0120091600
09-03-2009
Andres Perez, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Andres Perez,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091600
Agency No. IRS-08-0533-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 10, 2009 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.
During the period at issue, complainant was employed as a Revenue Agent, GS-0512-11, at the agency's Small Business/Self Employed Division in Poughkeepsie, New York.
On July 2, 2008, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the bases of race (Hispanic), national origin (Puerto Rican), sex (male), religion (Protestant), and color ("mix") when:
on or about April 4, 2008, he was not selected for the position of Revenue Agent (RA), GS-0512-12, advertised under Vacancy Announcement Number (VA No.) 50-30-SP8091613.
At the conclusion of investigation, complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On February 10, 2009, the agency issued the instant final decision.
In its February 10, 2009 final decision, the agency found that complainant established a prima facie case of race, national origin, sex, religion and color discrimination because the selectees were outside of complainant's protected group. 1 The agency found, however, that management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext.
The record reflects that five candidates, including complainant, applied for two positions of Revenue Agent, GS-11, at the agency's New Windsor, New York and Poughkeepsie, New York facilities. The record further reflects that all five candidates made the Best Qualified (BQ) list which was referred to the selecting official (SO) for consideration. The record reflects that in the BQ list, the two selectees that were selected for the subject positions had the highest ranking scores of 38 and 36, respectively while complainant was ranked fourth with an overall ranking score of 34.
SO stated that because all of the candidates for the two subject positions "were all prior GS11 Revenue Agents, same series, same position description, no interviews were conducted. Alternative ranking was used in this situation because they were all the same series and worked under the same position description." SO stated that he chose two selectees for the subject positions based on their training history, evaluations, rating on their appraisals and the written feedback on their evaluations. Specifically, SO stated "based on training, feedback from their manager (evaluations), the rating on their appraisals and the written feedback on the evaluations showing me they were rated accordingly, I then made my selections." SO further stated "I did not receive recommendations from anyone, only a BQ list showing the ranking scores."
SO stated that complainant's race, national origin, sex, religion and color were not factors in his determination to select the selectees for the subject positions. Moreover, SO stated "I only select based on merits."
Complainant's supervisor (S1) stated that the selections were based on "the last evaluation of record." S1 further stated that complainant was given an evaluation based on the documentation in file at the time it was written for the period of January 2006 through December 2006. S1 stated that the subject evaluation "was slightly higher than the previous annual of record. His evaluation was not written in light of anyone else's but was based strictly on his performance." Furthermore, S1 stated that she did not make any recommendations to the SO.
On appeal, complainant provides extensive arguments regarding the agency's decision. For example, complainant argues that the final agency decision was based on an incomplete investigation record. Complainant specifically argues that "the agency's investigative work on this case was completely deficient and no conducted in a proper manner The agency's reliance on current appraisals masterminded by the individual accused of inequitable treatment, [S1], as objective proof of nondiscrimination is a blatant and gross error." Complainant argues that he established that he was subjected to discrimination because he was more qualified than the selectees. In support of his assertions, complainant submitted a copy of his undated declaration in support of the instant complaint and a Notice of Election requesting a hearing dated December 15, 2008.
In response, the agency argues that the two documents complainant submitted in connection with his appeal were not submitted prior to or during the investigation in this matter: a declaration in support of his complaint and a Notice of Election requesting a hearing dated December 15, 2008. The agency argues that because the two documents were not submitted during the investigation of the instant complaint, these documents should not be considered herein. The agency further argues that complainant was provided numerous opportunities to submit a declaration and to request a hearing, but that he did not do so.
A claim of disparate treatment is examined under the three-party 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 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).
The agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination. Moreover contrary to complainant's assertions on appeal, the Commission determines that the EEO investigation was adequate.
Finally, we note that complainant for the first time on appeal requests a hearing before an EEOC Administrative Judge. However, complainant is not entitled to a hearing because he did not request one within thirty (30) days from receiving the Report of Investigation with the Transmittal of the Investigative File (Notice), dated November 13, 2008. The Transmittal provided him with notice of his right to request a hearing.
The record contains a copy of a letter prepared by the Branch I Manager of the EEO and Diversity Field Services, dated January 14, 2009. This letter, directed to the Director of the Office of Civil Rights and Diversity, states that thirty days have elapsed since the agency issued the November 13, 2008 Notice to complainant and because complainant did not respond, she requested that the agency issue a final decision. Accordingly, we find that the agency properly issued a final agency decision when complainant failed to request either a hearing or a final decision within 30 days from receiving the Notice. 29 C.F.R. � 1614.110(b).
In summary, and 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 final decision because the preponderance of the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 3, 2009
__________________
Date
1 In its final decision, the agency stated that even though the basis of religion was not identified in the formal complaint, this basis was nevertheless investigated, because complainant raised it during EEO counseling. Moreover, the agency noted that the basis of color had been raised in the formal complaint, but that the agency inadvertently failed to list this basis in its acceptance letter. The agency noted, however, that the "related" bases of race and national origin were investigated. The agency acknowledged that there was not evidence in the record on the basis of color. However, the agency assumed that the selectees were of a different color than complainant, and found that a prima facie case of discrimination on "all bases" had been established.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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7
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