Jose Esparza, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity CommissionNov 19, 2009
0120073228 (E.E.O.C. Nov. 19, 2009)

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

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Office of Federal Operations

P.O. Box 77960

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