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.