0120083833
10-06-2009
Nelson Del Valle, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Nelson Del Valle,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120083833
Hearing No. 510-2008-00170X
Agency No. EEODFS070950F
DECISION
Complainant filed an appeal from the agency's September 10, 2008 final
order concerning his equal employment opportunity (EEO) complaint 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. 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Revenue Agent at the agency's Miami, Florida facility.
On September 5, 2007, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of his sex, national origin
(Cuban-American), and in reprisal for prior protected EEO activity
when:
1. on or about July 5, 2007, management gave complainant the same
annual performance rating as he had received the year before, despite
complainant's efforts to improve his performance;
2. on or about July 31, 2007 and continuing, management assigned
complainant a
greater caseload than his coworkers;
3. on July 31, 2007, complainant discovered that some of the cases
recently assigned to him were the same cases that had been removed from
his inventory in March 2007 and no action had been taken on them during
the intervening months; and
3. on or about September 21, 2007, complainant's supervisor (S1)
gave complainant a list of tasks that needed to be accomplished within
two business days.
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. The AJ assigned to the case found that, after
viewing the evidence in a light most favorable to complainant, a decision
without a hearing was appropriate as there were no genuine issues of
material fact in dispute. The AJ issued a decision without a hearing
on August 20, 2008, finding 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. On appeal,
complainant contends that the AJ erred in issuing a decision without
a hearing and that the AJ's decision was "arbitrary and disregarded
evidence properly submitted by complainant." (Complainant's Brief on
Appeal at 1). Complainant also reiterates many of the claims made in
his formal complaint and affidavit, and argues that the statements of
management officials are not worthy of belief.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the
agency's decision is subject to de novo review by the Commission. 29
C.F.R. � 1614.405(a). 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, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a
decision without a hearing was appropriate, as no genuine dispute of
material fact exists. 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).
Here, we find that assuming, arguendo, complainant established a prima
facie case of race, national origin and reprisal discrimination, the
agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, both complainant's first and second-line
supervisors (S1 and S2) stated that complainant's performance had shown no
improvement over the prior year, and if anything, had decreased. However,
they also stated that it was agreed that complainant should receive
the same ratings as he did the previous year because management failed
to give complainant sufficient notice of his performance deficiencies.
(Report of Investigation; Exhibits 5; 6) With respect to claims (2)
and (3), S1 and S2 both stated that during the period in question,
complainant was on an extended detail; that when he returned from the
detail, his cases were once again assigned to him; and that complainant
has not been assigned a larger caseload than any of his co-workers. Id.
Finally, S1 and S2 state that the tasks assigned to complainant were not
unreasonably burdensome and were related to a scheduled appointment that
complainant was given the option to reschedule if he could not have the
tasks completed on time. Id. We find that complainant failed to proffer
any evidence from which a reasonable fact-finder could conclude that the
actions alleged were motivated by discriminatory or retaliatory animus
toward his protected classes, or that the agency's articulated reasons
for its actions were pretextual.
We also concur with the AJ's finding that to the extent that complainant
is alleging that he was subjected to a hostile work environment, his
claim of unlawful harassment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8,
1994). A prima facie case of hostile work environment is precluded based
on our finding that complainant failed to establish that any of the
actions taken by the agency were motivated by discriminatory animus.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923
(September 21, 2000).
CONCLUSION
We find that viewing the record evidence in a light most favorable to
complainant, there are no genuine issues of material fact. We further
find that the AJ appropriately issued a decision without a hearing
finding no discrimination. Therefore, we discern no basis to disturb
the AJ's decision and the agency's final order 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
October 6, 2009
__________________
Date
2
0120083833
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083833