01A14658
08-22-2002
Juan F. Requena, Jr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Juan F. Requena, Jr. v. Defense Logistics Agency
01A14658
August 22, 2002
.
Juan F. Requena, Jr.,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A14658
Agency No. JQ-00-024
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.
The record reveals that during the relevant time, complainant was employed
as a Supply Technician, GS-2005-07, at the agency's Defense Distribution
Depot Susquehanna facility in New Cumberland, Pennsylvania. Complainant
sought EEO counseling and subsequently filed a formal complaint on
December 30, 1999, alleging that he was discriminated against on the
bases of race (Hispanic), national origin (Puerto Rican), sex (male),
and reprisal for prior EEO activity when he was notified on October 5,
1999, that his position was �excessed� and he was to report immediately
to another work unit for temporary placement until a permanent vacancy
could be identified.<1>
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
requested that the agency issue a final decision.
In its FAD, the agency concluded that assuming, arguendo, complainant
established a prima facie case of race, national origin, sex, and reprisal
discrimination, it nonetheless articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the FAD found that because there
was no longer enough work in complainant's unit to support three Supply
Technicians, it was decided that the junior ranking of the three employees
would be eliminated and he would be transferred to another position.
The FAD found that complainant's supervisor (S1) contacted the personnel
office which informed him that complainant was the most junior of the
three Supply Technicians, and, therefore, complainant was the employee
whose position was eliminated. The FAD concluded that complainant
failed to show that these legitimate, nondiscriminatory reasons were
mere pretext to mask discriminatory or retaliatory animus.
On appeal, complainant argues that he was not the most junior of the
three Supply Technicians in his unit, and that his transfer was the
result of management's collusion with the Union. The agency requests
that we affirm its FAD.
Complainant has alleged a claim of disparate treatment which is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases). For complainant 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, i.e., that a prohibited consideration was a factor
in the adverse employment action. McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the agency has met its burden, complainant
bears the ultimate responsibility to persuade the fact finder, by a
preponderance of the evidence, that the agency acted on the basis of a
prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711 , 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990).
Here, we find that assuming, arguendo, complainant established a
prima facie case on all alleged bases, the agency has articulated
legitimate, nondiscriminatory reasons for its actions. Namely, the
decreased workload in complainant's unit necessitated the reassignment
of one of the three Supply Technicians, and as complainant had the least
seniority, he was the reassigned employee. Complainant argues that he
was not the most junior of the Supply Technicians, however the agency
states the personnel office determined seniority by using Reduction
in Force (RIF) standards. The agency states that RIF standards take
military service time in account, which resulted in complainant having
less seniority than another Supply Technician who had less time in the
job but who had military service. (Report of Investigation, page 6).
Complainant denies that he was reassigned as a result of a reduction
in workload, and instead contends that he and the Union President had
a history of animosity, and that S1 and the Union President colluded to
move complainant to another facility. The Commission finds that even if
complainant's contention his reassignment was motivated by the animosity
between himself and the Union President is true, this does not support a
finding that complainant was discriminated against on the basis of race,
national origin, sex, or prior EEO activity.
In conclusion, we find that complainant has failed to proffer any
persuasive evidence that the agency's legitimate, nondiscriminatory
reason is pretextual, or that the agency's actions were motivated
by discriminatory or retaliatory animus. 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
August 22, 2002
__________________
Date
1 On appeal complainant states that the bases of race, national origin,
and sex had been �rendered moot issues�, but as they are ruled on in
the FAD, we will address these bases in this decision.