0120073885
03-05-2008
Francisco A. Tomei Torres, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Francisco A. Tomei Torres,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120073885
Hearing No. 410200600312X
Agency No. CDCATSDR019905
DECISION
On September 12, 2007, complainant filed an appeal from the agency's
August 1, 2007, final order 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 order.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Minority Health Program Specialist at the agency's Centers
for Disease Control, Agency for Toxic Substances and Disease Registry,
Office of the Director, Division of Health Education and Promotion,
Program Services Branch, Atlanta, Georgia. On April 27, 2005, complainant
filed an EEO complaint alleging that he was discriminated against on
the bases of national origin (Hispanic) and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On January 28, 2005, complainant was notified that the position of
Environmental Health Scientist, HHS-CDC-T2-2004-0527, GS14, (the position)
for which he had applied had been cancelled;
2. The position was written so that a non-Hispanic employee would qualify
for it; and
3. Complainant was not selected for a detail to the position of
Environmental Health Specialist, which complainant felt to be his old
position prior to his transfer out of the Office of the Director.
The agency initially dismissed the complaint and complainant appealed.
In a decision dated December 20, 2005, the Commission remanded the case
for an investigation. 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).
Complainant timely requested a hearing and following the hearing the AJ
issued a decision on June 20, 2007. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged.
Specifically, the AJ found that, as regards issue 1, the nonselection
claim, complainant failed to establish a prima facie case because no
selection was made for the position in question. As regards claim 2,
the position-description claim, complainant argues that the position
description included a requirement that the successful candidate possess
a background in toxicology in order to benefit a non-Hispanic candidate.
The AJ found that complainant established a prima facie case but further
found that the agency articulated a legitimate, nondiscriminatory reason
for its action, namely that "because of a new understanding that to help
minorities who were being exposed to toxic chemicals, those treating them
needed an in depth knowledge of toxicology." AJ's Decision, p. 5. The AJ
further found that complainant failed to establish that the agency's
articulated reason was a pretext to mask intentional discrimination.
As regards claim 3, the detail claim, the AJ found that complainant failed
to establish a prima facie case of National Origin discrimination because
the selecteee was of the same National Origin as complainant, and failed
to establish a prima facie case of reprisal because the Selecting Official
for the detail was unaware of complainant's EEO activity. The AJ further
found that, assuming arguendo that complainant established a prima facie
case, the agency articulated legitimate, nondiscriminatory reason for
its action, namely that complainant failed to follow the application
instructions. See id., p. 12. Finally, the AJ found that complainant
failed to establish that the agency's articulated reason was a pretext
for discrimination. In addition, the AJ found that complainant failed
to provide any evidence of systemic discrimination to support a class
action complaint. See id., pp. 9-10.
On appeal, complainant argues that the AJ did not permit him to present
all his claims and evidence. Specifically, complainant contends that
he was not permitted to present his claim of systemic discrimination at
the hearing, and complainant disputes various decisions made by the AJ
during the hearing.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Following a review of the record, we find no reason to disturb the
agency's Final Order. As regards claim 1, complainant does not appear
to dispute the fact that the position was cancelled and no selection
was made. He has thus failed to show he incurred a present harm or
loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). As regards claim 2, the
position description claim, the selecting official (SO 1: African
American) testified that "I needed someone with specific expertise
within the area of toxicology," Hearing Transcript (HT), pp. 96-97,
and "we were looking at issues around what about low dosage, what about
multiple dosage, what about children versus adults, what about seniors
versus children, what about some folk were medically ill versus -- those
were issues that were toxicological issues and medical issues. . . .
Somebody who had toxicological expertise - that would have been
ideal - who understood that in the context of the environment. That
would be the ideal person" HT, p. 102. Complainant asserts that the
toxicology requirement was included in order to benefit an African
American candidate with a toxicology background. We note, however,
that when the AJ asked complainant if he had any evidence or witnesses
to corroborate such a claim, complainant testified "no." HT p. 45.
We therefore find complainant has not met his burden of establishing,
by a preponderance of the evidence, that the agency's articulated reason
for its action is a pretext for discrimination.
As regards claim 3, the record shows that a Management Official (RMO:
African American) testified that the candidates were asked to submit
a one-page application, see HT p. 133, but that complainant failed to
"follow the instructions that were asked on the announcement," id,
p. 135, instead submitting an application that was "considerably more
than one page" id., thereby creating "a lot more work" id., for the
selecting official. Complainant has not addressed this contention,
nor has he presented any evidence of pretext. We therefore discern no
basis to disturb the AJ's decision.
Finally, as regards complainant's contention that the AJ refused to
hear his arguments in support of a claim of systemic discrimination, as
well as other rulings by the AJ during the hearing, we note initially
that AJ's have broad authority to regulate the conduct of a hearing,
limit the number of witnesses, exclude persons from the hearing, and
exclude irrelevant or repetitious evidence. See 29 C.F.R. 1614.109(e).
The AJ states in her decision "complainant also raised allegations of
disparate impact. He stated that there was systemwide discrimination
against Hispanics. However, he never pursued a class action claim even
after the judge provided him with the specific information needed to
pursue this claim. At the hearing, Complainant was not able to provide
any evidence of systemwide discrimination other than his own speculation."
AJ's Decision, pp. 9-10. A review of the record shows that complainant's
contention of systemic discrimination amounts to a general impression
that Hispanics are discriminated against. However complainant has not
identified any agency rule, regulation, or practice that is the subject
of this appeal and that resulted in harm to himself and other members of
his protected class. While he argues that specific factors, such as the
toxicology requirement for the Environmental Health Scientist position
for example, harmed him personally, he has not explained how it harmed
other members of his class. We therefore find no basis to disturb the
AJ's finding in this regard.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
March 5, 2008
__________________
Date
2
0120073885
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073885