0120090749
05-20-2011
Jorge Camero, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Jorge Camero,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120090749
Hearing No. 570-2008-00309X
Agency No. DOS-F-038-07
DECISION
Complainant filed an appeal from the Agency’s final order dated November
13, 2008, finding no discrimination with regard to his complaint.
29 C.F.R. § 1614.405(a). For the following reasons, we AFFIRM the
Agency’s final order.
BACKGROUND
In his complaint, dated January 24, 2007, Complainant, a Facilities
Maintenance Manager, FS-04, alleged discrimination based on national
origin (Hispanic-Mexican) when he received a “low-rank” from the
2006 Foreign Service Selection Board (Selection Board); and the Spring
2007 Foreign Service Specialist Tenuring Board (Tenuring Board) denied
his tenure. Upon completion of the investigation of the complaint,
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On September 17, 2008, the AJ issued a decision without holding a hearing,
finding no discrimination. The Agency’s final order implemented the
AJ’s decision.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal
and evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor.
Id. at 255. An issue of fact is “genuine” if the evidence is such
that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material”
if it has the potential to affect the outcome of the case.
The Commission finds that grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. Moreover, despite
Complainant’s contentions on appeal, we find the record was fully
developed. In this case, the AJ determined that, assuming arguendo
that Complainant had established a prima facie case of discrimination,
the Agency articulated legitimate, nondiscriminatory reasons for the
alleged actions. The Agency stated that at the relevant time period,
Complainant was a member of the Foreign Service Specialist Career
Candidate Program. The Agency noted that members of the program,
including Complainant, received limited non-career appointments of four
years and its candidates were reviewed annually by their supervisors.
The Agency further noted that after two years of service, candidates were
reviewed by the Selection Board and the Tenuring Board. The Selecting
Board reviewed candidates for promotion and were required to “low
rank” five percent of candidates in competition groups of twenty
or more. The Tenuring Board made recommendations on tenure.
The Agency stated that Complainant received two performance evaluations
during his first assignment (from December 31, 2003, to July 10, 2005)
to Stockholm, Sweden. Complainant’s first and second supervisors
did not recommend him for tenure. The Agency indicated that based
on the supervisors’ evaluations, including Complainant’s lack of
operational effectiveness, abrasive style, and lack of responsiveness
to his supervisors, the 2005 Selection Board issued a “low ranking
statement” to Complainant. In the fall of 2005, the Tenuring Board
decided to defer its decision to consider Complainant for tenure until
its next review.
In 2006, Complainant received another low ranking statement from the
2006 Selection Board, at issue. Specifically, the Selection Board noted
that Complainant’s performance was less competitive compared to other
ranking candidates and he seemed to have substantial difficulty in his
managerial style, his communications, and his interpersonal relationships
with peers and subordinates. The Tenuring Board considered Complainant
for tenure again in the fall of 2006, and determined that as a result
of concerns about leadership and management skills, it could not make
a definitive assessment and recommended Complainant receive a third
review. Since July 31, 2006, Complainant was assigned to Guatemala
City and his supervisor at that post did not recommend him for tenure
in his performance evaluation dated February 20, 2007, due to his lack
of interpersonal skills and team-building skills. On April 27, 2007,
Complainant was notified that the Spring 2007 Tenuring Board did not
recommend him for tenure. The Agency indicated that Complainant’s
appointment, thus, expired on July 12, 2007.
The AJ determined and we agree that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for its decision to
low rank and to not recommend Complainant for tenure. We find that
Complainant failed to provide any evidence that these reasons were a
pretext for discrimination or the Agency’s actions were motivated by
discrimination as he alleged.
CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
5/20/11
__________________
Date
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0120090749
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090749