01A02917
08-29-2002
Rudy M. Faz, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Rudy M. Faz v. Department of the Air Force
01A02917
08-29-02
.
Rudy M. Faz,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A02917
Agency No. (LDPF) KHOF98146
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
dated March 1, 2000, 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.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that during the relevant time, complainant was employed
as a Production Management Specialist at the agency's Aerospace Equipment
Management Directorate, Power Systems Program Management Division,
Fuel Systems Management Branch, Kelly Air Force Base, Texas, facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on February 26, 1998, alleging that he was discriminated against
on the bases of race (Hispanic), national origin (Mexican-American),
color (brown), sex (male), and age (D.O.B. October 19, 1942) when:
his second level supervisor (RMO 1: non-Hispanic, White, male, DOB:
November 14, 1946) assigned him extra duties which involved training
two lower-graded employees;
from 1988 to the present he was made to perform Buyer and Seller
duties; and
sometime in 1994, management denied his request to perform a desk audit.
In a FAD dated April 17, 1998, the agency dismissed allegation 3 for
untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(b).
The agency indicated that it would conduct an investigation into the
remaining allegations. The agency, however, only investigated allegation
1. At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge (AJ)
or alternatively, to receive a final decision by the agency. Complainant
requested a hearing, but on December 29, 1999, the AJ dismissed the
complaint on the grounds that complainant failed to submit a witness
list and failed to appear for a pre-hearing teleconference. The AJ
reissued her decision dismissing the complaint on January 20, 2000,
after it was discovered that the prior dismissal did not contain a
copy of complainant's appeal rights. The record shows that the agency
received the AJ's reissued decision on January 24, 2000. On March 1,
2000, the agency issued a final decision.
In its FAD, the agency declined to adopt the AJ's dismissal and instead
adjudicated complainant's claim on the merits. The agency addressed
only allegation 1 and made no reference to allegation 2. The Commission
deems the agency's action to be tantamount to a dismissal of that matter.
The agency did not make a finding regarding whether or not complainant
established a prima facie case, proceeding instead directly to the issue
of whether or not it had articulated a legitimate, nondiscriminatory
reason for its action. The agency found that it had done so, and that
complainant failed to show, by a preponderance of the evidence, that the
agency's reason was a pretext for discrimination. From this decision,
complainant appeals.
On appeal, complainant contends that the AJ wrongfully dismissed his
complaint. The agency requests that we affirm its FAD.
We note that in general, claims alleging disparate treatment are
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). A complainant 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 reason was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate a
legitimate, nondiscriminatory reason for its action(s). Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the
agency has offered the reason for its action, the burden returns to the
complainant to demonstrate, by a preponderance of the evidence, that the
agency's reason was pretextual, that is, it was not the true reason or
the action was influenced by legally impermissible criteria. Burdine,
450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory reasons
for its actions. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983). The agency said that complainant
was required to train lower-graded employees because there were no other
available employees at complainant's Grade and Title who were capable of
conducting the training and it was not feasible to detail the trainees to
other branches for training. The agency next noted that, in an attempt
to show pretext, complainant maintained that there were a number of
other employees who could have conducted the training, and further,
that training was not in his position description. The agency argued
that the other employees named by complainant either worked in other
branches, they either did not have the specific skills that complainant
had, or they were not qualified. In addition, the agency said that
training was part of complainant's position description. A review of the
complainant's position description states that the incumbent �provides
technical consultation service and guidance to lower graded personnel.�
Report of Investigation, (ROI) Exhibit F6.
The burden thus returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reasons were pretextual,
that is, they were not the true reasons or the actions were influenced
by legally impermissible criteria. Burdine, 450 U.S. at 253; Hicks,
509 U.S. at 502. Following a careful review of the record, we find
complainant has failed to meet this burden.
Complainant has offered no theory or argument rebutting the agency's
contention that his position description's reference to �technical
consultation service and guidance� included training. Nor has complainant
rebutted the agency's contention that the other employees he claimed could
have performed the training either worked in different locations, did not
have the specific skills that he had, or were not qualified. Instead,
he argues that �as an Hispanic I am easier to manipulate and enslave
. . .. It is known that we are mellow.� ROI, p. 24. He contends that
female employees are given lighter workloads than males, and he contends
that his age is a factor because management knows that, at his age �it
would be very difficult, if not impossible, . . . to get another job.
They know they can load me up and not quit.� Id. However, he presents
no evidence to support his contentions. He has therefore failed to
establish that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination.
Regarding Issue 2, we note that complainant contends that he was made to
perform Buyer and Seller duties since 1988. The record shows complainant
first contacted an EEO Counselor on February 12, 1998. We therefore
find Complainant's Counselor contact to have been untimely, under 29
C.F.R. � 1614.105(a)(1), and we AFFIRM the agency's dismissal of this
issue, pursuant to 29 C.F.R. � 1614.107(a)(2), .405(a).
Complainant contends that the AJ erred in dismissing his complaint for
failure to submit a witness list and failure to appear for a pre-hearing
teleconference. Complainant argues that he did not receive the AJ's
Scheduling Order because of mail delivery problems in his neighborhood.
He submits evidence of other items of misdirected mail to support
his contention. Following a review of the AJ's Recommended Decision,
however, we find that the AJ's decision was reasonable. We note that
under 29 C.F.R. � 1614.109(f)(3) an AJ is authorised to issue sanctions,
including dismissing the complaint, where the AJ determines that a party
has failed to respond fully and in a timely fashion to an AJ's order
or request for information. Complainant has not shown that the AJ's
decision constituted an abuse of discretion.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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.
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
___08-29-02_______________
Date