

in connection with the investigation into CO-1's charges, actions which

included restricting complainant's contact with CO-1 and his ability to

visit the healthcare system building in which she worked, and removing

his firearm. Complainant has not in any way shown these actions to be

pretext for discrimination. Although complainant claims that other

employees, not of his protected class, were treated differently, he

cannot point to any situation with the gravity of this one in which the

agency acted differently.

Complainant's contentions center on matters such as being required to

wear his uniform without his service firearm, which he claimed others

were not required to do, or his claim that the agency investigation

took too long. An examination of the record shows that the agency

investigated complainant's claims regarding these comparators, and we

find that the agency's reasons for the differences in treatment are

due to the circumstances of the comparators' situations, and not to

unlawful discrimination. We also find that complainant did not show

that the agency's reason for not selecting him for Lead Police Officer

in April 2003, during the investigation, was in any way pretext for

discrimination.

We have reviewed the record before us and find that the agency has

properly analyzed the facts of the complaint with regard to complainant's

claims of discrimination. There is simply no evidence that complainant

was not selected for discriminatory reasons, or that the conduct of the

agency's investigation into the charges brought by CO-1 was motivated

by discrimination.

CONCLUSION

Based on a thorough review of the record, and in the absence of any

contentions on appeal, we therefore AFFIRM the agency's decision finding

that complainant had not been discriminated against.

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

______03/11/10____________

Date

2

0120073301

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120073301