0120092769
04-13-2011
Erick Babilonia, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Animal and Plant Health Inspection Services), Agency.
Erick Babilonia,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120092769
Hearing No. 570-2008-00466X
Agency No. APHIS-2007-00919
DECISION
Complainant filed an appeal from the Agency's May 20, 2009 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
During the period at issue, Complainant worked as a Foreign Services Officer (FSO) at the Agency's Animal and Plant Health Inspection Service (APHIS) International Services Branch (IS).
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Puerto Rican), religion (Mormon), and in reprisal for prior protected EEO activity.
By letter dated November 23, 2007, the Agency accepted Complainant's formal complaint for investigation and determined that the formal complaint was comprised of the following claim:
On June 20, 2007, [Complainant] learned that he was the only employee, among the APHIS, IS employees, who had been transferred to the Department of Homeland Security, who was not reinstated into his former APHIS, International Services position.
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. However, the AJ issued an Order of Dismissal of Hearing Request (Dismissal Order) dated February 5, 2009. Therein, the AJ dismissed Complainant's hearing request and remanded the formal complaint to the Agency.
The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination. The Agency found that assuming arguendo that Complainant established a prima facie case of discrimination and/or retaliation, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency stated that two employees returned to IS from DHS pursuant to an administrative grievance settlement. The Agency further asserted that Complainant was not a party to this administrative grievance. The Agency found that Complainant failed to establish that the Agency's reasons for its actions were pretext for discrimination and/or retaliation.
CONTENTIONS ON APPEAL
Complainant, on appeal, sets forth that he has met various procedural requirements. Specifically, Complainant states that he timely contacted an EEO Counselor and that he has set forth an actionable claim.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
Dismissal of Complainant's Hearing Request
We note that an AJ has broad discretion in the conduct of a hearing under EEOC regulations. See 29 C.F.R � 1614.109; see also EEOC Management Directive 110 (MD-110), Chapter 7, at 9-10 (1999). In the AJ's Dismissal Order, she provides a lengthy analysis that she is dismissing Complainant's hearing request for failure to cooperate in the discovery process and failure to abide by the Orders of the AJ. Upon review of the record, we do not find that the AJ abused her discretion when she dismissed Complainant's hearing request.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Agency articulated a legitimate, nondiscriminatory reason for its actions. The record contains an affidavit from the Deputy Administrator (DA) of IS. Therein, DA asserts that two former FSOs that were transferred to DHS brought a case before the Department of State Foreign Service Grievance Board (DOS FSGB). DA further asserts that this matter was subsequently brought before the DOS Foreign Service Retirement Board (FSRB). DA states that this matter was handled by the Agency's Office of General Counsel. Finally, DA states that the settlement included a provision that the two former FSO employees who brought grievance be returned to IS.
The record also contains an affidavit from Deputy Director (DD) of IS. DD asserts that two employees were returned to IS as part of an administrative settlement handled by the Agency's Office of General Counsel. Complainant, in his affidavit, acknowledges that two former FSOs filed a complaint with the FSRB.
Complainant has not established that the Agency's articulated reason was pretext for discrimination. The record is devoid of evidence that Complainant was part of the grievance before the FSGB. In addition, while Complainant, on appeal, asserts that his formal complaint meets various procedural requirements, as set forth above, the Agency issued a decision on the merits (and did not dismiss his complaint on procedural grounds).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
April 13, 2011
__________________
Date
2
0120092769
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092769