Francisco Morillo, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 31, 2000
01991927 (E.E.O.C. May. 31, 2000)

01991927

05-31-2000

Francisco Morillo, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Francisco Morillo, )

Complainant, )

)

v. )

) Appeal No. 01991927

Togo D. West, Jr., ) Agency No. 98-0791

Secretary, )

Department of Veterans Affairs, )

Agency. )

______________________________)

DECISION

INTRODUCTION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (the Commission) from the final agency decision (FAD)

concerning his allegation that the agency discriminated against him

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. The appeal is accepted by the Commission in

accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405).<1> For the reasons set forth below, we AFFIRM

the FAD.

ISSUES PRESENTED

Whether complainant was discriminated against because of his national

origin (Hispanic) or in retaliation for prior EEO related activity when:

1) he was rated �Satisfactory� in his performance appraisal/proficiency

report, dated August 18, 1997; and

2) he was allegedly harassed, on September 2, 1997, when he was informed

that he might be reassigned to the agency's Aspinwall facility.

BACKGROUND

Complainant filed his formal complaint in September 1997. Following an

investigation, he was provided with a copy of the investigative file and

notified of his right to request a hearing before an EEOC Administrative

Judge (AJ). After complainant failed to request a hearing, the agency

issued a final decision on November 30, 1998. The agency found that

complainant had not been subjected to discrimination based on national

origin or in reprisal for engaging in prior EEO activity. It is from

that decision that complainant now appeals.

Complainant, at the time his complaint was filed, was a Patient Services

Assistant at the agency's Medical Center in Pittsburgh, Pennsylvania

(University Drive facility). He had been employed there since 1991.

In 1995, he was assigned to the Aspinwall facility, but returned to

the University Drive facility in 1997. In 1996, he received a �Highly

Successful� performance rating. Between 1995 to 1997, complainant

engaged in EEO activity involving his efforts to get a GS-7 position.

Management officials were aware of this EEO activity.

Complainant received a �Fully Successful� rating for the period ending

March 31, 1997. The rating official, A-1, was the Associate Chief,

Patient Affairs and was complainant's supervisor. A-2, Chief, Medical

Administration Service, concurred with the rating. Complainant received

a rating of �Exceptional� in the categories of �Program Administration,�

�Geriatric Competency,� and �ADP Security.� He was, however, rated as

�Fully Successful� in the areas of �Routine Procedures,� �Training,�

and �Interpersonal Relations.� According to complainant, the reasons

he was rated as �Fully Successful,� rather than �Highly Successful� or

�Outstanding,� were because he is Hispanic and had engaged in prior EEO

activity.

According to A-1, complainant's 1997 rating of �Fully Successful� was

based on his assessment of complainant's duty performance. He denied

complainant's contention that his national origin or prior EEO activity

was a factor. A-2 testified that, although he did not agree with A-1's

assessment of complainant's performance with respect to individual

elements,<2> he did approve the overall rating of �Fully Successful.�

According to A-2, complainant was �[n]ot reliable, not proactive, and

he disappear[ed] alot [sic].� In October 1997, the University Drive,

Aspinwall, and Highland Drive facilities consolidated under one management

structure. A-2 testified that, notwithstanding his reservations about

complainant, he needed to fill a vacancy at the Aspinwall facility.

He stated that complainant had the essential qualifications for the

position. Complainant indicated, however, that he did not want to go.

Therefore, A-2 asked another employee, who agreed to the transfer.

A-1 was not involved in complainant's proposed transfer to the Aspinwall

facility because he had taken another position. A-2, like A-1, denied

complainant's contention that his national origin and prior EEO activity

played any role in the above decisions.

The agency's final decision found that complainant was able to establish

prima facie cases of discrimination based on national origin and reprisal.

Management, however, provided a legitimate, nondiscriminatory reason for

complainant's performance rating and he was unable to establish pretext.

With respect to complainant's proposed transfer to the Aspinwall facility,

the agency also found that complainant failed to establish that he

was harassed based on his national origin and reprisal for engaging in

EEO activity when A-2 proposed his transfer to the Aspinwall facility.

This determination was based on the fact that there was no persuasive

evidence that the proposed transfer was based on discriminatory animus.

ANALYSIS AND FINDINGS

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 agency's FAD because

the preponderance of the evidence of record does not establish that

discrimination occurred.

CONCLUSION

Accordingly, it is the decision of the Commission to AFFIRM the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 (OF) 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); 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

__05-31-00_______ __________________________________

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

1On 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

2According to A-2, he would not have given complainant an �Exceptional�

for any of the elements.