0120090626
07-24-2009
Thomas Saracco, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Thomas Saracco,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120090626
Hearing No. 520-2007-00288X
Agency No. EE0-06-101-A1
DECISION
On November 25, 2008, complainant filed an appeal from the agency's
October 20, 2008 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
During the relevant period, complainant was employed as a General Engineer
at a New York facility of the agency. He worked from home (tele-commuted)
four days a week and reported to the office on Wednesday of each week.
In a formal EEO complaint dated September 20, 2006, complainant alleged
that the agency discriminated against him on the bases of disability
(Obsessive Compulsive Disorder) and reprisal for prior protected EEO
activity when (1) on August 14, 2006, his supervisor (S1) denied his
request to switch his Tuesday tele-work day to Wednesday of that week
so that he could attend a regional agency birthday party for persons
born in August and (2) between November and December 2006, S1 assigned
complainant ten modernization reviews (on-site field visits) within a
five week period.
During the agency investigation, for (1), S1 stated that it is office
policy to not approve temporary changes to tele-work schedules unless
for business necessity to meet workload requirements. The agency noted
that complainant was allowed to attend the birthday celebration without
using personal leave. For (2), S1 stated that he assigned the reviews
with deadlines of three weeks with the assumption that one to two reviews
could be completed per week. S1 added that complainant completed only one
of the ten reviews assigned and did not properly convey the status of any.
Further, the agency stated that complainant was assigned work as were his
colleagues, was given reasonable deadlines, did not request assistance
from S1, and disregarded the agency deadline without disciplinary action.
At the conclusion of the agency investigation, complainant was provided
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing and the AJ held a hearing on August 26,
2008 and issued a decision on September 5, 2008. Specifically, the AJ
stated that complainant failed to establish that the agency's actions
were based on impermissible factors. The agency subsequently issued a
final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged. The instant appeal
from complainant followed. On appeal, regarding (1), complainant stated
that his request was work-related because the Regional Director invited
him to the monthly birthday celebration and he did not want to disappoint
him. As to (2), complainant stated that management did not apprise him
of the reason he was assigned so many reviews. He added that he let
management know he was processing the reviews and, in February 2007,
informed management of his processing schedule. Complainant added that
the number of assignments was unreasonable which caused their submission
to be late but not incomplete.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We find that complainant failed to establish by a preponderance of
the evidence that discrimination occurred. 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 Corp. 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 U. S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't 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 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't
of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In the instant matter, we find that complainant failed to present evidence
that the agency's actions were motivated by discriminatory animus toward
his protected classes.1 We find that complainant failed to show pretext.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 24, 2009
__________________
Date
1 We assume for the purpose of analysis that complainant is an individual
with a disability. See 29 C.F.R. � 1630.2(g)(1)
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0120090626
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090626