01970587
03-03-2000
Guadalupe Ramos, Complainant, Lawrence H. Summers, Secretary, Department of Treasury, Agency,
Guadalupe Ramos v. Department of Treasury
01970587
March 3, 2000
Guadalupe Ramos, )
Complainant, )
) Appeal No. 01970587
) Agency No. TD-952256
)
Lawrence H. Summers, )
Secretary, )
Department of Treasury, )
Agency, )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision 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, as amended, 29
U.S.C. � 67 et seq.<1> Accordingly, the appeal is accepted in accordance
with 64 Fed. Reg. 37, 644, 37, 659 (1999) (to be codified at 29 C.F.R. �
1614.405).
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the bases of race (Mexican<2>), age (DOB 5/12/34), and
reprisal (prior EEO activity<3>),when he was suspended from duty for 14
calendar days and laterally re-assigned.
BACKGROUND
Complainant was a GS-12 Revenue Agent with the Internal Revenue Service
(IRS) at the Austin Compliance Center (AUCC), Austin, Texas. On October
3, 1994, complainant sent a letter to the Attorney General of the United
States, various members of Congress, the IRS Commissioner and his manager
claiming that senior-level IRS officials, including a Labor Relations
Specialist engaged in a criminal conspiracy to deny his civil rights and
to commit felony insurance fraud.<4> Complainant alleged that the Labor
Relations Specialist created a Hispanic holocaust for educated Mexicans
and attempted to drive Hispanics out of the IRS.<5> Complainant also
accused the Labor Relations Specialist of mis-using her IRS position to
illegally purchase a house at a price below its market value.
The Director, AUCC (Director) reviewed complainant's letter with the
Special Assistant to the IRS Commissioner and contacted the IRS Inspection
Service to investigate complainant's charges. The ensuing investigation
determined that complainant's allegations were unfounded.<6>
On December 8, 1994, representatives of the Inspection Office met
with complainant and his union steward. The Inspection Officers
informed complainant that he was the subject of a non-criminal conduct
investigation because he knowingly made false statements in his letter,
and he created a disturbance in the workplace. Complainant stated to
the officers that his statements in the letter may have been inaccurate
but that it was not his responsibility to verify their accuracy.
On February 3, 1995, the Director issued complainant a letter proposing
to terminate his employment for conduct unbecoming an IRS employee.
In his letter the Director expressed serious concern for complainant's
judgment, especially considering his position of trust and responsibility
as a revenue agent. The Director consulted with the Special Assistant
to the Commissioner and the Assistant Regional Counsel for advise in
determining appropriate discipline, and reviewed the agency's guidelines
for penalty determinations.<7>
Complainant appealed in writing to the Regional Commissioner, arguing
that his first amendment rights were violated, that he should not be
disciplined for reporting wrongdoing and that his actions were protected
under the Whistle-blower Statute. The Regional Commissioner determined
that complainant's termination could not be sustained. He and the
Director then decided to issue a lesser discipline.
On April 3, 1995, the Director issued complainant a 14-day suspension from
duty, effective April 10, 1995, and informed him that, upon returning,
he would be laterally reassigned to the Austin District Office to classify
tax returns.<8>
Complainant filed a formal complaint arguing that his suspension and
re-assignment were based on discrimination and reprisal. Complainant
claimed that his re-assignment was punitive and stated that his new
workstation, while in a high traffic area of the building, was isolated
from co-workers. He was not issued a computer or a telephone.
On March 19, 1996, following an investigation into complainant's claims,
the agency issued complainant an election notice requesting that he
state how he wished to proceed with his complaint. Complainant requested
a second copy of the notice plus a Designation of Representation form.
The agency forwarded these to complainant on April 17, 1996. Complainant
did not respond to the election notice.
The agency issued a final decision on September 30, 1996, finding that
complainant failed to establish a prima facie case of discrimination based
on race and age because he failed to identify similarly situated employees
outside his race and age group who received more favorable treatment.
The agency found that complainant established a prima facie case based
on reprisal, but found however, that the agency stated legitimate,
nondiscriminatory reasons for its actions.
Complainant argues in his appeal that the agency presented false
information in the investigative file, and that the agency attempted
to characterize him as a discordant Mexican in order to support its
racist and discriminatory acts. He also argues that the agency fails to
present any evidence of his disruptive conduct or prove that he created
a disturbances in the workplace.
