0120081368
05-12-2008
Robert T. Ontiveros, Complainant, v. Elaine L. Chao, Secretary, Department of Labor, Agency.
Robert T. Ontiveros,
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120081368
Agency No. CRC0606113
DECISION
Complainant filed an appeal from the agency's September 7, 2007 final
decision concerning his equal employment opportunity (EEO) complaint
alleging 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 deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a).
At the time of the events at issue, complainant was employed by the
agency as an Equal Opportunity Specialist, GS-12, in the San Antonio
District of the Office of Federal Contract Compliance Programs (OFCCP).
On August 28, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of national origin (Hispanic),
sex (male), age (44), and reprisal for prior protected EEO activity when
he was forced to resign from his position in lieu of termination.
Briefly, on May 16, 2006, the agency proposed to remove complainant
from his position, charging him with the unauthorized disclosure
of confidential information and failure to cooperate in an agency
investigation. On two separate occasions, complainant was alleged to
have mailed packages of privileged agency documents, which complainant
did not have authority to release, to law firms that represented federal
contractors who had business before the OFCCP. When agency management
became aware of the alleged unauthorized disclosures, it requested that
the Office of Inspector General (IG) investigate the matter. It was
alleged in the proposed removal that representatives from the IG attempted
to interview complainant concerning the investigation, and complainant
refused to cooperate, despite repeated warnings that his failure to
answer questions could result in his removal from federal service.
By written reply on May 23, 2006, complainant indicated to the Regional
Director, the deciding official, that he had no comment at that time
about either of the charges in the proposed removal. On June 7, 2006, the
Regional Director decided to uphold the proposal, and removed complainant
from his position effective June 16, 2006. Complainant submitted a letter
of resignation in lieu of termination, effective June 15, 2006.
Because complainant alleged that he was forced to resign, the matter was
viewed as a mixed case and, following an investigation, complainant
filed an appeal with the Merit Systems Protection Board (MSPB).
Because complainant alleged his resignation was involuntary, the MSPN
addressed the matter as such, rather than as a removal action. The
MSPB found that complainant resigned voluntarily rather than challenge
the removal action, and dismissed the matter for lack of jurisdiction.
Because the MSPB dismissed the matter, the agency resumed processing
the EEO complaint. Complainant was provided with a copy of the report
of investigation and notice of his right to request a hearing before
an EEOC Administrative Judge (AJ). When complainant did not request
a hearing within the time frame provided in 29 C.F.R. � 1614.108(f),
the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b)
concluding that complainant failed to prove that he was subjected to
discrimination as alleged.
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 EEOC Management
Directive 110, 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").
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The central question in a constructive discharge case is whether
the employer, through its unlawful discriminatory behavior, made the
employee's working conditions so difficult that any reasonable person in
the employee's position would feel compelled to resign. Carmon-Coleman
v. Department of Defense, EEOC Appeal No. 07A00003 (April 17, 2002).
The Commission has established three elements which a complainant must
prove to substantiate a claim of constructive discharge: (1) a reasonable
person in the complainant's position would have found the working
conditions intolerable; (2) conduct that constituted discrimination
against the complainant created the intolerable working conditions;
and (3) the complainant's involuntary resignation resulted from the
intolerable working conditions. See Walch v. Department of Justice,
EEOC Request No. 05940688 (April 13, 1995).
After a review of the record in its entirety, the Commission finds that
complainant has failed to show that the agency's reasons for its action
in removing him were a pretext for discrimination or reprisal. Further,
to the extent that complainant felt that he had to resign rather than
face termination, he has not shown that discriminatory working conditions
were such that he was forced to resign. Rather, the record shows that
the action taken was due to complainant's alleged misconduct and failure
to cooperate in the ensuing IG investigation into the matter.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
finding of no discrimination or reprisal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
May 12, 2008
__________________
Date
2
0120081368
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081368