01A11727
11-05-2002
Juan B. Ciuro, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Juan B. Ciuro v. Department of Veterans Affairs
01A11727
November 5, 2002
.
Juan B. Ciuro,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11727
Agency No. 97-2071
DECISION
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Police Chief, GS-11, at the agency's Lyons New Jersey Medical Center.
In September 1996, an Inspector for Field Operations was brought in to
conduct an audit of the department under complainant's command. At the
conclusion of the audit, the Inspector issued a report, dated October 21,
1996, that was critical of complainant's performance as Police Chief.
As a result of this highly critical report, complainant was subject to
several personnel actions and later resigned, effective December 31, 1996,
under the agency's voluntary separation incentive program. Believing he
was a victim of discrimination, complainant sought EEO counseling, and
subsequently filed a formal complaint on December 9, 1996, alleging that
he was discriminated against on the basis of race (Hispanic) when:
(1) on or about September 10, 1996, he was detailed from the position
of Police Chief to that of Patrolman;
on or about November 15, 1996, he was asked to accept a voluntary
downgrade for Police Chief, GS-11, to Patrol Officer, GS-6;
he received an interim progress review on or about November 15, 1996,
stating that his performance �needs improvement to be Fully Successful
or better;�
he was subject to adverse working conditions when he was required
to turn in his badges and identification cards, forced to remove his
belongings from the Chief's office and the lock was changed, required
to watch sixty or more hours of training videos during which he was
allegedly required to get permission to go to the bathroom, he was not
issued a new police identification card, and he was not given a locker;
on the bases of race and reprisal for prior protected EEO activity he
was telephoned at home on or about November 22, 1996, and allegedly
harassed about a sick leave request; and
on the bases of race and reprisal he was constructively discharged
effective December 31, 1996.<1>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
that he was subjected to a hostile work environment as the actions
alleged do not constitute unlawful harassment under Title VII, and that
complainant's claims were better analyzed as allegations of disparate
treatment. The FAD found that complainant failed to establish a prima
facie case of reprisal as complainant failed to show that he had engaged
in any protected EEO activity of which the alleged responsible management
officials were aware. The FAD also found that while complainant failed
to establish a prima facie case of race discrimination, it nonetheless
articulated legitimate, nondiscriminatory reasons for its actions
which complainant did not show were mere pretexts for discriminatory or
retaliatory animus. Specifically, the agency stated that deficiencies in
complainant's performance as Police Chief necessitated his removal from
that position and his resulting detail to the position of Patrolman.
Similarly, the agency found that these deficiencies were the basis
for the rating issued in the November 15 progress review. The FAD also
concluded that complainant was not constructively discharged, and instead
voluntarily resigned from his position.
On appeal, complainant contends that he was subject to a hostile
work environment, as a result of which he was forced to resign from
his position, that the findings of the Inspector in the October 21
report were false, and that the agency failed to articulate legitimate,
nondiscriminatory reasons for its actions. The agency requests that we
affirm its FAD.
Complainant has alleged claims of both disparate treatment and hostile
work environment harassment. 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).
Here, the Commission finds that, assuming, arguendo, complainant
established a prima facie case of race and reprisal discrimination, the
agency articulated legitimate, nondiscriminatory reasons for its actions.
While we note that complainant refuted the content of the October 21,
1996, report, we find that he has not established, by a preponderance of
the evidence, that the findings in the report or the agency's reliance
on those findings as the basis for the actions at issue was motivated
by a retaliatory animus or discrimination based on complainant's race.
As for complainant's contention that he was subject to a hostile work
environment, we note that harassment of an employee that would not occur
but for the employee's race, color, sex, national origin, age, disability,
religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. United States Postal Service, EEOC
No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). Because complainant has failed
to show that he was subjected to the alleged discriminatory actions at
issue on the basis of his race or protected EEO activity, he failed to
establish that he was subjected to prohibited harassment. See Bennett
v. Department of the Navy, EEOC Request No. 05980746 (September 19,
2000); Applewhite v. Equal Employment Opportunity Commission, EEOC Appeal
No. 01994939 (April 6, 2000); Wolf v. United States Postal Service, EEOC
Appeal No. 01961559 (July 23, 1998); EEOC Guidance on Investigating,
Analyzing Retaliation Claims, No. 915.003 (May 20, 1998).
Finally, to make a case of constructive discharge, complainant must
show that: (1) a reasonable person in his position would have found
working conditions intolerable, (2) conduct that constituted a prohibited
discriminatory act created the intolerable working conditions, and (3)
his resignation resulted from the intolerable working conditions. Taylor
v. Army and Air Force Exchange Service, EEOC Request No. 059600630
(July 20, 1990). In this case, we again find that because complainant
failed to establish that the challenged conduct creating the allegedly
intolerable working conditions was based on prohibited retaliation or
discrimination, the FAD properly found that complainant's resignation
was not a constructive discharge.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
November 5, 2002
__________________
Date
1 The Merit Systems Protection Board (MSPB) has initial jurisdiction
over mixed case complaint allegations which allege discrimination based,
among other things, on race and reprisal with regard to a constructive
discharge if the MSPB finds a resignation was indeed involuntary
(5 C.F.R. � 1201.3). Following a hearing, an MSPB Administrative
Judge issued an initial decision, dated April 29, 1999, determining
that complainant's resignation was voluntary and the MSPB therefore
lacked jurisdiction. Complainant's petition for review was denied.
See MSPB No. NY0752980344-I-1 (October 18, 1999). The agency then
resumed processing the instant complaint as a non-mixed case (29 C.F.R. �
1614.302(c)(2)(ii)).