0120073955
09-25-2009
Jose R. Castro, Charles L. Figueroa, Jose E. Ortiz, Complainants, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Jose R. Castro,
Charles L. Figueroa,
Jose E. Ortiz,
Complainants,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal Nos. 0120073846, 0120073949, and 0120073955
Agency Nos. 7K0J06014F07, 7K0J06017F07, and 7K0J06018F07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainants'
appeal from the agency's July 31, 2007, and August 16, 2007,1 final
decisions concerning their equal employment opportunity (EEO) complaints
alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Upon review, the Commission finds that the complaints herein are like
and related and so, in the interest of judicial economy, the three
complaints listed above have been consolidated. See EEOC Regulation 29
C.F.R. � 1614.606. Complainants alleged that the agency discriminated
against them on the bases of national origin (Hispanic/Puerto Rican)2,
sex (male), and reprisal for prior protected EEO activity when:
EEOC Case No. 0120073846
1. On April 24, 2006, management denied complainant's request for
payment for temporary quarters subsistence expense (TQSE);
2. On June 22, 2006, the Major presented a letter to complainant
alleging that complainant had submitted false claims to deceive the
U.S. Government; and
3. On August 5, 2006, management did not non-competitively promote
the complainant.
EEOC Case No. 0120073949
4. On or about May 1, 2006, the Major notified an agency outside
the Air Force that he believed complainant falsified claims for TQSE; and
5. On or about November 7, 2005, management did not non-competitively
promote complainant to General Series (GS) -07;
EEOC Case No. 0120073955
6. On or about May 1, 2006, the Major denied complainant's
TQSE claim; and
7. On or about November 7, 2005, management failed to
non-competitively promote complainant to General Series (GS)-07.
The record reveals that complainants were employed as Firefighters
(Hazardous Materials Operations), GS-0081-06, in the Fire Department,
325th Civil Engineering Squadron at Tyndall Air Force Base (AFB), Florida.
Complainants primarily worked as driver-operators of firefighting vehicles
engaged in hazardous materials operations. Due to base closures, the
three complainants were reassigned from Puerto Rico to the Tyndall AFB
in Florida. As a result of their permanent change of duty station, they
were eligible for TQSE, which reimbursed an employee for up to ninety
(90) days of living expenses incurred while searching for a new permanent
residence. Following the submission of their claims for the first sixty
days at Tyndall AFB, complainants were notified that irregularities were
found in their TQSE claims. Complainants were asked to justify their
claimed expenses and were told that the matter was going to be forwarded
to the General Services Administration Board of Contract Appeals for a
review and final decision. Two of the complainants submitted expenses
for an additional thirty days. Those claimed expenses were denied.
Further, complainants indicated that in March 2004, the Office of
Personnel Management (OPM) revised the Position Classification Standard
for Fire Protection and Prevention Series GS-0081. As a result of
the revisions made by the Office of Personnel Management (OPM) with
regard to their series, complainants maintained, they should have been
promoted no later than three months after their arrival at Tyndall AFB.
The based this belief on the fact that they had the Hazardous Material
Technician certifications that were required by OPM for promotion.
Following an investigation by the agency, complainants requested that
the agency issue a final agency decision (FAD). In all three cases the
FAD found that the agency had articulated legitimate, nondiscriminatory
reasons for its actions which complainants had failed to show pretext
for discrimination. Specifically, the FAD found that complainants'
requests for TQSE reimbursement were found to be suspicious because,
for each complainant, the total amount requested contained very similar
dollar amounts for meals. It was also noted that the claimed expenses for
each and every meal generally came to within five dollars or less of the
maximum amount of seventy-five dollars allowed to be claimed without the
claimant having to produce receipts for the meals. The agency explained
that a 1st Lieutenant was ordered to meet with each complainant and
have them complete lost receipt forms for each meal claimed as being
reimbursable, and to explain to them that TQSE reimbursed only actual
expenses. Despite this meeting, two of the complainants submitted a
claim for a third thirty-day period that again contained what the Major
found to be excessive expenditures for meals without supporting receipts.
These two claims were denied and the Office of Special Investigations
(OSI) was contacted to investigate these claims. The results of the
investigation found that the claims were "doubtful claims."
The agency's FAD also indicated that a letter was issued on June 22,
2006, to one of the complainants because the Major believed complainant's
TQSE submission was unreasonable and was a doubtful claim. The Major
indicated that he wanted to notify the complainant that he was entitled
to submit information for the investigation.
