0120071777
04-02-2009
Robert Castillo, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Robert Castillo,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120071777
Agency No. EE-05-038
DECISION
Complainant filed an appeal with this Commission from the January 18,
2007 agency decision finding no discrimination. Complainant alleges
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.
Complainant, a GS-12 Construction Analyst at the agency's Multifamily
Program Center (MPC) in Indiana, alleged that the agency discriminated
against him on the bases of race (Hispanic), national origin (Mexican),
religion (Roman Catholic), and age (44) when: (1) on September
9, 2004, complainant learned that he was not referred on the Best
Qualified List (BQL) to the Selecting Official (SO) for the position
of Quality Assurance Specialist (QAS), GS-1910-9/11/12/13, advertised
under Vacancy Announcement Number HQ-DEU-2004-0136z;1 (2) complainant's
supervisor continuously assigns him more construction project work with
more responsibility and more complexity than work assigned to the two
GS-13 Construction Analysts, without the benefit of the corresponding
grade and pay; (3) in September 2000, complainant's supervisor chastised
him for a work related injury; (4) complainant is continuously denied
overtime compensation promised by the Office of the Inspector General
(OIG) for approximately 120 hours of personal time spent completing an
OIG Audit and Investigation in September 2003; and (5) in September 2003,
complainant's supervisor would not permit him to complete his governmental
assignment during his regular work schedule and disallowed compensatory
time, while others in the office were permitted compensatory time to
complete their assignments.
Following an investigation, complainant requested a hearing. Complainant
withdrew his hearing request and requested issuance of a decision by
the agency.
In a dismissal, dated February 17, 2005, the agency dismissed claims 3,
4, and 5, pursuant to 29 C.F.R. � 1614.105(a)(1) on the grounds that
complainant failed to contact an EEO Counselor within the requisite
45 days.
Regarding claim 1, the agency indicated that complainant failed to
establish a prima facie case because the selection for the position
at issue was made from the merit staffing selection roster for Vacancy
Announcement RE-MSH-2004-0243z and complainant did not apply under that
Vacancy Announcement.2 The agency found that even if complainant had
established a prima facie case, the agency had articulated a legitimate,
nondiscriminatory reason for its action and complainant failed to
show by a preponderance of the evidence that the agency's reason was a
pretext for prohibited discrimination. In so finding, the agency noted
that complainant was not referred on the BQL, because complainant's
application did not receive the highest scores and that he did not
meet the cutoff score. The agency noted that complainant received a
score of 98 for grade level GS-9, 93 points for GS-11, 90 points for
GS-12 and 83 points for GS-13, that complainant's scores were not high
enough to outscore the other applicants and, also, that many of the other
applicants were entitled to additional points because of their veterans'
preference status.
Regarding claim 2, the agency found that complainant failed to establish
a prima facie case because he failed to demonstrate that similarly
situated employees not in his protected groups were treated differently
under similar circumstances. The agency also stated that complainant
had not shown that employees in the MPC had been promoted to the grade
level GS-13. The agency noted that the two comparatives (Persons A and
B) were GS-13s before being assigned to the MPC; that their grades were a
result of a reorganization; and that the two positions would be filled at
a GS-12 level if Persons A and B left their jobs. The agency also noted
that Person A was downgraded from GS-14 as a condition of his hardship
transfer to the MPC. The agency also found legitimate, nondiscriminatory
reasons for its action, noting that complainant was not performing work
beyond his grade and that complainant had not shown that he was performing
work warranting an upgrade. The agency noted that the MPC did not have
any GS-13 Construction Analyst positions. The agency also noted that
in addition to their duties, Persons A and B performed other duties.
Person A performed as the Governmental Technical Representative for fee
inspectors and Person B performed all initial evaluations for elderly
housing and for the 202 Program (housing grants for the disabled).
Regarding the nonselection, the record reveals that there were two
vacancy announcements for the position, one internal (RE-MSH-2004-0243Bz)
and an external announcement (HQ-DEU-2004-0136zC) which was competitive.
Complainant applied under the external competitive announcement which was
open to the public. The internal announcement was open to status/federal
employees and veterans.
To prevail in a disparate treatment claim, 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).
Because 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
a de novo review by the Commission. 29 C.F.R. � 1614.405(a).
Upon review, the Commission finds that the agency's dismissal of
claims 3, 4, and 5 was proper. Regarding the agency's finding of no
discrimination, the agency has articulated legitimate, discriminatory
reasons for its actions and complainant has failed to show by a
preponderance of the evidence that the agency's reasons were pretextual
and motivated by discriminatory animus. Regarding claim 1, we find that
the agency made its selection from the candidates who applied under
the internal vacancy announcement. Complainant did not apply under
the internal vacancy announcement and therefore was not considered for
the vacancy. Complainant has not shown that the agency's decision
to make a selection from the internal announcement was motivated by
discriminatory animus. Regarding claim 2, we find that complainant
has not shown that he has been assigned more work and performing at the
GS-13 level. Complainant has also not shown that Persons A and B were
not GS-13s before being assigned to the MPC. Further, even were we to
assume that complainant was performing at the GS-13 level, complainant
has not shown that the agency's reasons for having him perform at the
higher grade was based on unlawful discrimination.
The agency's decision finding no discrimination is AFFIRMED.
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
April 2, 2009
__________________
Date
1 The Vacancy Announcement number appearing on the vacancy announcement
contained in the record appears as HQ-DEU-2004-0136zC.
2 The Vacancy Announcement number appearing on the vacancy announcement
contained in the record is RE-MSH-2004-0243Bz.
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0120071777
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013