0120110574
12-05-2012
Oscar Ozuna, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.
Oscar Ozuna,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120110574
Agency No. APHIS-2009-00567
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 30, 2010 final decision concerning his equal employment opportunity (EEO) complaint alleging 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.
BACKGROUND
The record reflects that Complainant, a former Agency employee, filed the instant formal complaint on July 30, 2009.1 Therein, Complainant alleged that the Agency discriminated against him on the bases of race (Mexican American) and national origin (Hispanic) when on or about March 23, 2009, he learned that he was not selected for one of the following vacancies2:
1. Animal Health Technician (Mounted Patrol Inspector) advertised under Vacancy Announcement No. 24VS-2009-0150;
2. Animal Health Technician (Mounted Patrol Inspector) advertised under Vacancy Announcement No. 24VS-2009-0144;
3. Animal Health Technician (Mounted Patrol Inspector) advertised under Vacancy Announcement No. 24VS-2009-0149;
4. Animal Health Technician (Mounted Patrol Inspector) advertised under Vacancy Announcement No. 24VS-2009-0153;
5. Animal Health Technician (Mounted Patrol Inspector) advertised under Vacancy Announcement No. 24VS-2009-0154;
6. Animal Health Technician (Mounted Patrol Inspector) advertised under Vacancy Announcement No. 24VS-2009-0155; and
7. Animal Health Technician (Mounted Patrol Inspector) advertised under Vacancy Announcement No. 24VS-2009-0152.
The record reflects that Complainant applied for twenty-four Animal Health Technician positions in the following seven cities in Texas: Zapata, Grande City, Laredo, Del Rio, Brownsville, Eagle Pass, and Mission. The qualifications for the subject positions included, but were not limited to the following activities: the ability to ride a horse; use firearms in performance of duties; apprehend and subdue wild and fractious animals; chop trail and crawl through dense brush; handle wild animals and snakes; and mix and apply toxic pesticides.
Twenty-two candidates were selected for the subject positions. In regard to claims 1 - 6, Complainant's application was referred to the selecting official for consideration. However, Complainant was not selected for the subject positions. Regarding claim 7, the record reflects that Complainant's application was received but was not referred to the selecting official for consideration because Complainant's self assessment scored ranked below the cut off for referral.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on September 30, 2010, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of race and national origin. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The Supervisor Animal Health Program Specialist stated that in regard to the twenty-four Animal Health Technician positions, he established a panel of eleven Agency officials consisting of seven work area supervisors, his two assistants, the Administrative Officer, and himself. The Specialist stated that the two critical elements were horse river patrol, and inspection and treatment.
The Specialist stated that the panel reviewed the candidates' application packages and "worked on the list together and tried to work with the supervisor who wanted a specific person; [Administrative Officer] directed traffic as you would say during the process. The final decision was up to the work area supervisor, not me, as they have more knowledge of the individuals work than I did. When we all agreed that the supervisor would pick the people they wanted within reach, we gave the name to [Administrative Officer] and she would determine if it was a legal selection. [Administrative Officer] would then contact the Austin office and they would tell the individual if they were selected."
The Specialist stated that Complainant was not selected for any of the subject positions because of the work area supervisors' past experience with him. Specifically, the Specialist stated that he and the work area supervisors "all work together for years, work close together and we all have worked with [Complainant] for a period of years and they all just passed him, based in my opinion due to their past experience with him."
Further, the Specialist stated that although Complainant's qualifications "were strong, as he worked as an inspector for twenty years. I believe he had all the skills anyone else had and certainly he knew the job. In my perception, he is lazy and that's why he was not selected for the position. What I mean by lazy is, he was perfectly willing to let someone else to do all the work. For instance, when we worked together he never stopped to help others when he saw them working late and he would pass along dipping cattle (approximately 80+ cattle) to the Saturday worker instead of doing it himself even though he would be on the clock and suppose to do the dipping." Moreover, the Specialist stated that he did not discriminate against Complainant based on his race and national origin.
The Supervisor of the Carrizo Springs Animal Veterinary Services stated that he and other work area supervisors made recommendations "as to who we wanted to work for us, but the final decision was up to the director, area veterinarian in charge, and [Administrative Officer] handled the administrative part." The Supervisor stated that Complainant was not selected for any of the subject positions because "there were some issues brought up that occurred during the time that [Complainant] was employed years ago. . ."
The Administrative Officer stated that she worked with the Agency's Minneapolis, Minnesota office concerning the subject vacancies, and provided the certificates and application packages to the Specialist. The Administrative Officer further stated that if the panel had questions "I tried to get answers for them i.e. some employees had issues on their 306 so I did some additional fact finding, I arranged for drug testing, etc. Basically, [panelists] went through the selection process and we talked about whether or not they could make the choices they wanted to make." The Administrative Officer stated that Complainant "was on each of the work area searches therefore, each supervisor would have had a chance to say yes or no if they wanted him."
Further, the Administrative Officer stated that she did not perceive Complainant's race and national origin were not factors in Agency management's decision not to select him for any of the subject positions. Specifically, the Administrative Officer stated "as far as age, race and national origin goes, there were people of equal age which were hired at that time. I believe it had to do with [Complainant's] past performance with our agency."
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See 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. See U.S. 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); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 5, 2012
__________________
Date
1 The record reflects that Complainant resigned from Agency employment in 2002.
2 For ease of reference, the Commission has numbered Complainant's claims as claims 1 - 7.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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