01A30747
08-06-2003
Guadalupe Gonzalez, Jr., Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Guadalupe Gonzalez, Jr. v. Department of the Air Force
01A30747
08-06-03
.
Guadalupe Gonzalez, Jr.,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A30747
Agency No. LAOJ02018
Hearing No. 360-A2-8681X
DECISION
BACKGROUND
Complainant timely initiated an appeal from the agency's final order
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), Section 701 et. seq., as amended, 42
U.S.C. � 2000e et seq. Pursuant to 29 C.F.R. � 1614.405, the Commission
accepts the complainant's appeal from the agency's final order in the
above-entitled matter. For the following reasons, the Commission affirms
the agency's final order.
ISSUE
Complainant alleged that the agency discriminated against him on the bases
of national origin<1> (Hispanic) and reprisal for prior EEO activity when:
he received a Letter of Concern for not complying with leave procedures
and
the Agency did not offer complainant a temporary detail to the position
of Electric Power Controller.
The record reveals that complainant, a Powered Support Systems Mechanic
at the agency's San Antonio, Texas facility, filed a formal EEO complaint
on January 22, 2002, alleging that management officials discriminated
against him as outlined above based on reprisal for his prior EEO
activity.<2> Complainant named his Second Level Supervisor (SL) as an
alleged discriminating official in this prior complaint. There was a
finding of no discrimination in the prior complaint.
On November 26, 2001, SL presented complainant with a Letter of Concern
and Responsibility for allegedly not complying with leave policies
and procedures. Complainant contends leave policies were unclear and
vague, and that the agency filed the letter as reprisal for his prior
EEO activity. Complainant also asserts that three other individuals have
taken excessive leave and the agency took no action against them. The
agency maintains complainant understood and abused leave procedure.
On December 3, 2001, the complainant became aware that management
offered a white employee in the position of Powered Support System
Mechanics a promotion to the position of Electric Powered Controller.<3>
Complainant alleges that management did not offer him or another Hispanic
employee, both Powered Support System Mechanics, opportunity for detail
and promotion to the same position. Complainant also alleges that his
training is substantially hindered because management assigns him work
which is mostly cleaning and labor intensive, whereas management directs
the white employees to more advanced technical tasks. The agency asserts
that it considered every employee for the position, and granted the
promotion to the most qualified individual.
After the agency's investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). On or about August 19, 2002,
the parties were notified by the AJ of the intent to issue findings and
conclusions without a hearing in this case. The complainant and agency
had an opportunity to make additional submissions for the purpose of
determining whether there was a genuine issue of material fact, and
neither party made an additional submission.
The AJ issued findings and conclusions without holding a hearing after
her determination that the material facts were not in genuine dispute.
29 C.F.R. � 1614.109(e) . In the AJ's decision, dated September 17, 2002,
she concluded that the complainant was unable to show by a preponderance
of the evidence that the agency's articulated reasons for the Letter
of Concern and Responsibility were pretext to mask impermissible
discrimination and reprisal. Regarding the claim of discrimination
and reprisal arising from the detail and promotion issues, she likewise
concluded the complainant was unable to show by a preponderance of the
evidence that the agency's articulated reasons were pretext to mask
impermissible discrimination. The agency's final action implemented
the AJ's decision. On appeal, complainant restates arguments from the
complaint. In response, the agency argues in support of the position
it took in its final action, and requests that we dismiss the appeal.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d
222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases).
First, complainant must 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. McDonnell Douglas, 411 U.S. at
802. Next, the agency must articulate a legitimate, nondiscriminatory
reason(s) for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful,
then the complainant must prove, by a preponderance of the evidence,
that the legitimate reason(s) proffered by the agency was a pretext
for discrimination. Id. at 256.
Complainant claims the agency discriminated against him based on
his national origin. Complainant can establish a prima facie case of
national origin discrimination by showing that he belongs to a protected
group and that he was subject to adverse employment action which, if left
unexplained, raises an inference of discrimination. Burdine, 450 U.S. at
253; Furnco Construction Corporation v. Waters, 438 U.S. 567, 579 (1978).
