01972620
03-01-1999
Marcelino S. Santos, Appellant, v. Richard J. Danzig, Secretary, U.S. Department of Navy, Agency.
Marcelino S. Santos v. U.S. Department of Navy
01972620
March 1, 1999
Marcelino S. Santos, )
Appellant, )
)
v. ) Appeal No. 01972620
) Agency No. DON-91-60259-008
Richard J. Danzig, ) EEOC No. 340-95-3841X
Secretary, )
U.S. Department of Navy, )
Agency. )
______________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission accepts
the appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal EEO complaint alleging discrimination based
on race (Filipino), color (Brown), national origin (Philippines) age
(DOB: 4/20/40) and reprisal (prior EEO activity), when he was not
selected as a WL-4749-10 Maintenance Mechanic Leader.<1> Following the
agency's investigation, appellant requested a hearing before an EEOC
administrative judge. Finding that there were no material facts in
dispute, on September 4, 1996, the AJ issued a Recommended Decision
pursuant to 29 C.F.R. �1614.109(e)(3), finding no discrimination.
Specifically, the AJ found that appellant had failed to establish a
prima facie case of discrimination based on reprisal. Specifically,
the AJ found appellant had failed to prove that he had engaged in prior
EEO activity. Furthermore, appellant had failed to show that any of the
agency officials involved in the selection were aware of appellant's
prior EEO activity, if indeed he had such. In light of the fact that
appellant failed to establish a prima facie case of discrimination
based on reprisal, the AJ found appellant was not discriminated against,
as alleged.
On January 10, 1997, the agency issued a final decision adopting the AJ's
finding of no discrimination. It is from this decision that appellant
now appeals.
As appellant's complaint constitutes a claim of disparate treatment, the
agency properly analyzed it under the three-tiered analytical framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318,
324 (D. Mass.), aff'd 545 F.2d 222 (1st Cir. 1976). Assuming arguendo
that appellant established a prima facie case, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the agency asserted that they did not choose appellant
for the position because he was not the best qualified candidate.
After a careful review of the record, the Commission finds that appellant
failed to establish that the agency's reasons for its actions were pretext
for discrimination. We find that appellant's contentions on appeal are
without merit. Specifically, he failed to present sufficient evidence
which established an inference of discrimination. Accordingly, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final decision that it did not discriminate against appellant,
as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if 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:
____March 1, 1999__ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The agency initially issued a final agency decision on or about September
21, 1992, finding no discrimination. On appeal, the Office of Federal
Operations affirmed the agency's final decision. See Santos v. Navy,
EEOC Appeal No. 01930128 (June 3, 1993). On Reconsideration, the
Commission found that neither the FAD nor the Commission had addressed
the reprisal allegation in its decision, and remanded the complaint for a
supplemental investigation. See Santos v. Navy, EEOC Request No. 05930922
(February 17, 1994). Thus, the reprisal allegation is the only allegation
now before the Commission in the instant appeal.