0120090274
02-02-2009
Carlos M. Ruiz, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Carlos M. Ruiz,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120090274
Agency No. FS200500350
DECISION
On October 18, 2008, complainant filed an appeal from the agency's July
16, 2008 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. The appeal is deemed timely1 and 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 Computer Assistant, GS00335-07, at the agency's International
Institute of Tropical Forestry (IITF) in San Juan, Puerto Rico.
Complainant's duties included creating and maintaining the internet web
page for IITF. On February 6, 2005, the Human Resources Office abolished
complainant's position after the agency contracted out complainant's
internet webpage duties. Instead of terminating complainant, the agency
placed complainant on a 120-day detail and subsequently reassigned him
to the Ouachita Civilian Conservation Center (OCCC) in Royal, Arkansas.
On June 3, 2005, complainant filed an EEO complaint alleging that he was
discriminated against on the basis of national origin (Hispanic) when,
on June 6, 2005, as a directed reassignment, the agency transferred him
from the International Institute of Tropical Forestry (IITF) in San Juan,
Puerto Rico, to the Ouachita Civilian Conservation Center (OCCC) in Royal,
Arkansas.
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.
Complainant now appeals to the Commission.
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").
Where, as here, complainant does not have direct evidence of
discrimination, a claim alleging disparate treatment is examined under
the three part analysis set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under this analysis, complainant initially
must 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. See St. Mary's Honor Center v. Hicks, 509
U.S. 502, 507 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802. Next,
in response, the agency must articulate a legitimate, nondiscriminatory
reason for the challenged actions. See Burdine, 450 U.S. at 253-54;
McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to
demonstrate by a preponderance of the evidence that the agency's action
was based on prohibited considerations of discrimination, that is, its
articulated reason for its action was not its true reason but a sham
or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine,
450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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,
713-14 (1983).
Here, the agency articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, complainant's internet webpage duties
were contracted out because complainant failed to develop the webpage
as directed. As a result, complainant's position was subsequently
abolished and the agency reassigned him to another position. Further,
the agency notes that the outsourcing and subsequent abolishment of
positions affected approximately 1,200 individuals, including those not
in complainant's protected class.
Complainant must now establish, by a preponderance of the evidence,
that the agency's legitimate, nondiscriminatory reasons are pretext
for discrimination. Complainant asserts that when creating the webpage
he followed the directions of management. Additionally, complainant
asserts that while the outsourcing affected approximately 1,200 employees,
approximately 500 of those employees were able to retain their positions.
We find that the record does not establish that discrimination more
likely than not played a role in the agency's decision to contract out
complainant's duties, abolish his position, and reassign him to a new
position. Even if complainant's assertion that he followed the directions
of management is true, there is no evidence that would establish that the
agency's actions were the result of discriminatory animus. Therefore,
we affirm the agency's final decision.
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 because a preponderance of the evidence does not establish
that discrimination exists as alleged.
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
February 2, 2009
Date
1 The record supports complainant's assertion that he did not receive
the agency's final decision until October 9, 2008.
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0120090274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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