01a55028
08-09-2006
Mamerto P. Capil, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency) Agency.
Mamerto P. Capil v. Department of Defense
01A55028
August 9, 2006
.
Mamerto P. Capil,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency)
Agency.
Appeal No. 01A55028
Agency No. DECWP20030088
Hearing
No. 340-2005-00061X
DECISION
Complainant filed a formal EEO complaint in which he claimed that the
agency discriminated against him on the bases of his race (Filipino),
national origin (Filipino), sex (male), age (54) and in reprisal for
his previous EEO activity under Title VII and the Age Discrimination in
Employment Act when:
1. On June 19, 2003, complainant was not selected for the position of
Commissary Management Specialist (Merchandising) (GS-1144-07).
2. On June 19, 2003, complainant was not selected for the position of
Meatcutter Supervisor (WS-7404-07).
3. On July 22, 2003, complainant's annual leave request was denied.
4. On August 7, 2003, a certain individual became the Store Director
and complainant's supervisor.
5. On August 20, 2003, complainant's work schedule was changed.
The agency accepted and investigated claims 1-5 of the complaint and
thereafter referred the matter to an Administrative Judge (AJ), pursuant
to complainant's request for a hearing. Without holding a hearing,
the AJ issued a decision finding no discrimination. The AJ found that
complainant failed to establish a prima facie case of discrimination on
the alleged bases with regard to the two nonselections. The AJ found
that complainant did not apply for either of the positions at issue.
With regard to claim (3), the agency stated that complainant was denied
leave based on a staffing need. The agency claimed that two of the three
Computer Assisted Orderers were needed on duty at all times and that
one of the Computer Assisted Orderers was already taking leave during
the period sought by complainant. The AJ found that the agency set
forth a legitimate, nondiscriminatory reason for denying complainant's
leave request. With respect to claim (4), the agency stated that the
individual who became the Store Director and complainant's supervisor
was appointed to the position pursuant to a memorandum stating that all
Computer Assisted Orderer positions, in all stores, were to be realigned
under the Store Director. The AJ found that this was a legitimate,
nondiscriminatory reason for the appointment of the relevant Store
Director. The AJ found that complainant failed to establish that the
agency's articulated reason was pretextual or that the underlying reason
for making the relevant individual the Store Director and complainant's
supervisor was due to complainant's protected classes. As for claim (5),
the agency stated that the changes to complainant's schedule occurred
because of a need for adequate Computer Assisted Orderer coverage.
The agency stated that schedule changes were made to ensure there would
always be two Computer Assisted Orderers available to work everyday.
The AJ found that this constituted a legitimate, nondiscriminatory reason
for the schedule changes. According to the AJ, complainant failed to
show that this reason was pretextual. The AJ observed that a female
Computer Assisted Orderer also had her schedule changed.
By final action dated July 28, 2005, the agency stated that it was fully
implementing the AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
With respect to complainant not being selected for the two positions at
issue, we shall assume arguendo that complainant set forth a prima facie
case of discrimination on the alleged bases. The agency stated that
complainant was not on the referral list of candidates for the Commissary
Management Specialist position and that he had not expressed an interest
in the position. According to the Human Resources Specialist, complainant
was not on the referral list because he was not registered for GS-05 or
GS-07 level positions, only GS-09 through GS-12 vacancies. With regard to
the Meatcutter Supervisor position, the agency stated that complainant did
not apply for the position and that the selectee was the only candidate
who applied for the position. As for complainant's leave request being
denied, the agency stated that the request was denied because one of
the other two Computer Assisted Orderers had already requested leave
for that time period and it was necessary to have two Computer Assisted
Orderers on duty. As for the individual at issue becoming the Store
Manager and complainant's supervisor, the agency stated that the Deputy
Director issued a memorandum regarding leadership items stating that all
Computer Assisted Orderer positions, in all stores, were to be realigned
under the Store Director. With respect to complainant's schedule change,
the agency stated that complainant had been frequently absent and that
the absences caused scheduling difficulties because there was inadequate
Computer Assisted Orderer coverage. The agency stated that the schedule
changes were made to ensure that there would always be two Computer
Assisted Orderers available to work everyday. We find that the agency
articulated legitimate, nondiscriminatory reasons for the alleged actions.
Complainant claimed that the Store Director was aware of his interest in
the Commissary Management Specialist position. We find that complainant
has not refuted the agency's position that he was not on the referral
list because he was registered for GS-09 through GS-12 positions and not
GS-05 or GS-07 positions. As for the Meatcutter Supervisor position,
complainant argued that he had meatcutting experience and that the
position had been taken out of the 1144 series in order to avoid selecting
him. Complainant's argument does not negate the fact that he did not
apply for the relevant position and therefore we find that he has not
established that the agency's reason for not selecting him was pretext.
With respect to being denied a leave request, complainant contended that
it was not essential to always have two Computer Assisted Operators on
duty since there were occasions where he had been on duty by himself.
We find that the fact that complainant has performed at times by himself
in this position is not sufficient to refute the agency's explanation that
two Computer Assisted Orderers were needed and that a coworker had already
been granted leave for the relevant time period. Complainant argues
that the individual who became the Store Director and his supervisor was
appointed to these positions in reprisal for his previous EEO activity.
This argument does not refute the agency's position that the appointment
was made in response to a decision that all Computer Assisted Orderer
positions, in all stores, were to be realigned under the Store Director.
Complainant has not shown that this agency policy was effected with the
intent of discriminating against him. As for complainant's schedule
being changed, complainant has not refuted the agency's position that he
had numerous absences that caused scheduling difficulties and inadequate
staff coverage. We find that complainant has not established that the
agency's stated reasons were pretext intended to mask discriminatory
motivation.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 9, 2006
__________________
Date