01986751
07-28-2000
Hilario Nagales, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Hilario Nagales v. Department of Agriculture
01986751
July 28, 2000
.
Hilario Nagales,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01986751
Agency No. 960920
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).<1> Complainant alleged that he
was discriminated against on the bases of national origin (Filipino)
and disability (polio) when: (1) he was denied a temporary upgrade to
Secretary, GS-318-5, for a period of two months; and (2) subsequently,
he was not selected for the position of Secretary, GS-318-5, pursuant
to Vacancy Announcement No. PNE-15(96).
BACKGROUND
In a complaint dated September 13, 1996, complainant, then a Program
Support Clerk (Typing), GS-303-4, with the agency's Cargo Operations,
Plant Protection and Quarantine, John F. Kennedy International Airport,
alleged that the agency discriminated against him as delineated in the
above-entitled statement �Issue Presented.� The agency conducted an
investigation, provided complainant with a copy of the investigative
report, and advised complainant of his right to request either a hearing
before an EEOC administrative judge (AJ) or an immediate final agency
decision (FAD). Complainant requested an immediate FAD. On July 30,
1998, the agency issued a FAD finding no discrimination. It is from
this decision that complainant now appeals.
ANALYSIS and FINDINGS
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant to
initially establish that there is some substance to his or her allegation.
In order to accomplish this burden complainant herein must establish a
prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters, 438
U.S. 567, 576 (1978). This means that complainant must present a body of
evidence such that, were it not rebutted, the trier of fact could conclude
that unlawful discrimination did occur. The burden then shifts to the
agency to articulate a legitimate, non-discriminatory explanation for
its action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). In this regard, the agency need only produce evidence
sufficient �to allow the trier of fact rationally to conclude� that the
agency's action was not based on unlawful discrimination. Id. at 257.
Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, �going forward,� may shift, the burden of persuasion,
by a preponderance of the evidence, remains at all times on complainant.
Burdine, 450 U.S. at 256.
Courts have adopted and applied the Title VII burdens of proof, see supra,
to disability discrimination. See Norcross v. Sneed, 755 F.2d 113 (8th
Cir. 1985); Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).
In order to establish a prima facie case of disability discrimination,
complainant must prove, by a preponderance of the evidence, that he was
treated differently than individuals not within his protected group,
or that the agency failed to make a needed reasonable accommodation,
resulting in adverse treatment of complainant. See Sisson v. Helms,
751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846 (1985).
In this case, complainant alleges disparate treatment, but not failure
to accommodate. Presuming for the sake of argument that complainant has
established coverage under the Rehabilitation Act,<2> see 29 C.F.R. �
1630.2(g)-(n), the Commission will proceed to consider the merits of
the complaint.
Temporary Upgrade
The Commission is not persuaded that complainant has established a prima
facie case of either national origin or disability discrimination with
regard to this claim. The record reflects that complainant did perform
certain additional duties, but there is no evidence from which to infer
that the agency's failure to upgrade him for the two-month period in
question was related to his national origin or disability.
Assuming for the sake of argument that a prima facie case was established,
the agency met its burden to explain its actions. The agency explained
that it did not afford complainant a temporary upgrade because he did
not assume all of the duties of the higher-graded position. The agency
explained that complainant did maintain time and attendance records and
answer the telephones, but that four other employees assumed various
duties of the higher-graded position, which included such matters as
ordering supplies, balancing credit card accounts, typing, and filing
reports. The agency also noted that complainant's assumption of the
time and attendance and telephone duties for the two-month period
was recognized with a certificate of merit and a �time off� award.
Complainant has adduced no evidence from which the Commission might
conclude that, more likely than not, the agency was motivated by
discriminatory animus rather than by the explanation set forth above.
Non-Selection
Complainant has established a prima facie case of national origin and
disability discrimination with regard to the non-selection, given that
the record reflects he applied and was qualified for the position, but
was non-selected in favor of an applicant of a different national origin
who does not have a physical disability. The agency, however, explained
that neither of the two applicants, complainant and the selectee, were
interviewed; their qualifications were assessed from the applications
they submitted. The agency further explained that complainant, unlike
the selectee, did not complete and submit the supplemental portion of
the application which dealt specifically with the selection criteria set
forth in the vacancy announcement. The selecting official stated that
he viewed the application as he would a work assignment � the application
submitted by the selectee was �flawless,� while the application submitted
by complainant would have had to be returned for additional work.
This explanation meets the agency's burden, and complainant submitted
no evidence, either with regard to the application process or his
qualifications, from which to conclude that the agency's selection of
the selectee more likely than not was motivated by discriminatory animus.
CONCLUSION
Based upon a careful review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 28, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record does not contain detailed information regarding the
extent of complainant's physical limitations, but does indicate that
complainant's mobility is impaired. Further, the agency finds no fault
with complainant's ability to perform his duties.