0120082914
01-08-2009
Joseph A. Soto, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Joseph A. Soto,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120082914
Hearing No. 471-2006-00027X
Agency No. 2005-19727-FAA-04
DECISION
On June 20, 2008, complainant filed an appeal from the agency's June
3, 2008 final order concerning his equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as an Aviation Safety Inspector, GS-14, at the agency's Detroit
Flight Standards District Office in Belleville, Michigan.
Complainant filed an EEO complaint alleging that he was discriminated
against on the bases of national origin (Hispanic/Mexican) and in reprisal
for prior protected EEO activity.
By letter dated September 8, 2005, the agency accepted complainant's
complaint for investigation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on February 13-14 and July
23, 2007, and issued a decision on May 22, 2008.
At the hearing, the AJ framed complainant's claims in the following
fashion:
Whether the agency discriminated against complainant on the bases of
national origin and in retaliation for his EEO activity when:
A. on or about May 19, 2005, the agency issued complainant a letter
of warning for violating the dress code policy on April 18, 2005;
B. effective May 24, 2005, the agency suspended complainant for
three days;
C. on or about May 2005, the agency issued complainant a poor
performance review;
D. on or about May 2005, the agency denied complainant a full travel
expense reimbursement;
E. on or about May 2005, the agency altered complainant's time and
attendance records so that he did not receive the proper pay compensation
for Sunday, May 8, 2005;
F. on or about May 25, 2005, the agency denied leave to complainant;
and
G. in 2005, the agency took action to delay the processing of
complainant's workers' compensation claim?
During the hearing, complainant withdrew claims (D)-(F). Hearing
Transcript (HT) at 333-336. Therefore, the AJ only addressed the
remaining claims in his decision.
In his decision, the AJ found that complainant failed to establish that
the agency subjected complainant to unlawful discrimination and/or
retaliation. Regarding claim (A), the Letter of Warning (LOW), the
AJ found that the agency articulated a legitimate, nondiscriminatory
reason for its action. Specifically, the AJ stated that "the agency
offered the credible testimony of [complainant's immediate supervisor,
S1] to explain why it issued the [LOW]. [S1] issued the [LOW] for not
adhering to a policy requiring appropriate attire to be [worn] for the
job function." The AJ further found that complainant failed to establish
that the agency's articulated reason was pretext for discrimination.
Regarding claim (B), the suspension, the AJ found that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the AJ found that the agency had concerns about complainant
failing to show for an interview which resulted in unnecessary expense
for the agency. The AJ further found that complainant "presented no
credible and probative evidence to refute the articulated reason."
Regarding claim (C), the mid-year performance review, the AJ found that
the agency articulated legitimate, nondiscriminatory reasons for its
action. Specifically, the AJ noted S1's feedback to complainant which
included "[complainant's] frequent travel to Miami when his work was
elsewhere and [complainant's] failure to travel with his co-workers."
The AJ further found that complainant failed to establish that the
agency's articulated reasons for its action was pretext for discrimination
and/or retaliation. The AJ further found that complainant's claim
pertaining to the mid-year review does not state a claim.
Regarding claim (G), the delay in processing complainant's workers'
compensation claim, the AJ found that this matter was a collateral attack
on the proceedings of the Department of Labor.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the AJ's decision finding no
discrimination is improper. Complainant raises numerous arguments on
appeal. For example, complainant asserts that the AJ should have applied
a direct evidence analysis. Specifically, complainant asserts that at a
Merit Systems Protection Board hearing related to complainant's demotion
"[a named agency employee, E1] testified that while he was waiting
outside the hearing room he heard [a named agency personnel official,
P1] tell other witnesses...that the agency had a communication network
which talked about bad apples in the agency to prevent them from moving to
other regions. This constitutes direct evidence of retaliatory intent."
Regarding claim (B), the suspension, complainant states that various
interview guides do not set forth that applicants who fail to show for
an interview should be issued a letter of warning.1
In response, the agency requests that we affirm its final order.
Specifically, the agency states that complainant, in his brief in support
of his appeal, "mixes 10 [plus] years of facts and issues, blending the
current case law, incorporates snippets of prior litigation and related
affidavits without identifying them clearly, [and] irrelevant statistical
information about the federal workforce..."
