01A03208
05-11-2001
Richard V. Gonzales, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Richard V. Gonzales v. Department of the Air Force
01A03208
05-11-01
.
Richard V. Gonzales,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A03208
Agency No. KHOF95094, KHOF97570, KHOF97122
Hearing No. 360-98-8420X, 360-98-8667X, 360-98-8731X
DECISION
INTRODUCTION
On March 24, 2000, Richard V. Gonzales (complainant) initiated an appeal
to the Equal Employment Opportunity Commission (EEOC or Commission)
from the final decision of the Department of the Air Force (agency),
concerning his 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.
ISSUES PRESENTED
The issues presented herein are whether complainant was discriminated
against on the bases of race (Hispanic), sex (male), age (DOB 8/29/46)
and reprisal when:
1) in October 1994, complainant discovered that other employees received
higher performance appraisals than he did (Bases: race, sex and age)
(Complaint 1, Allegation 1; Agency No. KHOF95094);
2) on November 28, 1994, complainant was reassigned to the Precision
Measurement Equipment Laboratory Branch, Owner/Support Calibration Support
Section when another employee who occupied that position succumbed to
cancer (Bases: race, sex and age) (Complaint 1, Allegation 2; Agency
No. KHOF95094);
3) in or around October 1996, complainant was non-selected for the
position of Electronic Integrated Systems Mechanic General Supervisor,
WS-2610-17, under Merit Promote Certificate #P-96-0800 (Bases: age and
reprisal)(Complaint 2; Agency No. KHOF97122); and
4) in May 1997, complainant was non-selected for the position of
Electronic Integrated Systems Mechanic Foreman, WS-2610-17 (Basis:
reprisal)(Complaint 3; Agency No. KHOF97570).
BACKGROUND
Complainant, an employee with the Department of the Air Force for
approximately 33 years, worked for over 20 years in the electronics field.
At the time complainant retired, he was employed as an Electronics
Integrated Systems Mechanic Foreman, WG-2610-13.
Complainant filed three formal complaints on September 9, 1995, January
31, 1997 and October 21, 1997. The agency conducted investigations,
provided complainant with copies of the investigative reports, and
advised complainant of his right to request either a hearing before an
EEOC administrative judge (AJ) or an immediate final agency decision.
Complainant requested a hearing before an AJ. The AJ consolidated the
three complaints, and following a hearing, issued a decision finding
no discrimination.
With respect to Complaint 1, Allegation 1, the AJ found that
complainant failed to establish a prima facie case of race, sex or
age discrimination. Specifically, the two employees (comparatives)
who received higher appraisal than complainant were, like complainant,
Hispanic. Of the two comparatives, one was male and the other female,
indicating similar treatment of male and female employees. Furthermore,
one of the comparatives was over 40 years of age at the time of the
appraisal, thus showing that individuals over 40 years of age were not
subjected to adverse actions to which those under forty were not.
The AJ further determined that complainant failed to establish a
prima facie case of race, sex or age discrimination with regard to
his Precision Measurement Equipment Laboratory Branch, Owner/Support
Calibration Support Section transfer (Complaint 1, Allegation 2).
Again, two of the comparatives offered by complainant were Hispanic.
The other two comparatives offered were Caucasian (non-Hispanic), however,
the AJ concluded that they were not similarly situated to complainant
in terms of position, experience, seniority and education. Of the four
comparatives offered by complainant as likely candidates for transfer,
three were males, again disproving that males were subjected to adverse
actions to which females were not. Complainant alleged age discrimination
because two comparatives were under forty, but the AJ concluded that
neither of the two comparatives were similarly situated to complainant.
Furthermore, the AJ found that complainant failed to establish a prima
facie case of reprisal because complainant did not participate in EEO
activity until after he was transferred.
With respect to Complaint 2, non-selection for the Electronic Integrated
Systems Mechanic General Supervisor position, complainant established a
prima facie case of age discrimination because the selectee was 36 years
of age. However, the agency articulated legitimate nondiscriminatory
reasons for its action, namely that complainant was consistently ranked
lower than the selectee by the interview panel and the selectee had
received more awards and had more education. Complainant failed to prove
that the agency's articulated reasons were pretext for discrimination.
The AJ further determined that complainant failed to establish a prima
facie case of reprisal because the members of the selection panel were
unaware of complainant's prior protected activity.
Complainant was unable to establish a prima facie case of reprisal with
respect to the position of Electronic Integrated Systems Mechanic Foreman
in Complaint 3 because the members of the selection panel were unaware
of complainant's prior protected activity.
Finally, the AJ found that, even assuming arguendo that complainant had
established a prima facie case on all his claims, the agency articulated
legitimate nondiscriminatory reasons for its actions. The AJ determined
that complainant failed to provide sufficient evidence of pretext.
On March 31, 2000, the agency's final decision implemented the AJ's
recommended decision.
ANALYSIS AND FINDINGS
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 that discriminatory intent did not exist is a factual finding.
See Pullman - Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies, and
laws. We find that complainant failed to present sufficient evidence,
showing that any of the agency's actions were in retaliation for
complainant's prior EEO activity or were motivated by discriminatory
animus toward complainant's race, sex or age. We discern no basis to
disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's arguments on appeal, and arguments and
evidence not specifically addressed in this decision, we find that the
AJ's decision finding no discrimination was proper.
CONCLUSION
Accordingly, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
___05-11-01_______________
Date