01A15168
11-04-2002
P. Edgardo Tarrats, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
P. Edgardo Tarrats v. Small Business Administration
01A15168
November 4, 2002
.
P. Edgardo Tarrats,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A15168
Agency No. 03-00-015
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as Chief, Portfolio Management Division, GS-13, at the agency's
Connecticut District Office. Complainant sought EEO counseling and
subsequently filed a formal complaint on March 17, 2000, alleging that
he was discriminated against on the bases of national origin (Hispanic)
and reprisal for prior EEO activity when:
(1) he received a performance rating of 3.33 for the fiscal year of 1999,
which was a decrease from prior years, and rendered him ineligible for
a cash award; and
he was subjected to severe and pervasive harassment from 1997 to 2000.<1>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
The FAD found that in December 1999, complainant received a rating of 3.33
which rendered him ineligible for a cash award. The required rating for
an employee to receive a cash award is 3.6 or better. Complainant claimed
that other non-Hispanic supervisors were treated differently in the
evaluation process. Complainant claimed that this lower rating was the
culmination of various problems in the office including the understaffed
nature of his division, which led to an increase in the inventory of
their workload. Supervisor (S1) testified that complainant was not
performing up to expectations, however, S1 admits that complainant was
not informed of these deficiencies during the mid-year review process
because the problems were not apparent at that time.
In its FAD, as to (1), the agency concluded that although complainant
established a prima facie case of discrimination based on his national
origin, the agency articulated a legitimate, non-discriminatory reason;
namely, complainant's job performance led to the backlog of guaranty
purchases and the increase in average number of days in liquidation,
and complainant failed to follow procedures in accordance with the SBA
Standard Operating Procedures. The FAD found that complainant did not
establish that the agency's legitimate non-discriminatory reasons were
pretexts, and therefore, he failed to prove, by a preponderance of the
evidence, that he was subjected to discrimination. The FAD also found
that complainant failed to state a claim of retaliatory harassment in
(2) because the alleged incidents were not enough, on their own, to
constitute severe or pervasive conduct of a discriminatory nature and (2)
was dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). The FAD assumed,
arguendo, that even if the incidents alleged rose to the level of creating
a hostile environment, complainant failed to establish, by a preponderance
of the evidence, that the agency was motivated by a discriminatory or
retaliatory reason. On appeal, complainant raises no new contentions.
The agency requests that we affirm its FAD.
As a preliminary matter, we note that the decision on an appeal from a
FAD issued without a hearing, pursuant to 29 C.F.R. � 1614.100(b), shall
be based on a de novo review. 29 C.F.R. � 1614.405(a). To prevail in
disparate treatment claims such as these, 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). In (1), it is undisputed that complainant has established
a prima facie case of discrimination, thus, we proceed to analyze
whether 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 explanations are pretexts 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).
The Commission finds that complainant did not establish, by a
preponderance of the evidence, that the agency's articulated reasons
for its actions were pretexts for discrimination. In reaching this
conclusion, we note that while complainant testified that he attempted
to mitigate the problems that arose during the course of the year, and
contests the validity of S1's evaluation of his performance, he did not
establish that agency's failure to rate him such that he would receive
a cash award was a result of management's discriminatory animus towards
his national origin or prior EEO activity.
Harassment of an employee that would not occur but for the employee's
participation in protected EEO activity is unlawful if it is sufficiently
patterned or persuasive. See e.g., McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985). The agency actions at issue must be both
sufficiently pervasive and directed at the employee because of his
membership in a protected class. Bennett v. Department of Navy, EEOC
Request No. 05980746 (September 19, 2000). In determining whether an
objectively hostile or abusive work environment existed, the trier of
fact should consider whether a reasonable person in the complainant's
circumstances would have found the alleged behavior to be hostile
or abusive. Harris v. Forklift Systems Inc., 510 U.S. 17, 22 (1993).
However, the Commission has repeatedly found that claims of a few isolated
incidents of alleged harassment usually are not sufficient to state
a harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996).
The Commission agrees with the FAD that complainant has failed
to demonstrate that the various incidents alleged in (2) were
sufficiently severe or pervasive to establish a hostile or abusive
work environment. Moreover, even if complainant established a claim
of harassment, we find that complainant failed to establish that the
harassment was based on his national origin or his prior protected
EEO activity.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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
November 4, 2002
__________________
Date
1 The incidents alleged are: S1 reproached complainant in a disrespectful
and intimidating manner for e-mailing Administrative Officer (AO) a
complaint about others parking in his paid parking spot; complainant was
reprimanded by S1 in the presence of District Counsel (DC) ; S1 banged
on his desk, conducted a meeting in an intimidating and disrespectful
manner; S1 angrily yelled at complainant and following this incident S1
wrote an e-mail to complainant, Deputy District Director (DDD), DC, AO,
with a copy to District Director which complainant alleges included lies
about his performance; and DDD became angry when denying complainant's
request to purchase computer zip disks.