0120082526
09-24-2009
Eduardo Diaz, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Eduardo Diaz,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082526
Hearing No. 410200700003X
Agency No. ARFTMCPH05NOV12399
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 1, 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.
Complainant alleged that the agency discriminated against him on the bases
of national origin (Hispanic-Puerto Rico) and color (white) when he was
charged with criminal activity in the early morning of November 19, 2005.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ) but withdrew his request sometime during
October-November 2007. The matter was returned to the agency to issue
a final agency decision (FAD). The agency thereafter issued a FAD,
finding no discrimination.1
At the time of the events giving rise to this complaint, complainant
worked as a Police Officer at Fort McPherson, Georgia. Complainant's
supervisor, Captain S (black) (S1), accused complainant and another
officer (black) (O1) of trying to break into his office; complainant
and the other officer were charged and terminated in January 2006.
Complainant contended that he and O1 went to check the security of
the building, and denied that he attempted to break into S1's office.
S1, however, stated that he saw O1 trying to do so and that she was
accompanied by another officer; because O1 and complainant had gone to
the building together and were the only ones who did so, he concluded
that complainant was the second officer. Complainant contended that S1
was biased against white employees, had all the white officers moved to
another facility, and placed black officers in their places, events that,
if they occurred, took place after he was removed from the premises.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Generally, claims of disparate treatment are examined under the
tripartite analysis from the Supreme Court's decision 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).
Once complainant has established a prima facie case of discrimination, the
burden moves 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). After the agency explains its reasons, the
burden reverts to the complainant to demonstrate by a preponderance of
the evidence that the agency's reason(s) for its action was a pretext
for discrimination. At all times, complainant retains the burden of
persuasion, and it is his obligation to show by preponderant evidence that
the agency acted on the basis of a prohibited reason, i.e., his color or
national origin. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716
(1983). For purposes of analysis, we assume, arguendo, but do not find,
that complainant established a prima facie case of discrimination.
The agency explained, through S1, that there had been previous attempts to
break into his office. On the morning of November 19, 2005, he arrived
very early and was aware that two officers were outside his office;
he did not reveal his presence to them. Soon thereafter, there were
three or four attempts to push his door open. At one point, S1 stated
that he glimpsed a view of O1's face and heard another officer as well.
S1 stated that, after he heard them leave, he rushed to the patrol desk
and asked who had been to his building. The patrol desk office stated
that complainant and O1 had just returned from there. Based upon
S1's full statement and explanation, we find that his conclusion
that complainant and O1 attempted to break into his office was not an
unreasonable conclusion, nor was his determination to immediately remove
complainant and O1. We find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions when it terminated complainant.
Other than his unsupported argument that S1 was biased towards the
white officers, complainant has not demonstrated pretext, that is,
he has not demonstrated that the reasons articulated by the agency for
its actions were not its true and real reasons but were taken in order
to discriminate against him and influenced by legally impermissible
criteria, e.g., complainant's race or national origin. See St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
In his appeal statement, complainant contends that the agency did
not produce evidence that he attempted to break into S1's office and
noted that the charges against him were eventually dismissed. In this
EEO matter, the question before us is whether complainant was treated
less favorably than others because of his national origin and color
and not whether he committed the infraction which was charged. Thus,
complainant's arguments are not relevant to the question at issue.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred 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
September 24, 2009
Date
1 The agency indicated that complainant's claim was unclear and that
it would address it as alleging discrimination based on national origin
and color in regard to his termination.
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0120082526
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120082526