ANALYSIS AND FINDINGS
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
As an initial matter, we note that complainant asserts that the AJ failed
to apply a direct evidence analysis; however, upon review of the record,
we find that the record is devoid of direct evidence of discrimination
and/or retaliation with respect the matters addressed herein.2
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. 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 its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (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); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Claim (A)-LOW
The Commission finds that there is substantial evidence in the record
to support the AJ's finding that the agency articulated a legitimate,
nondiscriminatory reason for issuing the LOW. At the hearing, S1
testified that he issued complainant the LOW based on his impression as to
the attire complainant was wearing (shorts and a t-shirt) on duty on April
18, 2005. Hearing Transcript (HT) at 367-368. The record also contains
a copy of the LOW from S1 to complainant dated May 19, 2005. Therein, S1
asserted that complainant on April 18, 2005 came to work wearing shorts,
a tee shirt, and tennis shoes. In addition, the record contains a copy
of an e-mail dated February 2, 2005, prior to the incident in question,
from S1 to various individuals, including complainant. Therein, S1
states that "[p]lease keep in mind that there is no formal dress code,
however the [office] requires appropriate attire for the job function."
The Commission further finds that there is substantial evidence in the
record to support the AJ's finding that complainant failed to establish
that the agency's articulated reason for complainant's suspension was
pretext for discrimination and/or retaliation. Complainant, on appeal
and below, raises various arguments in an effort to establish pretext.
We find that the AJ properly addressed several of these arguments in his
decision. For example, while complainant asserted that other co-workers
were treated differently than him, the AJ noted that "[complainant] has
pointed to no credible or probative evidence that any of his co-workers
under the supervision of [S1] were dress in a manner similar to the way
he was dressed on April 18, 2005."
Claim (B)-Suspension
Regarding claim (B), the Commission finds that there is substantial
evidence in the record to support the AJ's finding that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
At the hearing, an agency official (A1) testified that he received a
call that complainant failed to attend a job interview at the agency's
"Northwest Mountain" location. HT at 387-88. A1 further testified that
the Division Manager of Northwest Mountain wrote an e-mail in which he
voiced his displeasure over complainant's failure to attend the interview
due to waste of government funds.3 HT at 389.
The record also contains a copy of a letter to complainant from S1
dated March 21, 2005. Therein, S1 proposed to suspend complainant.
Specifically, S1 asserted that complainant failed to present himself
for an interview which resulted in unnecessary expense for the agency.
The Commission finds that there is substantial evidence in the record
to support the AJ's finding that complainant failed to establish that
the agency's articulated reason was pretext for discrimination.
Claim (C)-Mid-year Performance
Regarding claim (C), the Commission finds that there is substantial
evidence in the record to support the AJ's finding that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
S1 testified that complainant needed to spend more time on the DC-9
activity. HT at 331-333 . In addition, the record contains a feedback
discussion form. Report of Investigation, Exhibit F25. Therein, S1 raised
various concerns regarding complainant's "interpersonal relations." Id.
The Commission finds that there is substantial evidence in the record
to support the AJ's finding that complainant failed to establish that
the agency's articulated reason was pretext for discrimination.
Claim (G)-Delay in Processing Workers' Compensation Claim
Regarding complainant's assertion that the agency delayed processing
of his workers' compensation claim, we find that the AJ properly found
that this matter failed to state a claim. The Commission has held that
an employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Department of Defense, EEOC
Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal
Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v.
United States Postal Service, EEOC Request No. 05930106 (June 25, 1993).
The proper forum for complainant to have raised his challenges to actions
which occurred during the OWCP proceeding was at that proceeding itself.
It is inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the OWCP process.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
agency's final order implementing the AJ's final decision finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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, D.C. 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
January 8, 2009
__________________
Date
1 The Commission notes that the agency asserts that complainant's
brief in support of his appeal filed on August 25, 2008, is untimely.
The record contains a copy of a letter to complainant dated August 14,
2008, from the Commission's Office of Federal Operations. Therein,
the Commission granted complainant an extension until August 25, 2008 to
file a brief in support of his appeal. Thus, we find that complainant's
brief in support of his appeal is timely.
2 "Direct evidence" may be a written or verbal policy or statement made
by a management official that on its face demonstrates a bias against a
protected group and is linked to the complained of adverse action. See
EEOC Revised Enforcement Guidance on Recent Developments in Disparate
Treatment Theory, No. 915-002 (July 12, 1992).
3 The record contains an e-mail from the Division Manager of Northwest
Mountain dated February 15, 2005. Therein, the Division Manager stated
that complainant failed to show for his interview. In addition, the
Division Manager stated that complainant was the only interview scheduled
for that day and complainant's failure to attend the interview resulted
in additional expenses such as lodging for the panel members.
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0120082914
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120082914