0120080226
01-19-2010
Orlando Gonzales, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Forest Service), Agency.
Orlando Gonzales,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Forest Service),
Agency.
Appeal No. 0120080226
Hearing No. 551-2006-00145X
Agency No. FS200600286
DECISION
On October 16, 2007, complainant filed an appeal from the agency's
September 10, 2007 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. For the following reasons, the Commission AFFIRMS the
agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a District Ranger at the agency's Bly Forest, Fremont-Winema National
Forest headquarters facility in Lakeview, Oregon.
On June 17, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of national origin (Hispanic)
and in reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when:
1. As of the date of his formal EEO complaint, complainant had not
received a response to his December 10, 2004, request for reassignment
due to hardship; and
2. On December 1, 2003, complainant was not selected for the position
of Deputy District Ranger, GS-12, South Zone, Siuslaw National Forest.
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 requested
a hearing. Over the complainant's objections, the AJ assigned to the
case granted the agency's May 29, 2007 motion for a decision without a
hearing and issued a decision without a hearing on August 8, 2007.
In his decision, the AJ found that claim (2) was untimely. Moreover,
drawing every inference in complainant's favor, the AJ found nothing
in the record showed that complainant's national origin motivated
his supervisor's actions in handling his request for reassignment.
The AJ found that complainant notified his supervisor, S1, verbally
in July 2004 of his request to be reassigned to another position in
a geographical area that had more comprehensive medical services to
assist his wife's medical condition. The AJ noted that S1 responded by
suggesting complainant provide a letter detailing his needs. The AJ
noted that on July 28, 2004, complainant sent S1 an electronic mail
message concerning the need to move to an area with medical specialists
readily available to treat his wife such as the Bend area or larger
cities within the Willamette Valley, including Portland and indicating
he would submit a formal request in writing the following week. The AJ
noted that although complainant did not submit a written request, S1
sent an inquiry to some of the supervisors near Bend, Oregon and to the
Regional Forester and Deputy Regional Forester regarding complainant's
request to relocate due to his spouse's medical needs.
The AJ noted that on September 27, 2004, S1 reminded complainant about
the letter he said he would submit. Complainant responded on October
4, 2004, that he would provide a response that week. The AJ found
complainant did not submit a request at that time.
The AJ noted that in November 2004, S1 sent complainant an electronic
mail message reminding complainant that he had not provided her with the
letter needed. S1 also informed complainant that she wished to speak
to him about applying for a GS-12 EEO Specialist vacancy in Portland,
a city he had previously identified as one of those to which he wished
to relocate. The AJ found complainant did not apply for the GS-12 EEO
Specialist vacancy in Portland.
The AJ found that complainant put his request for reassignment based on
the expressed hardship in writing on December 1, 2004 and requested to be
reassigned to a location in Bend, Willamette Valley, Portland/Vancouver
or Seattle. The AJ noted that on December 3, 2004, complainant sent
S1 an electronic mail message stating he was interested in the Civil
Rights position in Lakeview, Oregon, where he resided. The AJ noted
that it was not disputed that the position in Lakeview, Oregon was not
in area where that could provide the medical services his wife needed;
however, complainant viewed this as an interim detail while attempting
to find a position where he could relocate.
The AJ noted that thereafter, on December 13, 2004, S1 sent an electronic
mail message to the Regional Forester, Human Resources, and to Region
6 Forest Supervisors located on the west side of Cascade Mountains,
explaining complainant's need to relocate and requesting their assistance
in finding a position for him.
The AJ noted that on February 9, 2005, the agency and complaint agreed
to detail complainant as the Acting Civil Rights Program Manager for
the Fremont-Winema National Forest, the position for complainant had
expressed an interest in on December 3, 2004. Complainant began the
detail on March 7, 2005.
The AJ noted that on August 22, 2005, S1 notified complainant of a
GS-12 EEO Specialist Vacancy in Portland to which the agency could
laterally reassign him. The AJ noted that complainant responded that
he was not interested since he was considering retiring in January or
March 2006 and, if he did so he did not want to accept a position that
would require another year of service. Complainant also stated that he
was not interested in the lateral move because it would be a "negative
financial move." Complainant did not retire by March 2006.
The AJ noted that in June 2006, S1 sent complainant an electronic mail
message regarding details located in Region 5 for Civil Rights positions
she expected would be advertised as permanent positions. Complainant did
not apply for any of these details.
The AJ found that S1 advised complainant of several available positions
and offered complainant a detail assignment to a position in which
complainant had earlier expressed an interest. Complainant did not
apply for any of the positions S1 mentioned to him, and ultimately
complainant retired in 2007. The AJ found that S1 assisted complainant
by notifying him of several positions pursuant to his request and that
complainant did not take advantage of S1's assistance. Accordingly,
the AJ found that the material facts were not in dispute and that
complainant had not established that he was treated differently based
on his national origin.
The AJ further found no connection between complainant's prior EEO
activity and the incidents described in the complaint sufficient to form
the basis for complainant's claims based on reprisal. With respect
to complainant's claim of harassment, the AJ found that taking the
agency's actions described in the complaint together, they did not
describe actions either sufficiently severe or pervasive to state an
overall claim of harassment. Accordingly, the AJ found that complainant
did not show that discrimination occurred as alleged in his complaint.
The agency subsequently issued a final order on September 10, 2007.
The agency's final order fully implemented the AJ's finding that
complainant failed to prove that he was subjected to discrimination.
On appeal, complainant claims that S1 expressed a negative attitude
with respect to Hispanic employees which he alleges was clear in the
agency's failure to support employee attendance at the 2008 conference
for National Organization of Professional Hispanic Natural Resources
Conservation Service Employees. Complainant further states that one of
the positions S1 referred to complainant was for a position in Region
V, where complainant has no family and where the cost of living is
significantly higher than in Lakeview, Oregon.
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.
If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we find that the AJ properly issued his decision
without a hearing. We find the material facts are not in dispute.
We note, as did the AJ that complainant contacted an EEO counselor on
February 4, 2005 regarding his non-selection. Complainant had been
notified that he was not selected for the position of District Ranger
in April of 2004. Complainant's EEO contact was thus well beyond the
45-day time limit and that claim was properly dismissed pursuant to 29
C.F.R. �1614.107(a)(2). On appeal, complainant did not provide adequate
grounds for a extending or tolling the time frame.
With respect to claim (1), we find the issuance of summary judgment was
appropriate as there are no genuine issues of material fact. We find
complainant failed to show that the agency's actions were motivated by
discrimination or reprisal.
We further find no material facts remain in dispute regarding
complainant's complaint based on complainant's overall claim of
harassment. We find that the incidents described in the complaint,
either separately, or taken together, do not describe conduct severe or
sufficiently pervasive to state a claim of harassment.
After a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final decision, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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, 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 (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 19, 2010
__________________
Date
2
0120080226
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120080226