Angel Ipina, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMay 21, 2009
0120091336 (E.E.O.C. May. 21, 2009)

0120091336

05-21-2009

Angel Ipina, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Angel Ipina,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120091336

Hearing Nos. 451-2008-00068X, 451-2008-00136X

Agency No. 8Z0J07027

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's November 13, 2008 final order 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.

Complainant alleged that the agency discriminated against him on the bases

of national origin (Mexican American) and reprisal for prior protected

EEO activity under Title VII when: on April 11, 2007, he was not selected

for promotion to Powered Systems Mechanic Supervisor; on October 2,

2007, he received a letter of concern regarding his use of leave; and

on October 9, 2007, his supervisor stared him down and cursed at him.

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). Complainant requested

a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).

On November 13, 2008, the Administrative Judge (AJ) issued a decision

after a hearing finding no discrimination. In reaching this decision,

the AJ determined that even if complainant could establish a prima facie

case, the agency had articulated legitimate, nondiscriminatory reasons

for its actions. The AJ stated that even assuming that the evidence

revealed some likelihood of miscalculation in scoring the applications

in question, overall the evidence was not enough to persuade him that

complainant was subjected to national origin discrimination when he was

not selected for promotion. Complainant focused on the administrative

matters that seemed to make the selection process inappropriate,

and his bare assertion, that he should have been scored higher and

selected for promotion, is not enough to show illegal discrimination.

The AJ determined that while complainant may not be completely wrong

in his opinion that the selection process should have been handled

differently, and incisively pointed out the possibility that at least

some of the scores were inaccurate, the evidence was not enough to show

that the actions of the selecting official amounted to national origin

discrimination. With respect to complainant's claim of retaliation when

he was issued a letter of concern regarding attendance, the record showed

that other similarly situated employees, not of his protected category,

were, like complainant, also issued letters of concern for attendance.

Under the circumstances, it appeared more likely that management

issued these letters of concern in an effort to control the epidemic

use of unscheduled leave by complainant and others in the department.

Concerning the October 9th incident involving complainant's supervisor,

the AJ determined that this one time incident does not appear to be

severe or pervasive enough to support a claim of harassment.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

On appeal, complainant mainly asserts that the selecting official

involved in his nonselection was less than truthful in his overall

assessment of complainant's ability to perform the duties of the job

in question. He specifically asserts that the selecting official's

"responsibility was to ensure that the selection process was fair to all

of the candidates, but instead he neglected his duties and ignored all

the obvious mathematical errors before he tabulated the total scores."

Complainant maintains that this official's conduct is "inexcusable and

he must be held accountable." However, beyond his bare assertions,

complainant has not produced evidence to show that the agency's

explanations are a pretext for discrimination.

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 final agency order because

the Administrative Judge's ultimate finding, that unlawful employment

discrimination was not proven by a preponderance of the evidence, is

supported by the record.

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

May 21, 2009

__________________

Date

2

0120091336

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091336