02A20005
12-29-2003
Ricardo Ramirez, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Ricardo Ramiez v. Department of Homeland Security
02A20005
December 29, 2003
.
Ricardo Ramirez,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security<1>,
Agency.
Appeal No. 02A20005
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's Step 3 grievance decision in the above-entitled
matter. Complainant, a Special Agent in the Miami District Office of
the agency's Immigration and Naturalization Service, alleged that the
agency had discriminated against him on the bases of sex (male) and
reprisal for prior EEO activity with regard to his supervisor's conduct
toward him. The main thrust of the grievance was that based on his sex
and in reprisal for having complained to his supervisor's superiors,
complainant received promotion potential evaluations (identified as Forms
OCORS/G-610/G-610A) that did not comport with, and were lower than, his
performance reviews. Complainant also alleged harassment based on sex,
in that a female Special Agent received more favorable treatment with
regard to her assignments than did male Special Agents in the same office.
Pursuant to the analysis set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), to establish a claim of discrimination, complainant
must establish a prima facie case of discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. at 802; see also Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978). This means that complainant
must present a body of evidence such that, were it not rebutted, the trier
of fact could conclude that unlawful discrimination did occur. The burden
then shifts to the agency to articulate a legitimate, non-discriminatory
explanation for its action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). In this regard, the agency need only produce
evidence sufficient "to allow the trier of fact rationally to conclude"
that the agency's action was not based on unlawful discrimination.
Id. at 257. Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the burden
of production, in other words, "going forward," may shift, the burden
of persuasion, by a preponderance of the evidence, remains at all times
on complainant. Burdine, 450 U.S. at 256.
Where, as here, the agency has already articulated a legitimate,
non-discriminatory explanation for its actions, the Commission's analysis
need not focus on the establishment of the prima facie case. Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The inquiry conducted pursuant to the grievance, as documented in the
record, revealed that the evaluation forms identified by complainant are
intended and are used by the agency to evaluate potential for future
performance in higher level work, not past performance in a specific
position (for which, at the time, the agency would utilize Form DOJ
522). Accordingly, appraisals set forth on the two forms may differ.
Complainant has adduced no evidence in support of his contention that
the Forms OCORS/G-610/G-610A should have reflected his past performance
in his particular position rather than his generic potential performance
in a higher position.
With respect to complainant's allegation of harassment, the Commission
notes that harassment of an employee that would not occur but for
the employee's race, color, sex, national origin, age, disability,
or religion is unlawful if it is sufficiently patterned or pervasive.
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). However, in
order for harassment to be considered conduct in violation of Title VII,
it must be pervasive. Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th
Cir. 1987). The conduct in question is evaluated from the standpoint of
a reasonable person, taking into account the particular context in which
it occurred. Highlander v. K.F.C. National Management Co., 805 F.2d 644
(6th Cir. 1986).
The grievance inquiry did not substantiate complainant's harassment
allegations, nor did he come forward with evidence to do so. The record
reflects for example, that case assignments were dictated from higher
authority than complainant's immediate supervisor, and that all Special
Agents were subject to the same guidelines.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to affirm the Step 3 grievance
decision, because a preponderance of the record evidence does not
establish that discrimination occurred.
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
December 29, 2003
__________________
Date
1The grievance at issue originally was filed against the Department of
Justice, then the parent agency of the Immigration and Naturalization
Service (INS). During the pendency of these proceedings, the INS
relocated to the Department of Homeland Security.