01986310
05-18-2000
Carlos E. Diaz, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Carlos E. Diaz v. Department of Transportation
01986310
May 18, 2000
Carlos E. Diaz, )
Complainant, )
) Appeal No. 01986310
v. ) Agency No. DOT-3-97-3082
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
)
DECISION
INTRODUCTION
Carlos E. Diaz (complainant) timely filed an appeal on August 17, 1998,
with the Equal Employment Opportunity Commission (the Commission) from
a final agency decision (FAD), received by complainant on July 16, 1998,
concerning a complaint of unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> The Commission hereby accepts the appeal in accordance
with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R.
� 1614.405).
ISSUE PRESENTED
Whether the agency correctly determined that complainant was not
discriminated against on the basis of national origin (Hispanic) when
he was asked to take a downgrade, reassigned to a detail, and relocated
to a different office.
BACKGROUND
At the time of the alleged discrimination, complainant was employed
by the agency as a Supervisory Aviation Safety Inspector, GS-1825-15.
He filed a formal complaint, on August 22, 1997, claiming that he was
discriminated against on the basis of his national origin (Hispanic) when
his Facility Manager (FM) asked him to request a downgrade reassignment
and then reassigned him to a detail of unclassified duties and relocated
him to a different office. The agency's FAD found that complainant was
not discriminated against. This appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part 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 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.
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. 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. 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. 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).
In response to complainant's claim that FM asked him to request a
downgrade reassignment and then reassigned him to a detail of unclassified
duties and relocated him to a different office, we find that the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
FM stated that he never asked complainant to request a downgrade,
rather he presented it to complainant as an option since complainant
expressed a desire to transfer. According to FM, complainant did not
want a downgraded reassignment so the option was discussed no further.
FM also stated that complainant was chosen for the detail "because of
his airworthiness experience, technical qualifications and familiarity
with the issues" that the detail concerned. FM further stated that it
was routine to detail employees to temporary assignments and to assign
"unclassified duties" to employees, who were detailed, so that their
job descriptions and pay status could stay the same. FM testified that
complainant's job description and duties remained the same, and that
complainant's detail was only temporary. He did not comment on the
relocation of complainant's office.
Since the agency articulated such a reason, the burden returns to
complainant to demonstrate that the agency's articulated reason was
a pretext for discrimination. We find that complainant has failed to
do so. Although complainant has shown that he and FM did not have a
good working relationship, he has not shown that any of FM's comments
to him or actions toward him were made because of complainant's national
origin. He has also not demonstrated that he was treated differently
than any of the other supervisors who were detailed. Additionally,
the record contains no other evidence of pretext. Therefore, the
agency's determination that complainant failed to establish that he was
discriminated against, with respect to this claim, was correct.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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:
05-18-00
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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________________
Date
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.