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.