0120070793
08-12-2008
Francisco Moreno, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Francisco Moreno,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120070793
Hearing No. 510-2006-00086X
Agency No. TD 04-2623
DECISION
On November 27, 2006, complainant filed an appeal from the agency's
October 27, 2006 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Revenue Officer, GS-1169-12, at the agency's facility in Plantation,
Florida.
On September 8, 2004, complainant filed an EEO complaint alleging
that he was discriminated against on the bases of national origin
(Hispanic/Cuban), sex (male), and age (66) when on June 29, 2004,
he received a lowered annual evaluation rating from his Manager for
the period ending April 30, 2004. The record reveals that complainant
received a rating of 3.8 which was between "Exceeds Fully Successful" and
"Fully Successful". Previously, complainant received an overall rating
of 4.3 for the period ending April 2002, and a 4.2 for the period ending
April 30, 2003.
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. Over the complainant's objections, the AJ assigned
to the case granted the agency's July 27, 2006 Motion for a Decision
Without a Hearing and issued a decision without a hearing on October
11, 2006.
The AJ found that complainant failed to establish a prima facie
case of discrimination under the alleged bases. The AJ stated that
complainant failed to show that similarly situated individuals were
treated differently. The AJ noted that three of the comparisons were male
and one was female. The AJ further noted that complainant was the oldest
of the comparisons by several years but that all of the comparisons were
members of the same age group as complainant. Additionally, complainant
was the only Hispanic/Cuban individual among the relevant group.
The AJ reasoned that the history of the ratings from 2002 under the
prior rater to 2004 under the current rating official did not reflect
that complainant had been treated differently. According to the AJ,
all of the Revenue Officers rated by the prior Manager received higher
overall ratings than complainant for the rating period ending April
30, 2002. The AJ observed that the current Manager lowered the ratings
of all of his employees except for two for the years of 2003 and 2004.
The AJ noted that complainant received the same rating as one comparison
in 2003 and higher ratings than two other comparisons in 2003. The AJ
noted as to the year ending April 30, 2004, that complainant received
the same rating as a comparison significantly younger than him.
Assuming arguendo, that complainant had established a prima facie case
of discrimination, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its rating of complainant. According to
the Manager, he based the rating on his personal observations and work
reviews. The Manager stated that complainant's performance did not
warrant a rating of "Exceeds" in the areas of documentation, planning
and scheduling, thus his overall rating was lower from the prior year.
The AJ found that complainant failed to show that these reasons are not
true or that the alleged bases were factors in his rating.
The agency subsequently issued a final order implementing the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal, complainant contends that the AJ erred by not affording
him a hearing. Complainant maintains that the AJ did not take into
consideration the data presented in the report of investigation.
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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.
29 C.F.R. � 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
For purposes of analysis, we shall assume arguendo, that complainant
established a prima facie case of national origin, age and sex
discrimination with regard to his overall rating of 3.8 for the period
ending April 30, 2004. We find that the agency articulated legitimate,
nondiscriminatory reasons for its action. The agency explained that
complainant was issued the rating based on performance not warranting
a rating of "Exceeds" in the areas of documentation, planning and
scheduling. The Manager stated that his evaluation was derived from
personal observations and work reviews. Complainant has failed to refute
the agency's position that his performance in the aforementioned areas
did not warrant a higher rating. We find that complainant has not shown
that the agency's action reflected animus on the basis of his national
origin, age or sex.
The agency's final order finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 12, 2008
__________________
Date
2
0120070064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070793