In the case at bar, the complainant is a member of a protected class,
Hispanic. Second, complainant was not selected for the temporary
detail to Electric Powered Controller position while a white employee
was placed into this position. Complainant establishes a prima facie
case of national origin discrimination.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). Specifically, in a reprisal claim a complainant may
establish a prima facie case of reprisal by showing that: (1) he or
she engaged in a protected activity; (2) the agency was aware of the
protected activity; (3) subsequently, he or she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Hochstadt, 425 F. Supp. at 324;
Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997); Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
Applying the law to the instant case, the complainant engaged in a
protected activity when he filed a prior EEO complaint. Furthermore,
the record indicates that the responsible management officials were
aware of this prior EEO activity. The complainant asserts that because
of his prior EEO activity, the agency issued him a Letter of Concern
and Responsibility. Ultimately, the complainant has established a prima
facie case of reprisal.
In the instant case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Burdine, 450
U.S. 253 (1981). The agency claims it was complainant's pattern of leave
abuse that led to issuance of the Letter of Concern and Responsibility.
SL claims he issued the letter to complainant out of concern because
complainant had no leave balance left on either his annual or sick leave,
and had taken an enormous amount of leave without pay (LWOP). Though
SL does claim knowledge of complainant's prior EEO activity, the
complainant's time and attendance sheet suggests that complainant
rarely scheduled his absences ahead of time and usually left a message
on a recorder regarding his use of sick leave. In addition, the agency
submits both the Letter of Concern and Responsibility, as well as the
complainant's time and attendance sheets, both which demonstrate that
the complainant accrued 220 hours of LWOP in the course of the year.
Furthermore, in his affidavit, SL remarks that he discussed leave
procedures and policy with the complainant. The complainant's
quarterly review documents support SL's affidavit, indicating SL
counseled complainant on leave procedures on two separate occasions
in 2001. Furthermore, the agency maintains complainant expressed
understanding of leave procedure.
As for nonselection to the position of Electric Powered Controller, the
agency claims that it considered every employee in selecting individuals
for the position of Electric Powered Controller. SL asserts that the
temporary detail and promotion at issue went to a co-worker who had
more experience and a greater critical knowledge-base necessary for
the position than complainant. The agency further contends that in
the past, management offered temporary positions to the complainant but
that he declined the offer. The agency suggests that if complainant had
accepted, he would have had training and supervisory experience necessary
for the permanent position. The agency maintains it granted the detail
and promotion to the most qualified individual for the role.
Additionally, the agency maintains that the position of Electric Power
Controller supervises the plant when no other workers are present
and oversees every technical task. Accordingly, the agency contends
it is difficult to approve leave for an individual in this position,
because of the requirements of the position. The agency maintains it
selected an individual for the Electric Power Controller position whom
it considered reliable.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reason is merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996).
The complainant may establish pretext by evidence that, among other
things, a discriminatory motive more likely than not motivated the agency,
or the agency's articulated reasons are unworthy of credence. Burdine,
450 U.S. at 256; McDonnell Douglas, 411 U.S. at 804.
Based on the overwhelming weight of the evidence, the complainant in the
case at bar has failed to prove that the agency's articulated reasons for
its actions were pretext for unlawful discrimination. The complainant's
abuse of leave policy and procedure, based on the record, merits the
issuance of the letter. Complainant is unable to produce persuasive
evidence that he was unaware of and failed to understand leave policy.
On the contrary, complainant appeared to understand the leave policy,
but chose to ignore procedure. Essentially, the complainant presents no
evidence that the agency issued the letter for a discriminatory reason
and is unable to establish pretext.
Complainant is not similarly situated to the individual promoted to
the position at issue. The white individual was more experienced
in supervision and had greater technical knowledge, important in the
Agency's promotion decision. It follows that based on the agency's
articulated need for a Electric Power Controller who is dependable for
all shift requirements, the individual promoted to the role must adhere to
leave policy. Complainant clearly abused leave policies, and he does not
produce evidence that the promoted individual did as well. With regards
to his nonselection, the complainant's allegations of pretext must fail.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
___08-06-03_______________
Date
1 The Commission considers the classification
�Hispanic� to be national origin.
2 The record is inconsistent as to whether the complainant filed a prior
EEO complaint in April 2000 or April 2001.
3 The Investigator's Declaration clarifies that the detail position at
issue was WG-5407-11, rather than a WS-5378-11. The WG-5407-11 is the
position of Electric Powered Controller.