Santiago Galaviz, Complainant,v.Hector V. Barreto, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionSep 19, 2002
01A23286_r (E.E.O.C. Sep. 19, 2002)

01A23286_r

09-19-2002

Santiago Galaviz, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.


Santiago Galaviz v. Small Business Administration

01A23286

September 19, 2002

.

Santiago Galaviz,

Complainant,

v.

Hector V. Barreto,

Administrator,

Small Business Administration,

Agency.

Appeal No. 01A23286

Agency No. 11-99-003

Hearing

No. 360-A1-8298X

DECISION

Complainant appeals from the agency's final order in the above-entitled

matter. Complainant filed a formal EEO complaint in which he claimed that

the agency discriminated against him on the bases of his national origin

(Hispanic) and disability (multiple service-connected disabilities) when

(1) he was asked several questions concerning his disabilities during

an interview for the position of Administrative Clerk, GS-303-01; and

(2) the agency filled the Administrative Clerk position with another

candidate after complainant failed to report for duty.

The record reveals that complainant interviewed for the position

of Administrative Clerk, GS-303-01. Complainant claimed that during

the interview, the District Director asked him questions pertaining

to his disability after he explained that his extended period without

working was due to his disability retirement. Complainant stated that

the District Director asked if he was well enough to be able to handle

the constant pressure that he would be receiving from customers on the

telephone. Complainant further stated that the District Director asked

him about the percentage of his service-connected disability. By letter

dated July 2, 1998, the agency notified complainant that he had been

selected for the position. Complainant failed to report for work on his

scheduled reporting date of August 3, 1998, due to a medical appointment.

According to complainant, he called the agency every day from August 3,

1998, to August 14, 1998, to request a new reporting date. On August 14,

1998, complainant was informed that another individual had been hired

for the Administrative Clerk position.

By decision dated February 26, 1999, the agency dismissed the complaint

on the grounds that complainant failed to initiate contact with an EEO

Counselor in a timely manner. In our previous decision, Santiago Galaviz

v. Small Business Administration, EEOC Appeal No. 01993493 (December 8,

2000), we reversed the agency decision and remanded the complaint to

the agency for further processing. Subsequent to the completion of

the agency investigation, complainant requested a hearing before an

EEOC Administrative Judge (AJ). The hearing was held and afterwards

the AJ issued a bench decision finding that complainant had not been

discriminated against with regard to each of his claims. The AJ found

with regard to the first claim that although certain questions need not

have been asked, discrimination could not be attributed to the agency in

light of the fact that complainant was selected for the Administrative

Clerk position. With respect to the second claim, the AJ found that

the agency acted reasonably when it decided to select another individual

after complainant did not report for duty. The AJ observed that agency

officials asserted that complainant did not notify them that he was

undergoing medical treatment for an ear infection on his first scheduled

day of work. The AJ found that complainant did not produce evidence to

establish that he notified agency officials that he would be unable to

appear for work.

The agency issued a final order dated April 26, 2002, stating that it

was fully implementing the AJ's decision. Thereafter, complainant filed

the instant appeal.

In response, the agency asserts that complainant failed to establish a

prima facie case of national origin discrimination. The agency states

that complainant did not name a similarly situated applicant not in his

protected class who was treated more favorably. The agency also asserts

that complainant failed to establish a prima facie case of disability

discrimination. With regard to the first claim, the agency states that

non-disabled individuals were not treated more favorably in light of the

fact that complainant was selected for the Administrative Clerk position.

As for the second claim, the agency maintains that there is no evidence

of the agency holding the position open for non-disabled individuals

who did not report to work on their report to duty date. The agency

contends that it articulated legitimate, nondiscriminatory reasons for

selecting another individual after complainant failed to report to work.

The agency notes that complainant acknowledged that he failed to contact

the El Paso District Office to inform his supervisor that he would not be

reporting to work on August 3, 1998, due to an ear infection. The agency

states that the Administrative Officer asserted that complainant never

communicated with them about why he failed to report for duty or whether

he intended to report for duty. The agency notes that telephone records

show that complainant did not call the Denver office until August 10,

1998. The agency further states that it was under the impression that

complainant declined the job offer based on complainant's conversation

with the Personnel Management Specialist.

The agency asserts that complainant did not provide sufficient evidence

to support his claim that the agency's proffered reasons are pretext

for discrimination. The agency notes that the AJ concluded that

complainant brought up the issue of his disability after the District

Director inquired about the gaps in his work history. Further, the

agency reiterates the AJ's statement that it is difficult to understand

complainant's belief that he was discriminated against given that he

was selected for the position. The agency notes that the AJ found that

the overwhelming preponderance of the evidence showed that complainant

made no attempt to obtain an extension of the August 3rd reporting date.

Further, the agency reiterates the AJ's conclusion that the agency held

the job open for about three weeks before it filled the position.

Applying the standards set forth in McDonnell Douglas Corp. v Green,

411 U.S. 792 (1973), the Commission agrees with the agency that

complainant failed to establish by a preponderance of the evidence that

the agency's articulated reasons for its actions were a pretext for

discrimination. 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 she 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 Commission finds that the agency

has articulated legitimate, nondiscriminatory reasons for its actions.

Consequently, we will dispense with an examination of whether complainant

established a prima facie case with respect to the above cited issues

and review below, the reasons articulated by the agency for its actions

as well as complainant's effort to prove pretext.<1>

We find that the arguments presented by complainant do not establish,

by a preponderance of the evidence, that the agency's stated reasons

for its actions were pretextual. With regard to the questions that

allegedly referenced complainant's disability, we find that although

certain questions may have been inappropriate, the fact that complainant

was selected for the Administrative Clerk position is strong evidence

that the inquiry was not attributable to a discriminatory intent.

Furthermore, complainant has not shown how he was harmed by such

inquiries. As for the withdrawal of the agency's offer of employment,

we find that complainant has not established that he contacted the

agency either prior to or within a reasonable time after his failure to

report to duty on August 3, 1998. Complainant has not shown that the

agency acted unreasonably and in a discriminatory manner when it selected

another individual for the position after he failed to report for work.

We find that complainant has not shown that the agency's stated reasons

for its actions were pretext intended to mask discriminatory intent.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's decision,

because a preponderance of the record evidence does not establish that

discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

September 19, 2002

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1Because of our disposition, we do not address whether complainant

is disabled.