Further, with regard to complainant's assertions regarding promotion,
the agency explained that no firefighters at Tyndall AFB had been
non-competitively promoted as a result of OPM's changes to the position
classification standards for the Fire Protection and Prevention
Series, GS-0081 series. The agency indicated that there was not an
across-the-board grade increase in every position. Instead, it had been
decided that the facility would retain a "multi-tiered grade structure to
provide opportunities for growth and advancement in the organization."
As such, only vacant positions were upgraded, and this resulted in
one GS-06, five GS-07 and two GS-08 positions that were available.
The agency noted that eligible firefighters self-nominated for the
announced vacancies, and were referred to selecting officials under merit
promotion procedures. The agency maintained that no one was upgraded
solely because he or she had completed hazmat training.
The FAD found that complainants failed to demonstrate that the agency's
proffered nondiscriminatory reasons were pretext for discrimination.
The agency noted that, with respect to the claims regarding TQSE, other
than complainants indicating that they did not think their TQSE claims
were unreasonable and that the claims were within the allowable limits
established by the government, they provided no evidence to support their
claim.3 Additionally, regarding complainants' claims that they should
have been promoted, the agency noted that complainants again provided
no evidence that management had a mandate to promote firefighters who
had received Hazardous Materials Technician certification. The agency
indicated that complainants had produced no evidence that unlawful
factors were considered with regard to these incidents.
On appeal, the complainants in EEOC Appeal Nos. 0120073949 and 0120073955
submitted essentially identical briefs. Complainants request a decision
in their favor and indicate that they have been discriminated against by
the entire chain of command. The complainants indicate that there is
a pattern and practice of discrimination at the Tyndall AFB location.
Complainants argue that they claimed TQSE amounts that were allowable
under the rules and were incorrectly asked to verify the amounts
when in fact the amounts they requested did not require a receipt.
Further, they maintain that other firefighters were promoted to Fire
Fighter Hazardous Materials Operator and they were not. They maintain
that they were retaliated against for their opposition to the agency's
unlawful employment practices. Complainants contend that their RIF
rights were not honored. Finally, complainants request that their cases
be consolidated.4
On appeal, the agency argues that its finding of no discrimination
should be upheld. The agency indicates that other than complainants'
uncorroborated allegations, they have provided no evidence which shows
that the agency's reasons were pretext for discrimination. The agency
also requests that these cases not be consolidated because each of the
complaints has different TQSE amounts and each complaint has gone through
the investigative process separately.
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 final
decisions. The Commission finds that assuming arguendo that complainants
established a prima facie case with respect to all bases alleged, the
agency articulated a legitimate nondiscriminatory reason for its action,
namely, that with respect to issues 1,2,4, and 6, the TQSE amounts were
called into question and TQSE amounts were not paid because for each
complainant the total contained very similar dollar amounts for their
meals and the claimed expenses for each and every meal generally came
to within five dollars or less of the maximum amount of seventy-five
dollars allowed to be claimed without the claimant having to produce
receipts for the meals. Additionally, complainants were notified that
the claims were under investigation so that they could respond to the
allegations being made against them.
Further, with respect to issues 3,5, and 7, not being promoted even
though they had the required certification, the agency explained that
no one was non-competitively promoted as a result of OPM's changes
to the position classification standards for the Fire Protection and
Prevention Series, GS-0081 series. The evidence reflects that those
fire fighters who were promoted went through a selection process and
were not automatically promoted. Additionally, with regard to the
complainants' contentions on appeal, the Commission finds that other
than conclusory statements, the complainants have not provided any
evidence which indicates that their protected bases were considered
with regard to any of the incidents involved nor have they shown that a
pattern and practice of discrimination exists against Puerto Ricans at
the Tyndall, AFB. We agree that the complainants have failed to show
that the agency's reasons were pretext for discrimination. Accordingly,
the Commission finds the preponderance of the evidence of record does
not establish that discrimination occurred.
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
September 25, 2009
Date
1 The final agency decisions for EEOC Case Nos. 0120073949, and
0120073955, were issued on August 16, 2007.
2 Complainants originally included race (Hispanic) as a basis.
The Commission notes that, in the context of Title VII, the term
"Hispanic" connotes a national origin rather than a race.
3 The agency indicated that the expenses were questionable because daily
claims for each of the three meals per day were up to the maximum of
seventy-five dollars ($75.00) each on most days and the OSI investigation
did not support complainants reported expenses. The agency also believed
that the prices listed for school lunch and lunch for complainants were
too high for the area.
4 The complainant in EEOC Appeal No. 0120083846 did not submit an
appeal statement addressing the substance of his appeal, but did request
consolidation of his appeal with the others.
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0120073846
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120073846