Ada Rivera, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01982089 (E.E.O.C. Mar. 24, 2000)

01982089

03-24-2000

Ada Rivera, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Ada Rivera v. Department of Justice

01982089

March 24, 2000

Ada Rivera, )

Complainant, )

) Appeal No. 01982089

v. ) Agency No. P948417

) Hearing No. 160-96-8474X

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's final No

Discrimination decision concerning her equal employment opportunity (EEO)

complaint of unlawful employment discrimination in violation of Title

VII.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. � 1614.405). Complainant claims she

was discriminated against on the basis of sex when:

(1) she was not selected in June 1992 and in May 1994, for a Correctional

Office<2>r position at the Metropolitan Detention Center (MDC), Guaynabo,

Puerto Rico.

For the following reasons, the Commission reverses the agency's final

No Discrimination decision.

The record reveals that complainant filed a formal EEO complaint with

the agency claiming that the agency had discriminated against her as

referenced above. The complaint was accepted and investigated. At the

conclusion of the investigation, complainant was provided a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a recommended decision

finding discrimination.

In order to establish a prima facie case of sex discrimination,

Complainant must show: (1) she is a member of the protected group; (2) she

was eligible and applied for the position; (3) despite her qualifications,

she was not selected; and, (4) someone outside her protected group was

selected. See, Mc Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The AJ concluded that complainant established a prima facie case of sex

discrimination because the record showed that Complainant applied and

was found qualified for the Correctional Officer, GS-007-06 position

advertised under Vacancy Announcement WA-DJ-29-2-0089S1 and despite her

qualifications, the agency selected a male for the position.

On or about June 26, 1992, Complainant was interviewed by a panel

consisting of Human Resource Manager (HRM), a captain (CPT) and the

Associate Warden (AW). Each panel member completed a pre-employment

interview summary for each candidate, checking the statements which best

described the candidates' qualifications. The AW rated Complainant

"unacceptable", noting among other things that Complainant was

"condescending in her attitude", "over confident to a large degree" and

"believes she is intelligent - more intelligent than the Bureau of Prisons

(BOP)". Notwithstanding this assessment, the record shows that during the

hearing AW could not recall any specifics about Complainant's interview.

See Report of Investigation (hereinafter referred to as "ROI"), pp. 45-46.

The record also shows that the CPT crossed out his original rating of

"satisfactory" and rated Complainant "unacceptable". He also changed

his assessment in other instances. For example, he initially checked

that Complainant "established quick rapport with interviewers", then

changed his answer to read "very shy or lacking in self-confidence".<3>

The ROI shows that the HRM also indicated that Complainant was "poised and

congenial" but crossed out that assessment and indicated that Complainant

"demonstrated a condescending attitude". See ROI, pp. 41-42.

According to the ROI, HRM filed a SF-62, Agency Request to Pass Over

a Preference Eligible or Object to an Eligible (ROI, pp. 37-46).

The request stated, inter alia,

[Complainant] was interviewed by a panel of correctional specialists on

6-22-92 to determine if she possesses the qualities and characteristics

necessary to be an effective correctional worker. During the interview

she displayed a condescending attitude, unassertive nature, attitudes

towards correctional work that are in direct conflict with BOP policy.

She does not possess the qualities and characteristics to be an effective

correctional officer. We request her name be removed from consideration.

The AJ noted that on February 17, 1993, the MDC-Guaynabo was notified

that its documentation did not support the objection to Complainant.

The AJ further found that HRM testified that the MDC- Guaynabo decided

to exercise its option to nonselect Complainant rather than respond to

the objection. The AJ found that ten (10) male candidates were selected

while the agency offered no explanation for its failure to fill the thirty

(30) remaining vacancies.

With respect to the 1994 nonselection the AJ found that Complainant

once again applied and was deemed qualified for the Correctional

Officer, GS-007-05 position, advertised under Vacancy Announcement

No. WA-DJ-29-4-0067SO, in April 1994. She was interviewed by a panel

consisting of four members, including HRM. The AJ found that HRM

did not inform the remaining panel members that Complainant had been

interviewed in 1992. The record shows that although Complainant was rated

"unacceptable", when the MDC-Guaynabo was asked to provide a statement

in support of its objection to Complainant, HRM rescinded the objection

letter and proceeded to send a letter to Complainant informing her that

she had been nonselected for the position. See, ROI, p. 68.

The AJ found that the agency selected two male candidates and two female

candidates and filled the remaining vacancies with transfer ins from

other BOP locations.

The AJ then concluded that the agency failed to articulate legitimate,

nondiscriminatory reasons for its actions. Specifically, the AJ found

that the agency's failure to retain relevant promotion records, as well

as the proffer of incomplete and/or altered documentation, warranted an

adverse inference that information not proffered would have reflected

unfavorably on the agency. See AJ's Findings and Conclusions, p. 9;

Hicks v. Gates Rubber Co., 833 F. 2d 1406 (10th Cir. 1987). Moreover,

the AJ found that the testimony of HRM and CPT lacked credibility with

respect to their respective reasons for the change in the assessment

of Complainant's qualifications in the 1992 selection. The AJ also

found that the testimony of HRM lacked credibility with respect to the

procedures followed in both the 1992 and the 1994 selections.

Thereafter, the agency issued a final decision rejecting the AJ's

recommendation, and found no discrimination.

In the case at hand, the agency failed to submit the hearing transcript

with the record on appeal, despite repeated requests to do so. Therefore,

the Commission will infer from the agency's action that the information

contained in the transcript supports the AJ's credibility determinations.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 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).

After a careful review of the record, the Commission finds that the AJ's

decision summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We discern no basis to disturb the

AJ's decision. Having reviewed the record, the Commission finds that

the AJ properly exercised her discretion in imposing an adverse inference

on the agency and finding in complainant's favor as a result thereof.

Therefore, after a careful review of the record, and arguments and

evidence not specifically discussed in this decision, the Commission

REVERSES the agency's final No Discrimination decision and REMANDS the

matter to the agency to take remedial actions in accordance with this

decision and the ORDER below.

ORDER (D1199)

The agency is ORDERED to take the following remedial action:

Offer Complainant placement in a Correctional Officer position, or a

substantially equivalent position, within thirty (30) days of the date on

which it receives this decision. For purposes of back pay and seniority,

Complainant's placement shall be retroactive to the date on which a male

applicant was selected in 1992, consistent with the agency's mandatory

age requirements;

The agency shall also determine the appropriate amount of retroactive

back pay with interest, effective November 1, 1992 and other benefits due

complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)

calendar days after the date this decision becomes final. The complainant

shall cooperate in the agency's efforts to compute the amount of back pay

and benefits due, and shall provide all relevant information requested

by the agency. If there is a dispute regarding the exact amount of back

pay and/or benefits, the agency shall issue a check to the complainant

for the undisputed amount within sixty (60) calendar days of the date

the agency determines the amount it believes to be due. The complainant

may petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of backpay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its MDC-Guaynabo, Puerto Rico facility

copies of the attached notice. Copies of the notice, after being

signed by the agency's duly authorized representative, shall be posted

by the agency within thirty (30) calendar days of the date this decision

becomes final, and shall remain posted for sixty (60) consecutive days,

in conspicuous places, including all places where notices to employees are

customarily posted. The agency shall take reasonable steps to ensure that

said notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

March 24, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

___________ _________________________________

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 The position at issue is "Correctional Officer." The Commission notes,

however, that in its final decision, the agency inadvertently describes

the position as "Correctional Supervisor."

3 The AJ also found that the CPT's original interview summary was altered

to delete CPT's statement which purportedly read "have concerns, but

willing to employ or give a try".