The record indicates that between October 1993 and June 1995, forty
nine AUCC employees received disciplinary action, including warnings,
suspension and removal. These included 29 whites, 14 Hispanics, 5
Blacks and one Asian/Pacific Islander. Their ages ranged between 29
and 56 years old. Nine had prior EEO activity.
FINDINGS AND ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Complainant has the initial burden
of establishing a prima facie case of discrimination. If complainant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Complainant must then prove, by a preponderance of the evidence,
that the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In
an ADEA case, the ultimate burden remains on complainant to demonstrate,
by a preponderance of the evidence, that age was a determinative factor.
Loeb v. Textron, 600 F. 2d 1003 (1st Cir. 1979); Fodale v. Department of
Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).
This established order of analysis, in which the first step normally
consists of determining the existence of a prima facie case, need not
be followed in all cases. Where the agency articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e., complainant's
unfounded, inflammatory and potentially libelous accusations that
high-level managers and the Labor Relations Specialist conspired to
commit criminal acts, and that the Labor Relations Specialist engaged
in widespread racist acts designed to force Hispanics from the agency.
Complainant published his allegations in a letter sent to the highest
levels of Federal government, causing the agency to expend resources on an
investigation which disturbed and disrupted the working environment for
each of the officials named in the letter. The Director consulted with
senior management and legal counsel, and reviewed agency guidelines in
determining appropriate discipline. The Regional Commissioner reviewed
complainant's response to the proposed termination and decided with the
Director that suspension and re-assignment were appropriate.
The burden returns to complainant to demonstrate that the agency's reason
was a pretext for discrimination, that is, that the agency was more likely
motivated by discriminatory reasons. Burdine, 450 U.S. at 253. Complainant
provided no evidence in support of his claim that the agency suspended
and re-assigned him based on his race or age. The record reveals that
other employees of various races and ages were also suspended. Complainant
fails to prove that he was treated differently than similarly situated
employees based on race or age, and has not proven that the agency's
articulated reasons were a pretext for discrimination.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that he engaged in
protected activity; 2) that the alleged discriminating official was aware
of the protected activity; 3) that he was disadvantaged by an action of
the agency contemporaneously with or subsequent to such participation;
and 4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The Commission finds that complainant established a prima facie case of
discrimination based on reprisal. The record establishes that complainant
engaged in protected activity and that the Director was aware of that
activity. Four complaints were pending at the time of complainant's
proposed termination, suspension and re-assignment. Thus, a causal
connection can be shown based on closeness in time between the events.
The burden returns to the agency to articulate some legitimate,
nondiscriminatory reason for its action. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981). The Commission finds
that the agency articulated legitimate, non-discriminatory reasons
and provided justification for the discipline and re-assignment.
Complainant's written accusations were unfounded. He admitted that he
did not know if his claims were accurate. His actions harmed other
employees and disrupted their workplace. His statements caused the
agency to lose confidence in his judgment.
At this point, complainant bears the burden of establishing that
the agency's articulated reasons are a pretext for discrimination.
Complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly by showing that
the agency's proffered explanation is unworthy of credence. Burdine,
450 U.S. at 256. The Commission finds that complainant fails to
offer any credible statements in support of his claims. In his appeal,
Complainant offers only more accusations and innuendo.
CONCLUSION
Accordingly, the decision of the agency is proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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
March 3, 2000
DATE Carlton 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:
1 On 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.
2 The EEOC views the group "Mexican" as denoting a national origin,
rather than a race.
3 The record indicates that complainant filed ten EEO complaints.
Four were pending at the time he filed the instant complaint.
4 Complainant's letter relayed an incident occurring on September 28,
1994, in which complainant and a co-worker were involved in a minor
auto accident in the IRS parking lot. Complainant refused to provide
liability insurance information to the co-worker. The co-worker filed
an accident report and the Labor Relations Specialist contacted
complainant, instructing him to also file a report and to provide
insurance information.
5 Complainant compared the Labor Relations Specialist to a "Nazi Gestapo
genocide specialist."
6 The Inspection team interviewed several individuals, including the
Labor Relations Specialist and the real estate agent, and secured copies
of the deed and other real estate papers relating to the purchase.
7 Penalty Factor No. 27 (Other Offenses-General) defined an offense
having substantial adverse impact of the employee's ability to perform
and to accomplish the mission of the agency because of the seriousness
of the misconduct, the loss of trust or confidence in the ability of
the employee to perform duties successfully, and/or significant actual
or potential impact on the agency. Discipline ranges from a 14-day
suspension to removal.
8 In his affidavit, the Director stated that complainant was re-assigned
so that he could make a fresh start.