01980214
09-27-2001
Guadalupe Lopez, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Guadalupe Lopez v. Department of Housing & Urban Development
01980214
09-27-01
.
Guadalupe Lopez,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01980214
Agency Nos. 93-28, 93-35, 93-48, 95-05
Hearing Nos. 310-97-5120X, 310-97-5121X, 310-97-5122X, 310-97-5123X
DECISION
INTRODUCTION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant filed four complaints in which he claimed that the agency
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e, et seq., and Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791.
The agency consolidated the four complaints, conducted an investigation,
and thereafter referred the matter to an administrative judge (AJ).
The AJ held a hearing and recommended a finding of no discrimination
in all four complaints. The agency subsequently adopted the AJ's
recommendation as its final decision. This appeal followed.
ISSUES PRESENTED
Whether the agency discriminated against complainant on the bases of
national origin (Hispanic), disability (back injury, post traumatic
stress disorder, internal injuries), and reprisal when it failed to
select complainant for a position as an Equal Opportunity Specialist
(EOS) between June 1991 and December 1992 (Complaint No. 93-28);
Whether the agency discriminated against complainant on the bases of
national origin and reprisal when, on unspecified dates, the enforcement
director told the acting supervisor to ask him to return to his desk,
inquired of his whereabouts, accused him of parking in the wrong area,
and accused him of defrauding the government with respect to a travel
voucher (Complaint No. 93-35);
Whether the agency discriminated against complainant on the bases of
national origin and reprisal when, on September 2, 1993, his supervisor
accused him of taking unauthorized leave for an extended lunch and
ordering him to submit a leave slip (Complaint No. 93-48); and
Whether the agency discriminated against complainant on the bases of
national origin and reprisal when, on September 9, 1994, his supervisor
and the fair housing director terminated his temporary appointment
(Complaint No. 95-05).
ANALYSIS
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).
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 or reprisal. 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 each of
the personnel actions at issue. See United States Postal Service Board
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanations for those actions are pretexts for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133 (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). While disbelief of the agency's articulated reasons does
not compel a finding of discrimination as a matter of law, disbelief of
the reasons put forward by the agency, together with the elements of
the prima facie case, may suffice to show intentional discrimination.
Hicks, 509 U.S. at 511; EEOC Enforcement Guidance on St. Mary's Honor
Center v. Hicks (April 12, 1994); Huerta v. Department of the Air Force,
EEOC Request No. 05930802 (April 1, 1994). With these principles in mind,
we now turn to the four complaints at issue.
93-28
Between May of 1991 and December of 1992, complainant applied for an
EOS position under two vacancy announcements, but was not selected for
either position. He contends that the agency selected candidates with
inferior qualifications. The enforcement division director, who served
as the selecting official, responded that complainant's name was not on
the rosters of best-qualified candidates from which the selections were
made. Moreover, the record establishes that complainant was eventually
hired either near the end of December of 1992 or in January of 1993,
from a displaced employee list forwarded by OPM. On appeal, complainant
maintained that he was entitled to priority consideration, and that his
qualifications were superior to those of the selectees.
The agency has broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Burdine, 450 U.S. at 259;
Vanek v. Department of the Treasury, EEOC Request No. 05940906 (January
16, 1997). Complainant may be able to establish pretext with a showing
that his qualifications were plainly superior to those of the selectee.
Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2,
1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). He has not
done so, nor has he presented any other evidence which contradicts the
testimony of the selecting official and the other officials involved in
the two selections, or which undermines their credibility as witnesses.
Notwithstanding complainant's arguments to the contrary on appeal, we find
that the reasons given by the enforcement division director are supported
by substantial evidence in the record. We therefore concur with the
AJ's findings of no discrimination with respect to Complaint No. 93-28.
93-35
As previously noted, complainant had been hired as a temporary EOS by
January of 1993. The incidents at issue in this complaint occurred
during March and April of 1993. Complainant appears to be arguing that
the incidents complained of constituted discriminatory harassment.
