01A23286_r
09-19-2002
Santiago Galaviz, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Santiago Galaviz v. Small Business Administration
01A23286
September 19, 2002
.
Santiago Galaviz,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A23286
Agency No. 11-99-003
Hearing
No. 360-A1-8298X
DECISION
Complainant appeals from the agency's final order in the above-entitled
matter. Complainant filed a formal EEO complaint in which he claimed that
the agency discriminated against him on the bases of his national origin
(Hispanic) and disability (multiple service-connected disabilities) when
(1) he was asked several questions concerning his disabilities during
an interview for the position of Administrative Clerk, GS-303-01; and
(2) the agency filled the Administrative Clerk position with another
candidate after complainant failed to report for duty.
The record reveals that complainant interviewed for the position
of Administrative Clerk, GS-303-01. Complainant claimed that during
the interview, the District Director asked him questions pertaining
to his disability after he explained that his extended period without
working was due to his disability retirement. Complainant stated that
the District Director asked if he was well enough to be able to handle
the constant pressure that he would be receiving from customers on the
telephone. Complainant further stated that the District Director asked
him about the percentage of his service-connected disability. By letter
dated July 2, 1998, the agency notified complainant that he had been
selected for the position. Complainant failed to report for work on his
scheduled reporting date of August 3, 1998, due to a medical appointment.
According to complainant, he called the agency every day from August 3,
1998, to August 14, 1998, to request a new reporting date. On August 14,
1998, complainant was informed that another individual had been hired
for the Administrative Clerk position.
By decision dated February 26, 1999, the agency dismissed the complaint
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. In our previous decision, Santiago Galaviz
v. Small Business Administration, EEOC Appeal No. 01993493 (December 8,
2000), we reversed the agency decision and remanded the complaint to
the agency for further processing. Subsequent to the completion of
the agency investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The hearing was held and afterwards
the AJ issued a bench decision finding that complainant had not been
discriminated against with regard to each of his claims. The AJ found
with regard to the first claim that although certain questions need not
have been asked, discrimination could not be attributed to the agency in
light of the fact that complainant was selected for the Administrative
Clerk position. With respect to the second claim, the AJ found that
the agency acted reasonably when it decided to select another individual
after complainant did not report for duty. The AJ observed that agency
officials asserted that complainant did not notify them that he was
undergoing medical treatment for an ear infection on his first scheduled
day of work. The AJ found that complainant did not produce evidence to
establish that he notified agency officials that he would be unable to
appear for work.
The agency issued a final order dated April 26, 2002, stating that it
was fully implementing the AJ's decision. Thereafter, complainant filed
the instant appeal.
In response, the agency asserts that complainant failed to establish a
prima facie case of national origin discrimination. The agency states
that complainant did not name a similarly situated applicant not in his
protected class who was treated more favorably. The agency also asserts
that complainant failed to establish a prima facie case of disability
discrimination. With regard to the first claim, the agency states that
non-disabled individuals were not treated more favorably in light of the
fact that complainant was selected for the Administrative Clerk position.
As for the second claim, the agency maintains that there is no evidence
of the agency holding the position open for non-disabled individuals
who did not report to work on their report to duty date. The agency
contends that it articulated legitimate, nondiscriminatory reasons for
selecting another individual after complainant failed to report to work.
The agency notes that complainant acknowledged that he failed to contact
the El Paso District Office to inform his supervisor that he would not be
reporting to work on August 3, 1998, due to an ear infection. The agency
states that the Administrative Officer asserted that complainant never
communicated with them about why he failed to report for duty or whether
he intended to report for duty. The agency notes that telephone records
show that complainant did not call the Denver office until August 10,
1998. The agency further states that it was under the impression that
complainant declined the job offer based on complainant's conversation
with the Personnel Management Specialist.
The agency asserts that complainant did not provide sufficient evidence
to support his claim that the agency's proffered reasons are pretext
for discrimination. The agency notes that the AJ concluded that
complainant brought up the issue of his disability after the District
Director inquired about the gaps in his work history. Further, the
agency reiterates the AJ's statement that it is difficult to understand
complainant's belief that he was discriminated against given that he
was selected for the position. The agency notes that the AJ found that
the overwhelming preponderance of the evidence showed that complainant
made no attempt to obtain an extension of the August 3rd reporting date.
Further, the agency reiterates the AJ's conclusion that the agency held
the job open for about three weeks before it filled the position.
Applying the standards set forth in McDonnell Douglas Corp. v Green,
411 U.S. 792 (1973), the Commission agrees with the agency that
complainant failed to establish by a preponderance of the evidence that
the agency's articulated reasons for its actions were a pretext for
discrimination. Although the initial inquiry in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether she has
demonstrated by a preponderance of the evidence that the agency's reasons
for its actions merely were a pretext for discrimination. Id.; see also
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983). In this case, the Commission finds that the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Consequently, we will dispense with an examination of whether complainant
established a prima facie case with respect to the above cited issues
and review below, the reasons articulated by the agency for its actions
as well as complainant's effort to prove pretext.<1>
We find that the arguments presented by complainant do not establish,
by a preponderance of the evidence, that the agency's stated reasons
for its actions were pretextual. With regard to the questions that
allegedly referenced complainant's disability, we find that although
certain questions may have been inappropriate, the fact that complainant
was selected for the Administrative Clerk position is strong evidence
that the inquiry was not attributable to a discriminatory intent.
Furthermore, complainant has not shown how he was harmed by such
inquiries. As for the withdrawal of the agency's offer of employment,
we find that complainant has not established that he contacted the
agency either prior to or within a reasonable time after his failure to
report to duty on August 3, 1998. Complainant has not shown that the
agency acted unreasonably and in a discriminatory manner when it selected
another individual for the position after he failed to report for work.
We find that complainant has not shown that the agency's stated reasons
for its actions were pretext intended to mask discriminatory intent.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's decision,
because a preponderance of the record evidence does not establish that
discrimination occurred.
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 19, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Because of our disposition, we do not address whether complainant
is disabled.