01A23847_r
10-22-2002
Joe R. Salazar, Complainant, v. Gale A. Norton, Secretary, Department of Interior, Agency.
Joe R. Salazar v. Department of Interior
01A23847
October 22, 2002
.
Joe R. Salazar,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of Interior,
Agency.
Appeal No. 01A23847
Agency No. LLM-01-052
DECISION
Complainant, a Land Surveyor, GS-1373-11, filed a formal EEO complaint
in which he claimed that the agency discriminated against him on the
basis of his race (Hispanic) when an agency employee based in Alaska was
laterally reassigned into a Land Surveyor, GS-12 position in the Arizona
State Office, thus preventing him from competing for the position.
The agency accepted the complaint and conducted an investigation.
Thereafter, complainant requested a final agency decision without a
hearing. The agency issued a decision dated June 13, 2002, wherein it
determined that complainant was not subjected to race discrimination.
It is from this final action that complainant now appeals.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first 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; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
The agency stated that the comparative employee requested a reassignment
from the Alaska Office to the Phoenix Office for personal reasons as his
wife was working out of Los Angeles and his daughter was taking skating
lessons in Phoenix. Complainant's second-line supervisor stated that he
received an e-mail message from the Arizona Associate State Director and
an e-mail message from an agency official in Washington D.C. inquiring
as to whether a suitable position was available for a reassignment.
The second-line supervisor stated that he told these officials that
funds were not available at that time. According to the second-line
supervisor, additional funds subsequently became available and the
reassignment was effected. The agency stated that the comparative
employee was already a GS-12 and therefore could be reassigned to the
vacant Land Surveyor position in Phoenix without competition. We find
that the agency articulated legitimate, nondiscriminatory reasons for
its reassignment of the comparative employee.
Complainant claimed that the agency's reasons are pretextual in light
of the fact that his job experience is more relevant than that of the
comparative employee. According to complainant, the GS-12 position
requires experience as a note reviewer, and he has written hundreds
of notes. Complainant stated that the comparative employee never
reviewed notes as required in the position. Complainant contended that
the state office does not have any Hispanics among its five or six
Land Surveyors. According to complainant, he had informed management
that he was interested in the GS-12 position. Complainant stated that
he had approximately ten years of experience as a GS-11.
Upon review of the record, we find that complainant has not refuted the
agency's reasons for bypassing him for the GS-12 position. The personal
needs and GS-12 status of the comparative employee are legitimate,
nondiscriminatory reasons for the reassignment. Complainant was not a
GS-12 at the time of the reassignment. The GS-12 Land Surveyor position
entailed numerous duties besides reviewing and writing notes. The record
does not support complainant's position that he was more qualified than
the comparative employee for the position. We find that the reassignment
was effected in order to assist a Land Surveyor already at the GS-12
level and it was not effected as a means to avoid placing complainant
in the position. We find that complainant has failed to establish,
by a preponderance of the evidence, that the agency's reasons for the
reassignment of the comparative employee were pretext intended to mask
discriminatory intent.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
action, because a preponderance of the record evidence does not establish
that race 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
October 22, 2002
__________________
Date