0120083159_hss
10-21-2008
Salvador D. Hernandez, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Salvador D. Hernandez,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083159
Agency No. 2003-0671-2007102124
Hearing No. 451-2008-00053X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 2, 2008 final order 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.
Complainant, a Health Technician, GS-7, at the agency's Audie Murphy VA
Hospital in San Antonio, Texas, alleged that the agency discriminated
against him on the basis of sex (male) when:
1. on or about March 13, 2007, he was informed that two of the three
newly hired co-workers in his section received higher rates of pay and
were reclassified as Hybrid Title 38 Medical Instrument Technicians;
2. in March 2007, he did not receive an exceptional rating and cash award;
and
3. from March 2007 continuing through July 3, 2007, his supervisor (S1)
questioned him about absences and leave, and he was threatened with sick
leave restrictions.
Following a hearing, on May 3, 2008 the EEOC Administrative Judge (AJ)
assigned to this case issued a decision finding no discrimination.
The AJ found that, assuming complainant had established a prima facie
case of discrimination, the agency had met its burden to proffer
legitimate, non-discriminatory explanations for its action, which
complainant had not shown to be pretext for unlawful discrimination.
More specifically, the agency explained that the comparators cited in
issue 1 were temporary works hired to relieve a critical backlog of
patients in the Ophthalmology Department, whose private-sector salaries
had to be matched to induce them to work for the agency. Regarding claim
2, the agency explained that S1 was a new supervisor, and that no one
under his supervision received an exceptional rating and cash award.
S1 explained that he found complainant's performance did not merit
an exceptional rating in the contested element of "technical duties";
complainant felt he deserved the higher rating because he was the only
employee who could perform a procedure called a fluorescein angiogram,
while S1 stated that complainant' skill level was not exceptional,
and that he would have expected better from someone with complainant's
experience. The agency explained in connection with claim 3 that S1 had
concerns with complainant's absences and leave usage because complainant's
leave clustered around Fridays and Mondays.
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.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order
because the Administrative Judge's ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
October 21, 2008
Date
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0120083159
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120083159