01a53215
09-15-2005
Rosita R. Aguirre, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Rosita R. Aguirre v. Department of Labor
01A53215
September 15, 2005
.
Rosita R. Aguirre,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A53215
Agency No. 03-03-022
Hearing No. 150-2004-0001X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning her 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Wage and Hour
Complaint Inspector at the agency's Wage and Hour Division in Guaynabo,
Puerto Rico. Complainant filed a formal EEO complaint on December 3,
2002, claiming that the agency discriminated against her on the bases
of national origin (Puerto Rican), sex (female), and in reprisal for
prior EEO activity when:
she was denied a waiver for the payment of a debt in the amount of
$7,485.97 resulting from incorrect deduction for health benefits from
pay period three of 1988 through pay period seven of 2002.
The record reveals that in March 2002, the Human Resources department was
notified by the administrator of the health insurance carrier for federal
employees that complainant was enrolled in Enrollment Code 892 ("self
and family plan") but that she had paid premiums under Enrollment Code
891 ("self-only plan") for the past fourteen years. The record further
reveals that complainant accrued a debt as a result of the incorrect
deduction of health benefits, which had resulted in a total underpayment
of $7,485.97 from pay period three of 1988 through pay period 7 of 2002.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency thereafter filed a motion for summary judgment
or in the alternative, a Motion for Decision Without a Hearing.<1>
On January 24, 2005, the AJ granted and adopted the agency's Motion,
finding no discrimination. The AJ further found that complainant
failed to establish by a preponderance of the evidence that she was
discriminated on the bases of sex, national origin and in reprisal for
prior protected activity. The AJ found that the record clearly indicated
that the agency officials that denied complainant's waiver request were
unaware of complainant's prior protected activity. The AJ further found
that complainant was not aware of any similarly situated individuals,
outside complainant's protected classes, that had been denied a waiver by
the agency. With respect to complainant's claim that a named employee
was granted a waiver, the AJ found that the employee's waiver request
was granted under different circumstances.
The record reflects that the Regional Administrator (RA) stated that she
was the deciding official in the denial of complainant's waiver request.
RA further stated that in her June 21, 2002 letter to complainant,
she stated that "it was clear that this erroneous situation was a
result of administrative error." RA, however, stated that at some
point during the past fourteen years, complainant "reasonably should
have become cognizant of the error and brought it to the attention of
the appropriate officials." RA stated that she denied complainant's
waiver request based on the fact that her written testimony "no way
establishes a basis upon which the department can in good conscience
waive your responsibility for unpaid premiums."
With respect to complainant's argument that a named employee was granted
a waiver, RA stated that the named employee was granted a partial waiver
"for the period extending from the date when he first brought the
error to the attention of the appropriate officials." Specifically,
RA stated that because the agency did not act expeditiously on the
named employee's behalf, he was granted waiver "only for the period of
time attributable to the delay caused by this office, which was deemed
exceptional." RA stated that she was not aware of complainant's prior
protected activity. Furthermore, RA stated that complainant's sex,
national origin and prior protected activity were not factors in her
determination to deny complainant's waiver request.
Further, the record reflects that the Regional Finance Officer (FO) stated
that he recommended that the agency deny complainant's waiver request
because she should have been aware of the administrative error and should
have brought it to the attention of the appropriate officials. Moreover,
FO stated that he was not aware of complainant's prior protected activity.
In a final action dated March 4, 2005, the agency implemented the AJ's
decision finding no discrimination.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas 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).
As reflected in our discussion above, the Commission finds that there
is sufficient evidence of record supporting a determination that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
Moreover, complainant has not shown that the agency's articulated reasons
were a pretext for discrimination.
Accordingly, the agency's final action implementing the AJ's decision
finding no discrimination was proper and is AFFIRMED.
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
September 15, 2005
__________________
Date
1The record does not contain a copy of the agency's Motion.