01983524
12-22-1999
Abraham Romero, Complainant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Abraham Romero, )
Complainant, )
) Appeal No. 01983524
v. ) Agency No. 961237
)
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of national origin (Hispanic) and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant
claims that he was discriminated against when the Branch Manager (BM)
issued him a disciplinary Counseling Memorandum (CM) on March 28, 1996.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was employed
as a GS-13 Revenue Agent at the agency's Internal Revenue Service,
Office of the Assistant Commissioner (International), Washington, D.C.
Complainant claims that the CM wrongly charges him with violation of
two Rules of Conduct in handling one of his tax cases. Specifically,
complainant denies making misleading statements or reports, further
contending that his supervisor (S1) and an acting supervisor (S2)
provided instruction and reviewed the case file and should have been
responsible for the errors. He contends that the CM was not warranted
and that BM nevertheless disciplined him because of his national origin
and in retaliation for his filing an EEO complaint in March 1996.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint. At the conclusion of
the investigation, complainant requested that the agency issue a FAD.
The FAD concluded that complainant had failed to establish a prima facie
case of discrimination based on national origin because he presented no
evidence to show that others outside of his protected classes who had
been charged with similar infractions were treated more favorably. Next,
although the FAD found that complainant had established a prima facie
case of reprisal, the agency concluded that regarding both protected
bases, the complainant was unable to show that the BM's reasons were a
mere pretext for national origin discrimination or reprisal. Based on
McDonnell, supra, and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
we concur with this determination.
Complainant argues that he is not fully to blame for the errors and
misleading reports in the tax case file, and that any misstatements
he made were the product of a faulty memory. Notwithstanding these
contentions, we find that the record supports BM's testimony that she
believed that complainant did not perform his duties conscientiously, and
that the records in the case file could have been easily corrected, but
were not, thereby misleading all those working with the file, and causing
the statute of limitation to run. As noted in the CM, BM determined
that too many misstatements and errors had taken place to excuse it as
�confusion,�and that a CM was warranted for the intentional violation
of two Rules of Conduct. We note that S2 corroborates BM's view,
testifying that it was highly unlikely that an agent with complainant's
expertise could have mistakenly documented the file and the office's
system of controls to reflect that he had conducted a 1991 audit when
he had not. Moreover, although complainant argues that his culpability
is diminished because S1 and S2 did not rectify the situation, we note
that BM meted out the same discipline (a CM) to S1, and that S2 received
verbal counseling. We find the fact that S1 and S2 were also disciplined
by BM for mishandling this case further belies complainant's argument
that the CM was issued to him as a result of national origin animus and
retaliation instead of the reasons set forth in the CM.
Complainant advances many arguments on appeal. The agency rebuts these
arguments, and requests that we affirm its FAD.
First, complainant contends that a prima facie case of national origin
discrimination has been established because S1 and S2 received more
favorable treatment, and also because similarly situated co-workers
were not disciplined for allowing the statute of limitations to lapse.
However, as pointed out by the agency in its response brief, S1 and S2
are not �similarly situated� because they were complainant's supervisors,
and complainant was unable to specifically identify �similarly situated�
co-workers. Complainant argues that the record is inadequate because
the investigator did not attempt to find �similarly situated� co-workers
on his behalf. However, we find that S1's testimony that no other
agents in the office had allowed the statute of limitations to lapse
in a case during the pertinent period of time defeats this argument.
Moreover, we concur with the FAD's analysis that even if complainant
had established a prima facie case of national origin discrimination,
the record is devoid of any evidence to suggest that BM's reasons were
pretextual. Second, complainant also argues that the reasons he was
issued the CM were so vague as to prevent him from proving that they
are pretextual. However, our review of the record shows that BM first
discussed the situation with complainant, provided specific and detailed
reasons in the CM to support her decision, and set forth the Rules
of Conduct which complainant had violated. Third, complainant claims
that the investigation was woefully inadequate, and that a remand for a
supplemental investigation is necessary. After taking into consideration
complainant's many arguments on this point, we nonetheless find that the
evidence of record is sufficient to support the instant determination.
Finally, complainant argues that BM's reasons are not credible because
she rescinded a prior (February 1996) CM for corrections after a meeting
with him, and then issued the March 1996 CM with restated reasons.
However, we find that BM's willingness to fully explore the matter,
and to issue a corrected CM, further defeats complainant's claim that
she was motivated by discriminatory animus and reprisal.
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 (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
December 22, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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
________________________
Equal Employment Assistant 1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.