01a44778
12-08-2004
Rogelio Gomez, Complainant, v. Elaine Chao, Secretary Department of Labor Agency.
Rogelio Gomez v. Department of Labor
01A44778
12/08/04
.
Rogelio Gomez,
Complainant,
v.
Elaine Chao, Secretary
Department of Labor
Agency.
Appeal No. 01A44778
Agency No. 03-06-038
Hearing No. 310-2004-00048X
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 finding no discrimination.
I. BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Compliance Safety and Health Officer, GS-9, at the
agency's Occupational Safety and Health Administration, Dallas Area
Office facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on December 19, 2002, alleging that he was
discriminated against on the bases of national origin (Hispanic) and
religion (Methodist) when on November 22, 2002 he was terminated during
his probationary period.
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
initially requested a hearing, but withdrew his request after a period of
discovery during which the complainant perceived the Administrative Judge
(AJ) to display favoritism toward the agency. The AJ remanded the case
to the agency for a FAD.
In its FAD, the agency assumed arguendo that complainant had established
a prima facie case, but found that the agency provided legitimate
nondiscriminatory reasons for terminating complainant, namely that
complainant failed to behave in a professional manner on the job and to
exercise good judgment while conducting agency business. The FAD then
concluded that complainant failed to to show that the agency's reasons
were pretextual.
Complainant makes several arguments on appeal. First, complainant argues
for a default judgment in his favor because, while the case was still
before the AJ, the agency never responded to complainant's motion for
summary judgment. Next, complainant argues that the agency's proffered
nondiscriminatory reasons for removing complainant are not credible.
Finally, complainant alleges that agency management officials violated
the Standards of Ethical Conduct for Employees of the Executive Branch,
5 C.F.R. Pt. 2635.101 et. seq., when they removed complainant.
The agency requests that we affirm its FAD, restating its assertion that
complainant failed to show pretext and arguing that complainant's claim
under 5 C.F.R. Pt. 2635.101 et seq. should not be heard by the Commission.
II. ANALYSIS
We find complainant's request for default judgment without merit.
Complainant moved for summary judgment on April 16, 2004, and then
withdrew his request for a hearing and requested a FAD be issued on April
23, 2004. Complainant thereby impliedly withdrew his request for decision
by the AJ without a hearing. The FAD was appropriately issued and we
review it on appeal according to 29 C.F.R. �� 1614.401 and 1614.405.
We review the findings of fact and conclusions of law in the FAD de
novo, pursuant to 29 C.F.R. �1614.405. To prevail in a disparate
treatment claim such as this, 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). The prima facie inquiry may be dispensed with in this case,
however, since 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 explanation is a pretext 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).
We find that complainant failed to present evidence that more likely
than not, the agency's articulated reasons for its actions were a
pretext for discrimination. Complainant's supervisors believed him to
have committed several acts of impropriety and misconduct. The record
reveals that complainant acted contrary to his supervisor's orders
when he attended a meeting his supervisor had instructed him to avoid.
Complainant's supervisor also believed that complainant had failed to
adequately obtain his permission to act as a translator for coworkers.
Complainant also allegedly made several inappropriate comments or
advances of a sexual nature towards female coworkers. Complainant's
supervisors believed it a proper exercise of their power to remove him,
a probationary employee, for these reasons.
To prove the agency's reasons were pretextual, complainant disputes the
truth of these allegations. Complainant claims to have unknowingly
entered the meeting his first-line supervisor had instructed him to
avoid, and to have left soon after discovering it was the meeting they
discussed. Complainant also argues that he did not know that he was
required to ask his supervisor for permission to act as a translator for
a coworker every time he did so. The record reveals disagreement and
confusion among several employees about office policies regarding the
process of obtaining permission for complainant to act as a translator.
We find, however, that these facts do not prove discriminatory animus
on the part of complainant's supervisors. They tend to show only that
complainant did not intend to act inappropriately.
Complainant presents evidence that his first-line supervisor made some
offensive comments regarding Methodists and Romanians. We find these
comments insufficient to prove by a preponderance of the evidence that
the complainant was dismissed because of his religion or national origin.
It is inconclusive that complainant's first-line supervisor harbored
any discriminatory animus towards complainant. The record indicates
that the comments, however inappropriate, were made in a jocular tone.
We note, furthermore, that complainant's first-line supervisor did not
have ultimate discretion over his employment. Complainant's second-line
supervisor appears to have written and signed his letter of dismissal,
but indicated to complainant before he was dismissed that the decision
was even out of her hands.
Complainant also avers that no other employees were warned or
disciplined for failing to follow proper procedure. Again we find this
fact insufficient to prove by a preponderance of the evidence that the
agency's nondiscriminatory reasons were pretextual. Complainant does not
identify any other employee who acted as a translator without requesting
permission, let alone show such a person was of a different national
origin or religion than he.
We find that the record reveals disagreement and uncertainty regarding
the incidents that led to complainant's dismissal. Insufficient evidence
exists, however, that it took place due to discriminatory motives.
Complainant's allegations under 5 C.F.R. Pt. 2635.101 et. seq. are not
within the Commission's jurisdiction and shall not be considered in
this decision.
III. CONCLUSION
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
_____12/08/04_____________
Date