0120073228
11-19-2009
Jose Esparza, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Food Safety and Inspection Service), Agency.
Jose Esparza,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120073228
Hearing No. 370-2005-00523X
Agency No. FSIS200500325
DECISION
On July 11, 2007, complainant filed an appeal from the agency's June
12, 2007 final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether the AJ's finding after a hearing, that complainant failed to
establish disability discrimination when management did not select him
for a lateral transfer to a Processing Inspector position, is supported
by substantial evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a GS-9 Consumer Safety Inspector with the U.S. Department of Agriculture,
Food Safety Inspection Service (FSIS), Alameda District. After dealing
for several years with a two-hour commute between his home in Lodi,
California and his assignment in Oakland, California complainant submitted
an application for transfer to various assignments closer to his home.
When he heard that an assignment in Lodi, California was soon to open
up due to the impending retirement of another individual, complainant
submitted an application to be considered for a lateral transfer to
this position. Complainant's transfer request was ultimately denied.
Once the position was filled with another individual a year later,
complainant sought EEO counseling, and on April 14, 2005, he filed an
EEO complaint alleging that he was discriminated against on the basis
of disability (knee impairment) when management did not select him for
a lateral transfer to a Processing Inspector position, GS-182-9 (reduced
from a GS-1862-10).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on March 23, 2006 and
issued a decision on May 23, 2007.
AJ Decision
The AJ initially noted that although complainant had previously alleged
national origin discrimination, he subsequently withdrew that basis.
Additionally, the AJ noted that under the "reasonable suspicion" standard,
complainant's EEO counselor contact was timely. The AJ then found as
follows: the GS-10 Processing Inspector position in question became
vacant in November 2003 when the incumbent, retired. Unlike other GS-9
Inspector positions, this position was classified at the GS-10 level
because it required the incumbent to perform inspections at a prison
facility, thus exposing the Inspector to an increased risk by working
around convicted criminals. When the incumbent retired, the agency was
in the midst of implementing a new personnel system known as "Method
of Assigning Work" ("MAW"), which reclassified FSIS Inspector positions
throughout the agency. Among other things, this reclassification process
had the effect of downgrading all GS-10 Inspector positions to the GS-9
level because it was determined that their work assignments would only
support a GS-9 classification.
The AJ then found the following: the instant case arose from the
confusion caused by the reclassification process. Specifically,
after the incumbent retired, a management official (MO)1 received a
GS-9 lateral transfer list to fill the incumbent's GS-10 position,
suggesting that the position would now be offered at the GS-9 level.
The lateral transfer list had only one transfer candidate, complainant.
Understandably, complainant believed that he was, therefore, entitled to
the position. However, the agency maintained that this lateral list was
issued to MO in error, and that the position remained at the GS-10 level,
and complainant would not have been eligible for a lateral transfer into
a GS-10 Inspector position.
The AJ then indicated that the key issue in this case is whether the
position at issue was really ever available at the GS-9 level, or
whether the position remained at the GS-10 level. The AJ found that
the MAW reclassification process had the effect of downgrading the GS-10
Inspector positions to the GS-9 level because it was determined that their
work assignments would only support a GS-9 classification. See ROI,
Ex. B. The AJ further found based on the testimony in the record, that
the document that MO received had to have been the result of a clerical
error, and that the agency never, in fact, intended to offer this position
at the GS-9 level. In so finding, the AJ determined that all witnesses
"with any knowledge of the matter" testified "credibly and consistently"
that the position was never downgraded to GS-9. The AJ found that due
to such error, the position was subsequently "frozen" in May 2004,
and then filled with an individual who was eligible for a GS-10 the
following December. See Complainant's Exhibit 5.
The AJ further noted that the MO reasonably believed that the position
was going to be offered as a GS-9 level, and discussed the matter with
complainant. The AJ noted that it is further undisputed that MO informed
complainant in about December 2004 that he would not select him for the
position because he was concerned that complainant's knee impairment might
interfere with his ability to climb the stairs at his work assignments
(he worried about complainant's safety). Complainant testified that when
he protested that he was able to climb stairs in his current position
in the Oakland Circuit, MO told him, "Don't feel bad, because this
assignment is going to be broken up and absorbed into other assignments."
