01A42184_r
07-29-2004
Richard G. Bornales, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Maritime Administration) Agency.
Richard G. Bornales v. Department of Transportation
01A42184
7/29/2004
.
Richard G. Bornales,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Maritime Administration)
Agency.
Appeal No. 01A42184
Agency No. 6-02-6063
Hearing No. 370-03-X2996
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
The record reveals that complainant, an Inventory Management Specialist at
the agency's San Francisco, CA facility, filed a formal EEO complaint on
September 10, 2002, alleging that the agency had discriminated against
him on the bases of national origin (Filipino), sex (male), and age
(D.O.B. 1948) when:
he was not selected for the position of Ship Operations Assistant, GS-6.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of sex,
age, and national origin discrimination.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. While the AJ noted that
the selecting official (SO) appeared to �choke� when he attempted to
explain the reason for complainant's non-selection, the AJ asserted that
the SO stated that he was concerned that complainant may use Air Force
terminology if he was selected for the position.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination. The AJ stated that the interviews for the subject
position �were conducted as a pro forma gesture in order to legitimize
an otherwise spurious proceeding.� The AJ further stated that the
SO �engineered this scheme to specifically benefit his long time
assistant...and that favoritism was his motivating factor.� However,
the AJ concluded that complainant's arguments that national origin,
sex, and age motivated the decision not to select him for the subject
position are not supported by a preponderance of the evidence.
The agency's final order dated January 9, 2004 implemented the AJ's
decision.
On appeal, complainant, through his attorney, states that the AJ's
finding of no discrimination was improper. Specifically, complainant
states that the agency has failed to articulate a �specific and clear
legitimate reason for not selecting [complainant].� In addition,
complainant asserts that another agency official (A1), who participated
in conducting the interviews along with the SO, had a close friendship
with the selectee and were both of Chinese ancestry which resulted
in the selectee being selected for the subject position. Moreover,
complainant asserts that �the inconsistencies and dramatic lack of
credibility by the agency's employees lead to the conclusion that the
[selectee] was given discriminatory preference.�
In response, the agency requests that we affirm its final order.
Specifically, the agency asserts that complainant has not presented
evidence that the agency's proffered reasons for its actions were a
pretext for discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell McDouglas Corporation 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 Department of Community 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
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The record reflects that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant for the subject
position. The SO asserted �[i]f I had any concern, it was that he
...related a lot of his experience in the Air Force to the function that
would be part of the new job in tracking and reporting on readiness of
the ships, and I had the feeling that he assumed that the same terminology
and same procedure would prevail in Maritime Administration and I wasn't
sure that he would be willing to learn our system as opposed to what he
already knew.� Hearing Transcript (HT), 29.
The Commission further finds that the record supports the AJ's assertion
that the SO preselected the selectee, the SO's long time office assistant,
for the subject position. The record reflects that the SO decided to
restructure the subject position as a GS-6 Career Opportunity Training
Agreement (COTA) position with an upward mobility career ladder to
a GS-12. The record contains a copy of a memorandum from the SO to the
Director of Human Resources dated February 15, 2002 . Therein, the SO
states that he would like to restructure the subject position to a GS-6
COTA position. In addition, at the hearing the SO testified that he
decided to restructure the subject position as a GS-6 COTA position in
order for the selectee to be eligible. HT, 76. In addition, the record
reflects that the SO initially used the selectee's current position
description (PD) in drafting the new PD for the subject position. HT, 62.
While complainant, through his attorney, asserts that A1, who conducted
the interviews for the subject position along with the SO, selected
the selectee due to prohibited reasons under Title VII and the ADEA,
the Commission finds that the record supports the AJ's assertion that
�[t]here is no evidence in the record indicating that [A1] was a willing
participant in the [SO's] scheme.� As noted above, the SO requested
for the subject position to be restructured as a GS-6 COTA position
and utilized the selectee's current PD in drafting the new PD for the
subject position.
The Commission has held that preselection, per se, does not establish
discrimination under Title VII when it is based on qualifications of
the selected individual and not some basis prohibited under Title VII.
McAllister v. United States Postal Service, EEOC Request No. 05931038
(July 28, 1994). Complainant has failed to proffer probative evidence
demonstrating that the agency's selection decision was based on a
basis prohibited by Title VII or the ADEA. Thus, we find complainant's
assertions are unsupported by the evidence of record.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
sex, age, or national origin. We discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, we AFFIRM
the agency's final order.
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
7/29/2004
Date