0120072716
12-17-2009
Miguel R. Valero, Complainant, v. James C. Duff, Director, Administrative Office of the U.S. Courts Agency.
Miguel R. Valero,
Complainant,
v.
James C. Duff,
Director,
Administrative Office of the U.S. Courts
Agency.
Appeal No. 0120072716
Agency No. FY 06-03
DECISION
On May 25, 2007, complainant filed an appeal from the agency's April
30, 2007 final action concerning his equal employment opportunity (EEO)
complaint alleging 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. 621 et seq. For the following reasons, the Commission AFFIRMS
the agency's final action.
At the time of events giving rise to the complaint, complainant worked as
an Information Technology Specialist, GS-13 equivalent, in the Accounting
and Financial Systems Division.
On June 8, 2006, complainant filed an EEO complaint wherein he claimed
that he was discriminated against in reprisal for his prior EEO activity
under Title VII and the Age Discrimination in Employment Act when his
job duties as a technical web liaison for his branch were eliminated.
The agency accepted the complaint for investigation. Subsequent to the
completion of the investigation, complainant requested that the agency
issue a final action.
With regard to the elimination of complainant's job duties as the
technical web liaison for his branch, the agency determined that no
discrimination occurred. The agency stated that one of complainant's
responsibilities involved using the Content Management System to prepare
documents for posting to the agency's J-net intranet site. According to
the agency, its Web Services Branch concluded that the Contents Management
System was too difficult for most of the agency's web liaison personnel
to use properly. It was decided that the Web Services Branch would
perform content management instead. The agency stated that the decision
to withdraw use of the Content Management System was made by the Web
Services Branch, which is not part of complainant's chain of command. The
agency noted that these individuals made the decision based on technical
reasons and that none of them knew about complainant's EEO activity.
The agency further noted that the same strategy for withdrawal of use of
the Content Management System has been implemented in the client offices.
On appeal, complainant contends with respect to the elimination of his
technical web liaison duties that the agency's explanation is pretext
because his Supervisor contacted the Web Services Branch about having
his duties assigned to other employees the day before those duties were
eliminated. Complainant notes that less than two months after the duty
at issue was eliminated, his second-level Supervisor indicated that if he
refused to retire, the agency would continue to eliminate his job duties.
In response, the agency asserts that the point complainant raises
concerning his Supervisor contacting the Web Services Branch actually
relates to her attempt to receive authority from the Web Services Branch
to have other personnel in her branch make web postings in complainant's
absence, which included an anticipated extended absence in September 2005.
The agency maintains that this exchange had nothing to do with removing
duties from complainant. As for the comments allegedly uttered by the
second-level Supervisor concerning the elimination of complainant's job
duties, the agency states that this statement was allegedly made six
weeks after the change in web content management procedures, and does not
specifically refer to that change. The agency maintains that therefore
the statement is not probative of intent by the second-level Supervisor
to influence the Web Services Bureau to reduce complainant's duties.
Moreover, the agency objects to the use of this alleged statement as it
would have occurred during a mediation session. The agency reiterates
that the decision to withdraw web content management functions from
program offices was made for technical reasons by Web Services Branch
management and technical staff, who were not in complainant's chain of
command. The agency cites testimony from a Web Services Branch analyst
who stated that it was overwhelming to have to go to the program offices
and retrain them as it took a lot of the technical team's time.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
With regard to the elimination of complainant's job duty involving using
the Content Management System to prepare documents for posting to the
agency's J-net intranet site, we shall assume, arguendo, that complainant
has set forth a prima facie case of reprisal. The agency explained
that an entity outside complainant's chain of command, the Web Services
Branch, decided that it would perform content management because the
system was too difficult for most of the agency's web liaison personnel
to use properly. We find that the agency articulated a legitimate,
nondiscriminatory reason for eliminating this job function.
Complainant claims that the day before he was relieved of this job
duty, his Supervisor contacted the Web Services Branch about having his
duties assigned to other employees. Complainant further claims that his
second-level Supervisor stated that if he refused to retire, the agency
would continue to eliminate his job duties. We find, however, that
these contentions do not establish pretext as the agency persuasively
stated that the Supervisor contacted the Web Services Branch in order
to receive authority for other personnel in her branch to make web
postings in complainant's absence, which was to include an extended
absence the following month. Further, the second-level Supervisor's
alleged statement that complainant would continue to lose duties if he
did not retire was made more than a month after the incident at issue
and it did not specifically refer to the duty that complainant lost.
However, the primary factor supporting the agency's explanation is that
the removal of the Content Management System function was implemented not
only with regard to complainant, but also as to all of the Web Service
Branch's client offices with the agency.
The agency's decision in its final action finding no discrimination is
AFFIRMED.
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
December 17, 2009
__________________
Date
2
0120072716
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120072716