Ricardo Ramirez, Complainant,v.Thomas J. Ridge, Secretary, Department of Homeland Security<1>, Agency.

Equal Employment Opportunity CommissionDec 29, 2003
02A20005 (E.E.O.C. Dec. 29, 2003)

02A20005

12-29-2003

Ricardo Ramirez, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.


Ricardo Ramiez v. Department of Homeland Security

02A20005

December 29, 2003

.

Ricardo Ramirez,

Complainant,

v.

Thomas J. Ridge,

Secretary,

Department of Homeland Security<1>,

Agency.

Appeal No. 02A20005

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's Step 3 grievance decision in the above-entitled

matter. Complainant, a Special Agent in the Miami District Office of

the agency's Immigration and Naturalization Service, alleged that the

agency had discriminated against him on the bases of sex (male) and

reprisal for prior EEO activity with regard to his supervisor's conduct

toward him. The main thrust of the grievance was that based on his sex

and in reprisal for having complained to his supervisor's superiors,

complainant received promotion potential evaluations (identified as Forms

OCORS/G-610/G-610A) that did not comport with, and were lower than, his

performance reviews. Complainant also alleged harassment based on sex,

in that a female Special Agent received more favorable treatment with

regard to her assignments than did male Special Agents in the same office.

Pursuant to the analysis set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), to establish a claim of discrimination, complainant

must establish a prima facie case of discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. at 802; see also Furnco Construction

Corp. v. Waters, 438 U.S. 567, 576 (1978). This means that complainant

must present a body of evidence such that, were it not rebutted, the trier

of fact could conclude that unlawful discrimination did occur. The burden

then shifts to the agency to articulate a legitimate, non-discriminatory

explanation for its action. Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). In this regard, the agency need only produce

evidence sufficient "to allow the trier of fact rationally to conclude"

that the agency's action was not based on unlawful discrimination.

Id. at 257. Once the agency has articulated such a reason, the question

becomes whether the proffered explanation was the true reason for the

agency's action, or merely a pretext for discrimination. St. Mary's

Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the burden

of production, in other words, "going forward," may shift, the burden

of persuasion, by a preponderance of the evidence, remains at all times

on complainant. Burdine, 450 U.S. at 256.

Where, as here, the agency has already articulated a legitimate,

non-discriminatory explanation for its actions, the Commission's analysis

need not focus on the establishment of the prima facie case. Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The inquiry conducted pursuant to the grievance, as documented in the

record, revealed that the evaluation forms identified by complainant are

intended and are used by the agency to evaluate potential for future

performance in higher level work, not past performance in a specific

position (for which, at the time, the agency would utilize Form DOJ

522). Accordingly, appraisals set forth on the two forms may differ.

Complainant has adduced no evidence in support of his contention that

the Forms OCORS/G-610/G-610A should have reflected his past performance

in his particular position rather than his generic potential performance

in a higher position.

With respect to complainant's allegation of harassment, the Commission

notes that harassment of an employee that would not occur but for

the employee's race, color, sex, national origin, age, disability,

or religion is unlawful if it is sufficiently patterned or pervasive.

McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). However, in

order for harassment to be considered conduct in violation of Title VII,

it must be pervasive. Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th

Cir. 1987). The conduct in question is evaluated from the standpoint of

a reasonable person, taking into account the particular context in which

it occurred. Highlander v. K.F.C. National Management Co., 805 F.2d 644

(6th Cir. 1986).

The grievance inquiry did not substantiate complainant's harassment

allegations, nor did he come forward with evidence to do so. The record

reflects for example, that case assignments were dictated from higher

authority than complainant's immediate supervisor, and that all Special

Agents were subject to the same guidelines.

After a review of the record in its entirety, it is the decision of the

Equal Employment Opportunity Commission to affirm the Step 3 grievance

decision, because a preponderance of the record evidence 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

December 29, 2003

__________________

Date

1The grievance at issue originally was filed against the Department of

Justice, then the parent agency of the Immigration and Naturalization

Service (INS). During the pendency of these proceedings, the INS

relocated to the Department of Homeland Security.