The AJ further found however, that complainant could not have assumed
the position in question because he did not qualify for it since he
was only a GS-9, and this was a GS-10 position. The AJ noted that had
complainant established that he suffered from a "disability," and that
he was qualified for the lateral transfer, [MO]s] reluctance to select
him on the basis of his knee impairment would likely have constituted
unlawful discrimination. The AJ, however, found no discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant initially asserts that he is disabled under the
Rehabilitation Act as well as "qualified" for the position in question.2
He asserts that in addition to other evidence of discrimination, there
is the proverbial "smoking gun" document, namely, MO admitted in writing
that complainant was not chosen for the position solely because of his
disability.3 He states that specifically, MO admitted at his deposition
and at the hearing that were it not for complainant's knee injury, he
would have given him the job. Complainant contends that the AJ's choice
of the McDonnell Douglas burden-shifting test should be reviewed de novo,
as this claim should have been analyzed under a direct-evidence test.
Complainant further asserts that the witnesses whose testimony the AJ
found credible was "fraught with contradiction, speculation and statements
that strain credulity." Complainant additionally notes that there was
not an ounce of evidence (beyond the witness' speculation) that a clerical
error occurred, or who committed it. Additionally, complainant contends
that the record overwhelmingly supports the notion that the position was
announced as a GS-9 and has been staffed (albeit temporarily) as a GS-9
ever since complainant was denied the position. In reply, the agency
requests that the Commission affirm the final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Initially, we find that this record does not contain direct evidence
of discrimination. "Direct evidence" is an action or statement of an
employer which reflects a discriminatory or retaliatory attitude, and
which correlates to the challenged act. See Caban-Wheeler v. Elsea,
904 F.2d 1549, 1555 (11th Cir. 1990); Thomas v. Dept. of State, EEOC
Appeal No. 01932717 (June 10, 1994). Although it is undisputed that
MO had stated his intention not to recommend complainant for reasons
related to his disability, the record indicates that this was not the
reason that he in fact was not selected.
Accordingly, we note that in analyzing a disparate treatment claim under
the Rehabilitation Act, where the agency denies that its decisions were
motivated by complainant's disability and there is no direct evidence of
discrimination, we apply the burden-shifting method of proof set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman
v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C.Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) he is an
"individual with a disability;" (2) he is "qualified" for the position
held or desired; (3) he was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to an
inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916
(7th Cir. 2001). The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy his burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
In order to be entitled to protection from the Rehabilitation Act,
complainant must make the initial showing that he was a "qualified
individual with a disability." Assuming arguendo that complainant is an
individual with a disability within the meaning of the Rehabilitation
Act, the AJ's conclusion that he did not prove, by a preponderance of
the evidence that he was qualified, is supported by substantial evidence
in the record.
A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education
and other job related requirements of the employment position such
individual holds or desires, and who, with or without reasonable
accommodation, can perform the essential functions of the position.
29 C.F.R. � 1630.2(m). The AJ, after holding a hearing in which she made
credibility determinations, concluded that the position in question was
advertised in error as a GS-9, when it should have been a GS-10.4 The
AJ found that due to such error, the position was subsequently "frozen"
and then filled with a GS-10 a year later. The AJ found that therefore,
complainant was not "qualified" because he was not actually eligible
to transfer into a GS-10 position. The Commission finds that the AJ's
ultimate conclusion that discrimination was not proven by complainant
is supported by substantial evidence in the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
order.
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
_______11/19/09___________
Date
1 MO was in fact just the "recommending official," but the record shows
that 100% of selectees had been those recommended by MO.
2 Complainant stated that despite the severity of his disability, it has
not prevented him from performing the essential functions of his job.
Complainant testified that his Oakland route includes three plants that
have stairs, and he has to walk up them at least once or twice every
day. Because of his injuries, he walks slowly and uses the handrail.
Although it takes him about four times as long as others to climb flights
of stairs, his injuries do not prevent him from performing his job
(as long as he is able to take breaks to sit and to do his work).
3 The document stated the following, in pertinent part:
I do not recommend the selection from the list provided, one candidate,
for lateral transfer to this current GS-9 position in Jackson, CA
. . . due to insufficient candidates... The one employee on the list
is highly qualified, and I have personal knowledge of his skills and
qualifications. The assignment has plants which require climbing of
stairs which this employee would be quite challenged and provide risk
of time lost previously experienced due by him due to his problems with
his legs mobility. I will consider this candidate for other openings in
the circuit where this disadvantage does not exist. I personally spoke
to the employee, [complainant], prior to making this decision and he
agreed with my decision and was thankful of this personal contact.
ROI, Ex. 12, at 1.
4 Although it is not clear exactly which clerk committed the error of
advertising the position at the improper grade, the AJ made credibility
determinations which led her to conclude that a clerical error must
have been committed. As noted above, credibility determinations will
be accepted unless documents or other objective evidence so contradicts
the testimony or the testimony so lacks in credibility that a reasonable
fact finder would not credit it.
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0120073228
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073228