0120064659
03-25-2008
Stanley K. Garcia, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Stanley K. Garcia,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200646591
Agency No. ARUSAR05JAN06446
DECISION
On August 8, 2006, complainant filed an appeal from the agency's July 6,
2006, 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). For the following reasons,
the Commission affirms the agency's final decision.
On January 3, 2005, the agency advertised a Firefighter position,
GS-0081-06, under Vacancy Announcement No. NCDE04235983. The position was
posted as "a Permanent position - Intermittent." The Vacancy Announcement
further stated that "an intermittent position is not a full time position.
It is a permanent position with no guarantee of hours of work, as it
is meant to fill-in for full-time firefighters who are on annual leave,
sick leave, or other emergency situations." Complainant applied for the
position of Firefighter with the agency. On February 7, 2005, complainant
was informed that he was not qualified for the position. The selectee
was a 21 years old Caucasian male. On February 28, 2005, complainant
filed an EEO complaint alleging that he was discriminated against
on the bases of national origin (Hispanic)2, age (D.O.B. 09/03/63),
and in reprisal for prior protected EEO activity when, on January 13,
2005, he was not referred or selected for the position of Firefighter,
GS-0081-06, under Vacancy Announcement No. NCDE04235983.
At the conclusion of the investigation, 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. Specifically, the agency found
that complainant failed to establish a prima facie case of national origin
or age discrimination since the record showed that complainant was not
qualified for the position. Complainant failed to include that he had CPR
training and that he was willing to accept an intermittent employment,
since the position was advertised as intermittent. Further, the agency
found that complainant failed to identify any prior EEO activity in which
he participated. Additionally, the agency found that even assuming that
complainant established a prima facie case of national origin or age
discrimination or retaliation, the agency offered legitimate reasons
for not selecting complainant, which he failed to show were a pretext
for discrimination or retaliation.
On appeal, complainant argues that the agency erred when it narrowed
complainant's claim of discrimination. Complainant also argues that
he was the best qualified for the position and held all the required
certification. Further, complainant appears to argue that the selecting
official's affidavit establishes a prima facie case of retaliation and
that complainant intended to take any work scheduled offered. The agency
requests that the Commission affirm its FAD.
Preliminarily, we note that in response to the agency's letter of
acceptance, complainant argued that he disagreed with the way his
complaint was framed in a letter dated March 18, 2005. However,
complainant failed to specify how the agency erred in framing the claim
or how it should have framed the claim.3 We find that complainant
failed to contest the framing of his complaint in a meaningful manner
such that the agency could respond or alter the framing of the claim.
Therefore, we decline to change the framing of the claim as complainant
requests on appeal. Moreover, we find that the agency appropriately
framed complainant's contentions in his formal complaint in this case.
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); EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). In order to prove
a claim of discrimination or retaliation and in the absence of direct
evidence of discrimination, the allocations of burdens and order of
presentation of proof in a Title VII case alleging discrimination is
a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000) (applying the McDonnell Douglas analytical framework to an
ADEA disparate treatment claim). First, complainant must 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. Id. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then complainant must prove, by a preponderance of the
evidence, that the legitimate reason proffered by the agency was pretext
for discrimination. Id. at 256.
To establish a prima facie case in a discriminatory nonselection claim,
complainant must show: (1) he is a member of a protected group; (2)
he applied and was qualified for the position; (3) he was considered
for and denied the position; and (4) another person, not a member of
his protected group, was selected for the position. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03. Generally, complainant may also set
forth evidence of acts from which, if otherwise unexplained, an inference
of discrimination can be drawn. Furnco Construction Corp. v. Waters,
438 U.S. 557, 576 (1978).
We find that complainant failed to establish a prima facie case of
national origin or age discrimination. Specifically, complainant
failed to put forth evidence that he was qualified for the position
at issue in this case. Complainant's application for the position
only provided that he was interested in Permanent, Temporary 7-12
months, Full-Time work or Shift work. Although complainant argues on
appeal that he intended to take any work schedule offered, nothing in
the record shows that complainant indicated this in his application.
The Vacancy Announcement explicitly stated that the position offered was
an intermittent position. The record shows that complainant's failure to
select an intermittent work schedule as an option, whereas the selectee's
application expressly stated that he would take an intermittent schedule,
was one of the reasons complainant was not referred for the position
by the Human Resources Specialist. As such, we find that complainant
failed to show he was qualified for the position. Therefore, complainant
failed to demonstrate that the agency discriminated against him based on
his national origin or age as alleged when it failed to refer or select
complainant for the position at issue.
Similarly, for analysis of claims based on reprisal, complainant can
establish a prima facie case of retaliation by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (December
6, 1996). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, supra, to establish a prima
facie case of reprisal, he must show: (1) he engaged in a prior protected
activity; (2) the official acting on behalf of the agency was aware of
the protected activity; (3) he was subjected to adverse treatment by
the agency; and (4) a nexus, or causal connection, exists between the
protected activity and the adverse treatment. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
We find that complainant failed to put forth any evidence that he engaged
in prior EEO activity. We note that complainant failed to attend and
participate in the investigatory interview with the EEO Investigator after
being informed by letter of the date and time. However, complainant
has failed to put forth any explanation as to why he could not attend,
or why he could not provide information to the investigator with regard
to his case. Additionally, complainant's representative was present at
the investigatory interview but choose not to participate. Therefore,
we find that, even though the record is not sufficiently developed on
this issue, we decline to remand the case for further investigation since
complainant failed to fully participate in the EEO process and offered
no explanation for his absence. As such, we find that complainant failed
to establish a prima facie case of retaliation.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that
complainant failed to establish, by a preponderance of the evidence,
that he was discriminated against or retaliated against as he alleged.
The Commission affirms the FAD finding no discrimination or retaliation.
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
____03-25-2008______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Although complainant alleged discrimination on the basis of race,
identified as Hispanic, the Commission notes that it considers the term
"Hispanic" to denote a national origin group rather than a racial group.
Accordingly, we will analyze complainant's claim as one of national
origin discrimination.
3 In his March 18, 2005 letter, complainant's representative stated:
Please be advised that the complainant does not waive any rights
associated with his instant EEO complaint and/or amendment(s); and you
are not to presume that by operation of the agency's required acceptance
of our client's EEO complaint that he agrees, by inaction or otherwise,
with any (Department of Army) related complaint interpretations.
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0120064659
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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