01A10673
06-01-2001
Agustin Casarez, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Agustin Casarez v. Department of Treasury
01A10673
June 1, 2001
.
Agustin Casarez,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A10673
Agency No. 98-4148
DECISION
Agustin Casarez (complainant) timely initiated an appeal from the final
agency decision (FAD) concerning his equal employment opportunity (EEO)
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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges he was discriminated against on the bases of his color
(white), national origin (Hispanic), and sex (male) when on March 9,
1998, he received an annual performance appraisal that included lower
ratings in all critical elements.
BACKGROUND
The record reveals that complainant, a GS-592-08 Tax Examining
Assistant/Technician at the agency's Internal Revenue Service, Fresno,
California facility, filed a formal EEO complaint with the agency on
March 28, 1998, alleging that the agency had discriminated against him
as referenced above.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
On September 7, 2000, the AJ issued a Decision Granting Dismissal and/or
Summary Judgment, pursuant to 29 C.F.R. � 1614.107 (a) (7) and 1614.109
(b), because complainant never responded to the Notice of Intent to
Consider Issuance of a Decision Without a Hearing. The AJ gave the parties
until August 29, 2000, to respond in writing to the Notice of Intent to
Consider Issuance of a Decision Without a Hearing. The agency filed a
response on August 29, 2000. Complainant did not filed any response.
Therefore, the AJ dismissed the case for failure to respond. Then,
the agency issued a decision on the merits of the case.
The AJ concluded that even if the case was considered on the merits, the
investigative file did not contain any factual support for complainant's
contention that his lower appraisal ratings were motivated by his sex
and /or national origin. Specifically, the AJ found that evidence that
the female employees in his office received somewhat higher ratings,
by itself, did not create a genuine issue as to pretext.
The agency concluded that complainant failed to establish a prima
facie case of discrimination that his 1998 annual appraisal was lowered
based on color, sex or national origin. Even assuming that complainant
established a prima facie case of discrimination, nevertheless cannot
prove the agency's legitimate, nondiscriminatory reasons for giving his
annual appraisal ratings are merely a pretext for discrimination.
The agency noted that complainant consistently had trouble keeping his
inventory of assigned cases. Also, the agency noted that complainant
expressed concern about inequitable case distribution, in that regard
the agency found that most employees received between 85 to 90 cases
and complainant receiving 87 cases. Further, the agency found that two
employees were assigned more cases than complainant; one was assigned
the same amount as complainant, and three were assigned fewer than
complainant. Other employees were assigned much fewer cases because they
were on leave, were acting managers, or had other duties and assignments
away from the unit.
The agency found that from September 1997 through January 1998,
management had several meetings with complainant concerning the need
for him to improve his performance and exceed all the aspects of his
performance in order for him to attain all 5's on his annual rating.
In memoranda and meetings to address complainant's concerns about his
progress review, management likewise made several suggestions for ways
complainant could improve his performance, including the preparation of
a self- assessment showing areas where he exceeded. The agency noted
that complainant took no substantial steps to improve his performance.
The agency noted that complainant did not display any effort or initiative
to do more than was expected. The agency found that everyone in the
complainant's unit was given an opportunity to take on an additional
tasks and duties, but complainant never volunteered for special projects.
The agency noted that when management reviewed all documentation,
counseling and case reviews to determining the rating for each aspect
in complainant's annual appraisal, they found that complainant did not
perform at a level that supported the �exceeded� rating.
ANALYSIS AND FINDINGS
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. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgment is proper when �material facts are not in genuine dispute.�
29 C.F.R. � 1614. 109 (g). Only dispute over facts that are truly
material to the outcome of the case should preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes
over facts that might affect the outcome of the suit under the governing
law, and not irrelevant or unnecessary disputes, will preclude the entry
of summary judgment). For example, when a complainant is unable to set
forth necessary to establish one essential element of a prima facie case,
a dispute over facts necessary to prove another element of the case would
not be material to the outcome. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986). EEOC MD-110, at 7-15 November 9, 1999. The Commission will
apply a de novo standard of review when it reviews an AJ's decision to
issue a decision without a hearing pursuant to 29 C.F.R. � 1614.109 (g).
See, EEOC MD-110, at 9-16.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were motivated
by discriminatory animus toward complainant's color (white), national
origin (Hispanic), and sex (male). Complainant failed to produce
sufficient evidence that would raise a genuine issue as to whether
the agency's reasons for its actions were pretext for discrimination.
Complainant failed to present evidence that would establish he deserved
higher ratings in all element. The agency established that complainant's
did not prove that he exceeded in those aspects that he received lower
ratings, and complainant did not rebut the agency.
Despite the AJ's finding to the contrary, a party's failure to respond
to the Administrative Judge's notice of intent to issue a decision
without a hearing, does not warrant dismissal of the case, therefore
we disagreed with the AJ's decision to dismiss the case. See Dixon
v. Department of the Navy, EEOC Appeal No. 01996069 (June 6, 200).
Rather, the Administrative Judge may, if appropriate, proceed to issue
a decision without a hearing, based solely on the information contained
in the record and submitted by the parties to date.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final 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
June 1, 2001
Date