0120080899
07-08-2009
Atanacio G. Sambrano, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Atanacio G. Sambrano,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120080899
Agency No. 06-40083-00833
DECISION
On December 4, 2007, complainant filed an appeal from the agency's October
29, 2007 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 accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Civil Engineer, GS-0810-11, in the Engineering and Planning
Department at the Naval Facilities Engineering Command (Engineering
Field Activity) Midwest, in Great Lakes, Illinois (hereinafter referred
to as the Activity). In October 2005, a request for personnel action was
initiated for a Civil Engineer, GS-12 position, with duty in the Capital
Improvements Design Department, under Vacancy Announcement No. DON 0810.
Complainant applied for the position. He was rated qualified and
referred for consideration along with nine other qualified candidates.
A five-member Interview Board reviewed ten resumes and interviewed four
candidates. Complainant was one of the four candidates interviewed
by the Board. Complainant was ranked second, based on raw scores
compiled after a review of the applicants and interviews.1 Although
complainant was ranked second, the Interview Board recommended him for
the position. According to the Chairman of the Interview Board, in making
its recommendation, the Board members considered the types of engineering
experience possessed by the applicants, not just their raw scores.
The Selecting Official (SO) (Caucasian/Mongolian, over 40) disapproved
the Board's recommendation, and made no selection. In February 2006,
the position was canceled. In December 2006, as a result of an agency
reorganization, a Civil Engineer, GS-12, from the Southern Division was
transferred to the Activity.
On March 4, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Filipino), national
origin (Asian Pacific Islander), color (brown), age (D.O.B: 10/01/44),
and in reprisal for prior protected EEO activity when on February 12,
2006, he learned the Activity had canceled the recruitment action for
a Civil Engineer, GS-12 position (Vacancy Announcement No. DON 0810).
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
The agency found that complainant failed to establish a prima facie
case of discrimination because no selection was made. The agency
also found that complainant failed to establish a prima facie case of
retaliation because he failed to establish a causal link between his
prior EEO activity and the cancellation of the position for which he
applied. The agency further determined that it articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, SO testified
that she canceled the position because she perceived a decrease in the
workload, and she was unsure that she would need another Civil Engineer
position. SO also explained that she noticed some abnormalities in the
Interview's Board report; namely, that the candidate who scored second
was recommended for the position. Accordingly, after she consulted with
the Executive Officer and the Management Services Director, she canceled
the recruitment action. The agency further concluded that complainant
failed to establish that its proffered reason for its actions was a
pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends, among other things, that his superiors
"took turns" keeping him at Grade 11 from 1995 to the present without
any grade promotion. Complainant alleged that he has not been promoted
because of an incident in 1997 between his wife and another individual
who was then the head of the engineering department. Complainant also
contends that Caucasians engineers, some of whom were unlicensed
engineers, were hastily promoted to GS-12. Complainant listed the
names of several Caucasians who were promoted between 1995 and 1998.
Complainant further argues that SO had no authority to act as the
selecting official and to have canceled the position. Complainant argues
that the agency discriminatorily canceled the position in order to
avoid having to offer it to him. Complainant contends that SO canceled
the position to be "in good grace with her mentor and benefactor," the
former head of the engineering department, who bore a grudge against him.
Complainant further contends that the agency's EEO Office committed
several irregularities in processing his complaint.
The agency requests that we affirm the FAD. The agency noted that the
comparative employees listed by complainant are not similarly situated
to him because those people are outside of complainant's working group,
location, and engineering field, and are under different supervisors.
ANALYSIS AND FINDINGS
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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment. Whitmire
v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,
2000).
Upon review, the Commission agrees that the agency has provided
legitimate, non-discriminatory reasons for having canceled the vacancy
announcement. More specifically, SO testified that she canceled
the position because she perceived a decrease in the workload, and
she was unsure that she would need another Civil Engineer position.
Complainant has adduced no evidence to support a finding that that reason
is a pretext for discrimination.
Further, the record does not support complainant's contention that he
was retaliated against when the agency canceled the vacancy announcement.
The record shows that the vacancy was canceled and no one was placed in
the position. In an attempt to show pretext, complainant, among other
things, contends that there were 20 job announcements at the Activity,
which is evidence of an increase in the workload, not a decrease as SO
alleged. We find this argument to be speculation on complainant's part.
We find that complainant has provided no evidence to shows that the
agency's business decision was in any way related to him or the filing
of his prior EEO complaint. We find that, other than complainant's own
conclusory assertions, he has provided no evidence that he was retaliated
against or that his race, color, national origin, or age were considered
with regard to the agency's actions.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision.
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
July 8, 2009
Date
1 Complainant's raw score was 3.96, while the first-place applicant's
raw score was 4.28.
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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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