closed0120113614
01-24-2013
Oswaldo Orellana, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Oswaldo Orellana,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120113614
Hearing No. 560-2008-00215X
Agency No. P-2007-0456
DECISION
Complainant filed an appeal from the Agency's June 14, 2011, final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Senior Officer at the Agency's facility in Leavenworth, Kansas.
Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of race (Hispanic).
By letter dated July 30, 2007, the Agency determined that Complainant's formal complaint was comprised of the following claim:
[Complainant was] discriminated against when [he was] not selected for GL-8 [Senior Officer Specialist] position.
At the conclusion of the investigation, the Agency provided Complainant 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 but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that Complainant established a prima facie case of discrimination because he was found qualified for the position but other applicants outside of his protected class were selected. The Agency further found that it articulated legitimate, nondiscriminatory reasons for Complainant's nonselection. Specifically, the Agency stated that the selecting official for the position at issue selected the five selectees based on their superior experience, knowledge, skills, abilities, and collateral activities that distinguished them from the other candidates. The Agency further found that Complainant failed to establish that the Agency's reason for his nonselection was pretext for discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record contains a declaration under penalty of perjury from the selecting official. The selecting official asserted that he reviewed the application of each candidate on the best qualified list and that he selected the five selectees for the reasons set forth below.
Regarding the first selectee, the selecting official asserted that he was promoted to case manager on a temporary basis when he acquired leadership experience, managed inmate affairs, and wrote extensive reports. The selecting official asserted that this selectee also worked previously at the supervisory level in two law enforcement positions outside of the Agency.
Regarding the second selectee, the selecting official noted that he was a member of the Disturbance Control Team (DCT) that was activated and responded to Hurricane Rita in Texas and preparing over 700 inmates for evacuation.
Regarding the third selectee, the selecting official noted that he was also a member of the DCT and responded to Hurricane Rita. In addition, this selectee was also involved in the Transition Initiative Leadership Team.
Regarding the fourth selectee, the selecting official noted that he had prior supervisory experience in a state correctional facility where he trained staff, assigned and evaluated work, and directed operations. In addition, this selectee served as an instructor of use of force procedures during Annual Refresher Training.
Regarding the fifth selectee, the selecting official noted that he had prior experience at a supervisory level in a private correctional facility and that he served as a member of the DCT.
The selecting official asserted that he did not select Complainant because his experience and skills did not place him above the five candidates that were selected.
The Commission finds that Complainant failed to establish that the Agency's articulated reasons for his nonselection were pretext for discrimination. Upon review of the record, we find that Complainant failed to show that his qualifications for the position were plainly superior to the selectees' qualifications or that the Agency's actions were motivated by discrimination. See Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995).
Accordingly, the Agency's final decision finding no discrimination 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
January 24, 2013
Date
2
0120113614
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113614