0120072959
01-27-2010
Humberto Ornelas, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (U.S. Mint), Agency.
Humberto Ornelas,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
(U.S. Mint),
Agency.
Appeal No. 0120072959
Agency No. MINT-04-0714-F
DECISION
Complainant appeals to the Commission from the agency's decision dated May
2, 2007, finding no discrimination. In his complaint, dated December 3,
2003, complainant, a former Lead Personnel Specialist, GS-0201-13, Denver
Division, with the agency's Office of Human Resources (OHR), in Denver,
Colorado, alleged discrimination based on age (over 40), national origin
(Hispanic), color (brown), sex (male), and in reprisal for prior EEO
activity when he was forced to retire on September 30, 2003.
Initially, we note that the instant complaint was filed as a mixed
case complaint under 29 C.F.R. � 1614.302(b). Upon completion of the
investigation of the complaint, complainant appealed the case to the
Merit System Protection Board (MSPB). On August 2, 2006, the MSPB,
in Docket Number DE-0752-05-0296-I-2, dismissed the instant matter of
involuntary retirement for lack of jurisdiction and remanded the matter
to the agency for continued processing as a non-mixed complaint under
29 C.F.R. �1614.302(c)(2)(ii). On September 15, 2006, complainant
requested a hearing on his case before an EEOC Administrative Judge
(AJ). Subsequently, complainant withdrew his hearing request and instead
requested a final agency decision without a hearing. The AJ remanded the
matter to the agency for a final decision. Thereafter, the agency issued
its decision concluding that it asserted legitimate, nondiscriminatory
reasons for its action, which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged constructive discharge. Complainant claimed that on
September 4, 2003, his second level supervisor (S2) reassigned him to
the Personnel Operations Division under the direct supervision of the
Division Chief, Personnel Operations Division, OHR, Washington, D.C. (HQ).
His title was changed to HR Specialist; he stayed in the Denver post
of duty; but he was moved out of the HR office to a private office
because his work could involve confidential headquarters information.
On September 16, 2003, complainant submitted an application under the
Voluntary Separation Incentive Program (VSIP) and retired effective
September 30, 2003, with a $25,000.00 separation incentive.
The agency stated that due to the decrease in the demand for the
production of coins, the agency requested and was given approval from OPM
to offer as many as 335 VSIP and Voluntary Early Retirement Authority
(VERA) buyouts to its employees in all departments nationwide in FY
2002 and 2003. The agency also hired a private contractor to perform a
competitive outsourcing study of its OHR nationwide. In June 2003, the
agency attempted to design a Most Efficient Organization (MEO) under the
Office of Management and Budget A-76 guidelines. The agency anticipated
the MEO plan of the OHR would be finalized by January 2004, and that
a final competitive outsourcing decision would be made by May 2004.
The MEO study was never completed and the agency reduced HR staffing
levels through natural attribution without a reduction in force (RIF).
The S2 stated that she made a decision to reassign complainant at issue
because he had been working extensively and had a good rapport with the
HQ office for several years and because his classification and staffing
expertise was needed in HQ. The S2 also stated that complainant
previously told her that he had difficulties with his first level
supervisor (S1) when the S1 bypassed his team leadership and demeaned his
leadership role and that he disagreed with her work assignments. The S2
indicated that complainant also expressed that he would be willing to seek
other options in the HR environment. In this reassignment, stated the S2,
complainant would be working remotely from Denver and not be supervised
by S1, but rather he would be supervised by HQ in Washington, D.C.
With regard to complainant's claim of harassment, the S1 stated that
she did not create a hostile work environment, as he alleged, and she
stated she treated all her staff members fairly. If anything, stated
the S1, complainant created a difficult environment for everyone else in
the office. She received constant complaints from both female and male
employees about complainant's hostility and demeaning attitude toward HR
team members and his unreasonable expectation that all communications had
to go through him as the team lead. The S1, specifically identifying 12
employees who complained about complainant, indicated that she had very
few staff members who did not complain about complainant's behavior.
The S1 also indicated that she and complainant had different leadership
styles.
Despite complainant's contentions, there is no evidence other than
his mere speculation that he would have been subjected to RIF due to
the reassignment. Upon review, we find that complainant failed to
show that his retirement was due to any discrimination on the part of
the agency. We also find that complainant failed to rebut the agency's
legitimate, nondiscriminatory reasons for its actions with regard to
his reassignment.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
1/27/10
__________________
Date
2
0120072959
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013