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