Agustin Casarez, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJun 1, 2001
01A10673 (E.E.O.C. Jun. 1, 2001)

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