On one occasion, the enforcement director personally observed that
complainant was away from his desk and not doing any work. He instructed
the supervisor on duty to tell complainant to return to his work station.
On several occasions, the enforcement director asked where complainant
was after observing that he was not at his work area. He testified that
he did so only as it related to the agency's business. Several other
employees testified that the enforcement director monitored them as well.
As to the parking incident, complainant testified that the enforcement
director asked him what he had done with a car in a harsh, accusatory
manner and in the presence of several people who were not employees.
The enforcement director denied that he had accused complainant of
anything, and reiterated that all he had asked complainant was where he
had parked the car. Finally, complainant maintains that the enforcement
director threatened to report him to the inspector general concerning
a $7.00-discrepancy in a travel voucher. The enforcement director
denied accusing complainant of defrauding the government, but stated
that complainant did not provide adequate documentation of the expenses
in question.
It is well-settled that harassment in the workplace that occurs because of
membership in a particular group or because of participation in protected
EEO activity violates Title VII. Enforcement Guidance: Vicarious Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, p. 2
(June 18, 1999). To prevail in a harassment claim, complainant must
show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to unwelcome conduct; (3) the conduct complained of was based
on his national origin or previous EEO activity; (4) the conduct had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment;
and (5) there is a basis for imputing liability to the employer. McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999). Although McCleod addressed sexual harassment, the same standards
apply to all types of prohibited harassment. 29 C.F.R. � 1604.11, n.1;
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002, p. 2 (June 18, 1999).
After reviewing the record, we find that none of the incidents, either
singly or collectively, rise to the level of harassment. Unless the
conduct is severe, a single incident or group of isolated incidents
will not be regarded as discriminatory harassment. Backo v. United
States Postal Service, EEOC Request No. 05960227 (June 10, 1996);
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8,
1996); Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
These are merely a group of isolated incidents which appear to be no
more than legitimate exercises of supervisory oversight. Moreover, there
are no indications that the enforcement director treated complainant any
differently than he treated the other employees under his supervision.
We therefore find, as did the AJ, that complainant was not subjected to
unlawful discrimination with respect to any of the incidents described
in Complaint No. 93-35.
93-48
Complainant's supervisor stated that on September 2, 1993, he observed
that complainant and a female co-worker were away from their desks between
11:30 and 1:15. He also testified that complainant had been exhibiting a
pattern of taking extended lunches, which he characterized as an abuse
of leave. The supervisor sent a memorandum to complainant and his
co-worker in which he requested that they take leave whenever they stay
out of the office beyond the lunch hour. There are no indications in the
record that leave was actually charged to complainant or that complainant
was subjected to any disciplinary action as a result of the incident.
Complainant has not presented any documents or testimony showing that
the supervisor's action was based on anything other than his personal
observations of complainant. Accordingly, we agree with the AJ's finding
of no discrimination with respect to Complaint No. 93-48.
95-05
In a memorandum to the regional director dated September 5, 1994,
complainant's supervisor recommended that complainant be terminated
from his position as a temporary EOS. The reason the supervisor gave
for recommending complainant's removal was that complainant's actions
had compromised the agency's relationship with its clients and its
constituencies. In one incident, for example, complainant intervened in a
dispute between another agency employee and her landlord despite the fact
that no fair housing complaint was ever filed. Several months later, the
agency's general counsel reported that complainant had been researching a
case that was already closed. When questioned about why he was pursuing
a closed case, complainant opined that the determination was incorrect,
and stated that he would do something about it. At the same time, the
supervisor received a call from the public housing director, who stated
that complainant had berated a housing authority executive director.
Although one of complainant's co-workers expressed his belief that
complainant had been discriminated against, several others said that
they had no reason to believe that complainant's national origin or
previous EEO activity had played a role in the supervisor's decision to
recommend that complainant be fired. While complainant's appeal offers
an interpretation of the evidence which differs from that of the AJ,
we find that the AJ's findings and conclusions of no discrimination with
respect to Complaint No. 95-05 are supported by substantial evidence in
the record.
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 final agency decision
because the Administrative Judge's ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.
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
_____09-27-01_____________
Date