0120070008
03-21-2008
Miguel Cruz, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Miguel Cruz,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120070008
Agency No. 06-014-CMS
DECISION
On October 2, 2006, complainant filed an appeal from the agency's August
30, 2006, final decision 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 for the Commission's
de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Teleservice Representative with the Social Security Administration
in Saddlebrook, New Jersey. On October 22, 2005, complainant applied for
a Health Insurance Specialist position with the Department of Health and
Human Services' Centers for Medicare and Medicaid Services in Chicago,
Illinois. On February 19, 2006, complainant received a letter from the
Department of Health and Human Services (hereafter "the agency") informing
him that another candidate had been selected for the position. The agency
selected a non-Peruvian Hispanic female agency employee for the position.
On April 20, 2006, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of race (Hispanic), national origin
(Peruvian), and sex (male) when the agency the failed to select him for
the position of Health Insurance Specialist.
In an investigative affidavit, complainant stated that he believed
that the agency discriminated against him because, after he received
notice of his non-selection, officials at the agency's Human Resources
Center refused to answer his questions about the selection process.
Complainant stated that he believed that the agency pre-selected the
selectee for the position and that the vacancy announcement for the
position "was just a formality."
In an investigative affidavit, the selecting official stated that
the agency was placed under a hiring freeze in November 2005 that
restricted the agency from hiring candidates who were not already
agency employees, and because complainant was not an agency employee,
he and other non-agency employees could not be selected for the position.
The official stated that the selectee was chosen for the position because
of her "proven commodity in terms of her reputation and her law degree"
and her interview performance.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and presentation of proof in a case alleging discrimination is
a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973). First, complainant must 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. Next, the agency must articulate a legitimate,
nondiscriminatory reason(s) for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
We initially note that both complainant and the selectee are Hispanic,
and thus we decline to draw an inference of discrimination based on
being Hispanic. However, we do find that since a non-Peruvian female
was selected, complainant established a prima facie case of sex and
national origin discrimination. We further find that the agency provided
legitimate, non-discriminatory reasons for not selecting complainant for
the Health Insurance Specialist position. Specifically, the selecting
official stated that complainant was not selected for the position because
a hiring freeze implemented after the vacancy was announced restricted
the agency from selecting non-agency candidates for the position.
The selecting official further stated that the selectee was chosen for
the position because of her impressive education, performance evaluations,
and interview performance.
Complainant argues that the agency's explanations are pretextual because
the Human Resources Center refused to answer his questions about the
selection process after he learned of his non-selection. While affidavit
responses from Human Resources personnel indicate that they acknowledge
that they "dropped the ball" on investigating and responding to
complainant's inquiry, we find no evidence that the failure to respond was
motivated by discrimination. With respect to complainant's claim that
the agency pre-selected the selectee, we find that the record contains
no evidence to support this assertion. Consequently, we conclude that
complainant failed to prove that the agency's articulated reasons for
its selection were pretext for unlawful discrimination. Thus, we find
that the agency properly found no discrimination.
CONCLUSION
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that 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
__March 21, 2008________________
Date
e
2
0120070008
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120070008
5
0120070008