01975062
01-29-1999
Guadalupe Ramos, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Guadalupe Ramos v. Department of the Treasury
01975062
January 29, 1999
Guadalupe Ramos, ) Appeal No. 01975062
Appellant, ) Agency No. 95-2019
v. ) Hearing No. 360-96-8613X
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning his 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.; and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Section 621 et seq.
See EEOC Order No. 960.001. In his complaint, appellant alleged that he
was discriminated against based on his race/national origin (Hispanic),
age (over 40) and reprisal for prior EEO activity when he was assigned
to the Windfall Profits Tax Program (the "Program").
Appellant, a Revenue Agency, GS-12, and all other employees in the
Tax Equity and Fiscal Responsibility Act section, were reassigned
after a reorganization, with appellant being reassigned to the Program.
The agency maintained that appellant, was particularly qualified to fill
its need for personnel in the Program because of his prior experience
in the Program, and that other members of his prior section also were
not given their preferred reassignments because of the limited number
of opportunities available. Appellant timely sought EEO counseling and
filed his instant EEO complaint, which was accepted and investigated by
the agency.<1> Thereafter, appellant timely requested a hearing before
an EEOC Administrative Judge ("AJ"). After a hearing, the AJ issued
a recommended decision ("RD") finding no discrimination. The agency
adopted the RD in its FAD.
In the RD, the AJ found that appellant established a prima facie case of
discrimination and reprisal, but failed to establish that the legitimate
nondiscriminatory reasons articulated by the agency for its actions were
a pretext for discrimination. Appellant had argued that the assignment
to the Program constituted a demeaning and undesirable posting because
the Program was "mop-up" work involving the completion of older cases.
However, the AJ found that it was not a demeaning posting because of
the large dollar amounts involved and the complexity of the cases.
While appellant contended that this assignment violated a settlement
agreement executed in connection with a prior EEO complaint, the AJ
noted that he was unable to produce a copy of that settlement agreement,
that relevant agency officials testified that they had no knowledge of
such an agreement, and that the agency's Director of EEO was unable to
locate any such agreement.
On appeal, appellant asserts that the Commission does not "give a
�hoot'" about Hispanic issues; complains that the AJ misstated his age
as 48 rather than 55; argues that the AJ's finding that the testimony of
agency officials was credible constitutes a typical determination made
by a racist non-Hispanic; argues that the assignment was demeaning and
that others had more experience than he and should have received the
assignment; contends that an official's testimony that the assignment
was prestigious because of its exposure to large companies could provide
opportunities for employment after retirement constituted direct evidence
of age discrimination and evidence of the agency's desire that appellant
leave its employ; alleges that the agency did not in fact "downsize" as
a result of the reorganization; and asserts that the agency is hostile
toward Hispanics and those who engage in EEO activity.
However, after a thorough review of the record, the Commission finds
that the RD adequately set forth the relevant facts and analyzed the
appropriate regulations, policies and laws. The Commission notes that it
generally will not disturb the credibility determination of an AJ when,
as here, such determinations are based on the AJ's observations of the
demeanor of the witnesses. Esquer v. United States Postal Service, EEOC
Request No. 05960096 (September 6, 1996); Willis v. Department of the
Treasury, EEOC Request No. 05900589 (July 26, 1990). Accordingly, the
Commission discerns no basis to disturb the AJ's finding that appellant
failed to establish discrimination. Therefore, it is the decision of
the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan 29, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The agency dismissed additional allegations originally contained in
this complaint on the bases that appellant failed to state a claim,
failed to timely seek EEO counseling and failed to cooperate in its
processing. See 29 C.F.R. �1614.107. On appeal, the Commission affirmed
the dismissal. See EEOC Appeal No. 01953531 (October 5, 1995).