Rodolfo X. Ledesma, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency

Equal Employment Opportunity CommissionOct 14, 1999
01970181 (E.E.O.C. Oct. 14, 1999)

01970181

10-14-1999

Rodolfo X. Ledesma, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency


Rodolfo X. Ledesma v. Department of the Air Force

01970181

October 14, 1999

Rodolfo X. Ledesma, )

Appellant, )

) Appeal No. 01970181

v. ) Agency No. AR000960580

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency )

)

DECISION

INTRODUCTION

Appellant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from a final agency decision concerning his

complaint of unlawful 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 C.F.R. Section 621 et seq. The appeal is accepted in accordance with

EEOC Order No. 960.001.

ISSUE PRESENTED

The issue on appeal is whether the agency properly found no discrimination

on the basis of national origin (Hispanic), sex (male), age (DOB: July

1936), and reprisal (prior EEO activity), when appellant received a

Letter of Final Decision - 14 Calendar Day Suspension.

BACKGROUND

Appellant, a Diagnostic Radiologic Technologist<1> at Kelly

Air Force Base, Clinical Services, was issued a 14 day suspension

following a patient's complaint for the unauthorized and the deliberate

misrepresentation of qualifications in giving medical advice. Appellant

filed a formal complaint alleging discrimination.

The two responsible supervisory officials stated in their affidavits

that they were aware of appellant's prior compliant, and had in fact

been named in the complaint. They stated their decision to suspend

appellant was based on the severity of the offense and the clinic's

exposure to liability, the agency's investigation into the complaint,

which included a very detailed statement by the patient, and the fact that

appellant had previously been disciplined with a 14-day suspension for a

similar offense. Appellant's immediate supervisor consulted the Agency

Supervisor Handbook and an Employee Relations Specialist (ERS) about

the range of penalties and proper procedures. The ERS testified that,

while no other employee was disciplined for the same type of offense,

the procedures followed were consistent with similar disciplinary

actions issued by the agency.

After a review of the record and the investigative file the Administrative

Judge (AJ) issued Findings of Fact and Conclusions of Law without

a hearing. The AJ found that appellant produced insufficient evidence

to support a claim of discrimination.

In its final agency decision, the agency accepted the AJ's finding of

no discrimination, finding that appellant failed to establish that the

reasons articulated by the agency for its actions were a pretext for

discrimination.

On appeal, appellant argues that the AJ erred in issuing findings without

a hearing stating that material facts, such as the patient's credibility,

were in dispute.<2>

ANALYSIS AND FINDINGS

Appellant's claims of disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973). In general, for appellant 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. McDonnell Douglas, 411 U.S. at 802.

The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its actions. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is

successful, the burden reverts back to the appellant to demonstrate by a

preponderance of the evidence that the agency's reasons were a pretext for

discrimination. At all times, appellant retains the burden of persuasion

and it is his obligation to show by a preponderance of the evidence

that the agency acted on the basis of a prohibited reason. U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case,

following this order of analysis is unnecessary when the agency has

articulated a legitimate, nondiscriminatory reason for its actions. See

Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,

1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether he has demonstrated by a

preponderance of the evidence that the agency's reason for its actions

was a pretext for discrimination. Id.; see also United States Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).

After reviewing the record, the Commission finds that appellant failed

to demonstrate that the reasons articulated by the agency were a pretext

for discrimination. The agency explained that the incident was treated

seriously because it involved the interpretation of x-rays, the making of

a medical diagnosis and the giving of medical advice without a license.

The agency official followed proper guidelines and procedures in

determining appellant's penalty. The Commission is persuaded appellant

was not treated differently than any other employee and that the agency

acted appropriately in disciplining appellant for what its investigation

found to be a serious infraction.

In order to establish a prima facie case of discrimination for an

allegation of reprisal, appellant must show: 1) that he engaged in

protected activity, e.g., participated in a Title VII proceeding; 2)

that the alleged discriminating official was aware of the protected

activity; 3) that he was disadvantaged by an action of the agency

contemporaneously with or subsequent to such participation; and 4)

that there is a causal connection between the protected activity and

the adverse employment action. Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,

545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d

80, 86 (D.C. Cir. 1985); Burrus v. United telephone Co. of Kansas, Inc.,

683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

The record indicates that appellant engaged in protected activity by

filing a prior EEO complaint and that the responsible agency officials

were aware of, and named in that activity. The Commission finds that a

causal connection can be inferred based on the proximity in time between

the prior activity and the adverse action.<3> Thus, appellant states

a prima facie case of reprisal.

Appellant has failed, however, to show that the reasons articulated

by the agency for its actions were a pretext for discrimination based

on reprisal. See Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981).

We find that appellant's claim of discrimination based on reprisal is

not borne out by the record which indicates that the agency conducted a

complete investigation into the patient's charge and consulted agency

guidelines before deciding on appropriate discipline. There is no

evidence that any other employee charged with a similar infraction

would have been treated differently than appellant. Therefore, the

agency's determination that appellant failed to establish that the agency

retaliated against him or that its actions were based on discriminatory

animus was correct.

Accordingly, the decision of the agency was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (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

Oct. 14. 1999

________________________ _______________________

DATE Carlton Haddon, Acting Director

Office of Federal Operations

1 Appellant does not have the authority or the credentials to interpret

X-Ray films or provide medical advice to patients.

2 The AJ's determination that material facts were not in dispute was

based on a review of the agency officials' actions and statements and

a finding of whether those officials acted with discriminatory animus,

rather than whether the investigation conducted by those officials into

the triggering incident reached a correct conclusion.

3 Appellant states that the prior compliant was pending when the current

suspension was issued.