03990090
11-19-1999
Petitioner, )
Val Madrid v. Department of Veterans Affairs
03990090
November 19, 1999
Val Madrid, )
Petitioner, )
) Appeal No. 03990090
v. ) MSPB No. DE-0351-96-0462-I-1
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
INTRODUCTION
On December 4, 1996, Val Madrid (petitioner) filed a petition with the
Equal Employment Opportunity Commission (the Commission) for review of
the Initial Decision of the Merit Systems Protection Board (MSPB or the
Board) concerning an allegation of discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The MSPB found that the Department of Veterans Affairs (agency) had not
engaged in discrimination as alleged by petitioner. For the reasons
that follow, the Commission concurs with the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the Board's determination that petitioner
failed to prove that the agency discriminated against him based on
national origin when it demoted petitioner under a reduction-in-force
(RIF) action is supported by the evidence in the record as a whole.
BACKGROUND
Petitioner was assigned the position of Assistant Fire Chief due to a
settlement agreement dated March 7, 1994, reached in connection with an
EEO complaint he had filed. The agency demoted petitioner under a RIF
regulation from his previous position to Lead Firefighter which became
effective on May 15, 1996. Petitioner appealed this action to the MSPB,
and a hearing was held on October 1, 1996. The MSPB Administrative
Judge (AJ) sustained the agency's decision and upheld the demotion.
In particular, the AJ found that the agency had eliminated all "Assistant"
positions at petitioner's medical center and included his position.
The AJ further held that petitioner failed to provide any evidence of
discrimination noting that petitioner did not testify nor did he call
any witnesses to testify at the hearing regarding his allegation of
discrimination.
In his petition for review, petitioner asserts that the agency's RIF
was done in a manner which would place him at a lower grade level than
his previous grade which he received as part of a settlement agreement
which barred such action. Petitioner further alleges that the RIF action
violated his settlement agreement and requests a reinstatement of his
EEO complaint.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board with
respect to the allegation of discrimination based on national origin
(Hispanic) constitutes a corrective interpretation of any applicable
law, rule, regulation or policy directive and is supported by evidence
in the record as a whole. 29 C.F.R. �1614.305(c).
In any proceeding involving an allegation of discrimination, it is the
burden of the complainant, petitioner herein, to initially establish
that there is some substance to his or her claim. Petitioner's claim of
discrimination is examined under a tripartite analysis first enunciated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In general,
for petitioner to prevail, he must first establish a prima facie case
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. Id. at 802.
The Commission's analysis need not focus on the establishment of
the prima facie case where the agency has articulated a legitimate,
nondiscriminatory reason for its actions. Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Even assuming that petitioner could establish a prima facie case of
discrimination, the Commission finds that the agency has articulated
a legitimate, nondiscriminatory reason for its action. Petitioner
was an Assistant Fire Chief. The agency, as part of a RIF action,
eliminated all "assistant" positions. The record indicates that the
agency demoted petitioner to Lead Fireman due to the RIF regulations.
Petitioner failed to produce any other evidence to support his claim of
national origin discrimination. Therefore, the Commission finds that
the agency has provided a legitimate, nondiscriminatory reason for its
demotion of petitioner.
As to petitioner's allegation that the agency's action was in violation
of the settlement agreement, we find that this issue is not before the
Commission.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
Board's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF PETITIONER'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (W1092)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Nov. 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the agency and the MSPB on:
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