01996343
05-16-2000
Adam Chavez, Complainant, Lawrence H. Summers, Secretary, Department of Treasury, Agency,
Adam Chavez, )
Complainant, )
) Appeal No. 01996343
) Agency No. TD-97-4269
)
Lawrence H. Summers, )
Secretary, )
Department of Treasury, )
Agency, )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Accordingly, the appeal is accepted in accordance with 64
Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
complainant on the basis of race (Hispanic<2>) when on April 27, 1997,
he was not selected for the position of Canine Enforcement Officer
(Team Leader), GS 1801-11; and on June 9, 1997, he was not afforded the
opportunity to compete for the Canine Enforcement Officer (Team Leader)
position.
BACKGROUND
Complainant was a Canine Enforcement Officer (CEO), GS 1801-9 at the
U.S. Customs Service, Port of San Luis, Arizona. On February 5, 1997,
he applied for the Canine Enforcement Officer Team Leader position<3>
(Position I), GS 1801-11, and was among the candidates rated �Best
Qualified.� Although the announcement listed five qualifications for
the position, the selecting officer (SO) developed a matrix of three
additional criteria; experience, dependability and leadership ability,
on which to rate the best qualified candidates. The SO testified
that he used the scores for leadership ability as the differentiating
characteristic because the candidates' scores for experience and
dependability were very comparable. Based on the leadership ability
score, the SO chose the selectee<4> (Selectee I), (Caucasian/Native
American Indian<5>) on April 27, 1997.
On June 9, 1997, the SO approved the lateral transfer of a CEO Team Leader
in Calexico, California (Selectee II) (Caucasian) into the second CEO
Team Leader position in San Luis without competition. The SO stated
that because Selectee II was experienced as a team leader, he could
assume his responsibilities without any training.<6>
Complainant filed an EEO complaint and requested a hearing. The AJ
issued a bench decision finding discrimination in the April 27, 1997
non-selection. The AJ found that the agency's articulated reasons were
unbelievable and that complainant's prima facie case was sufficiently
compelling to justify a finding of discrimination without more evidence
of discriminatory bias on the part of the SO. The AJ found that the
SO's verbal demeanor<7> was hesitant and evasive, and that his answers
were frequently non-responsive. The AJ found that the SO's statement
that he knew Selectee I listed false information on his application but
believed the error was inadvertent lacked credibility.<8>
Regarding the June 1997 denial of opportunity to compete, the AJ found
that the agency articulated legitimate, nondiscriminatory reasons
for selecting Selectee II, and thus, found it unnecessary to determine
whether complainant established a prima facie case for his non-selection
to Position II.
In its final decision, the agency found that the evidence of record
was not sufficient to support complainant's claim of discrimination.
The agency found that the AJ's assessment of the SO's credibility was
flawed because the AJ based her perception of the SO's oral demeanor on a
poor telephone connection to Saudi Arabia. The agency also found that the
AJ drew an incorrect inference in finding incredible the SO's statement
that he considered Selectee I's reference to Military Police/Canine
Handler was a mere error. The agency determined that complainant failed
to establish a prima facie case of discrimination on Issue 2 because he
did not show that he was similarly situated to Selectee II. The agency
noted that Selectee II was an experienced GS-11 CEO, and that complainant
was treated no differently than other GS-9 CEO's with no team leader
experience who could only be selected under a competitive announcement.
On appeal, complainant argues that the telephone transmission was
not flawed. He argues that the SO had no trouble answering questions
throughout 39 pages of testimony, and clearly understood questions
posed by the agency representative. He argues that the transmission
became flawed only when the phone receiver was first moved closer
to complainant's representative, and that the SO became evasive when
asked questions regarding his knowledge of Selectee I's falsifications
on his application. The agency reiterated the analysis from the final
decision in its response.
ANALYSIS AND FINDINGS
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
Administrative Judge 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 that discrimination occurred
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
findings and conclusions summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We find questionable
the SO's decision to depart from the five evaluation criteria listed in
the vacancy announcement and to creat a matrix of three criteria, one
of which favored Selectee I. We find the SO's statements regarding his
knowledge of Selectee I's falsification and his belief that Selectee I
made a simple mistake incredible. We are also persuaded that Selectee I
claimed to be a Native American after complainant filed an EEO complaint
in order to give the appearance that the selection was not based on
racial or national origin discrimination.<9>
We note that the phone transmission during which the SO testified appeared
flawed only when the receiver was moved between the representatives
and that the SO appeared to have no difficulty understanding and
answering questions posed by the agency representative. AJ based her
determination of the SO's credibility on the inherent incredibility of
the SO's statements in addition to her assessment of his oral demeanor.
We find that the AJ's determination is fully supported by the record
testimony. We are also persuaded by statements and affidavits from
fourteen co-workers who stated that Selectee I was not suited for the
position and had two dogs removed from him because of his inability to
properly train them.<10>
We find that complainant established a prima facie case of discrimination
based on nation origin regarding Position II, but that the agency
articulated legitimate, nondiscriminatory reasons for selecting Selectee
II; namely his, albeit scant, experience as team leader. We, therefore,
discern no basis to disturb the AJ's findings and conclusions. 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 reverse the agency's final decision.
CONCLUSION
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with this decision and the proper
regulations.
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall place the complainant in either the GS 1801-11, Canine
Enforcement Officer Team Leader position or a substantially equivalent
position to that of GS 1801-11 Canine Enforcement Officer Team Leader
no later than thirty (30) calendar days after the date this decision
becomes final.
The agency shall pay to complainant back pay retroactively to the date on
which Selectee I was placed in the GS 1801-11 Canine Enforcement Officer
Team Leader position. If complainant declines the position, the agency
shall pay complainant back pay and other benefits for the period from
Selectee I's entrance into that position until the date of the offer.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) 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 back pay 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 U.S. Customs Service, Port of San
Luis, Arizona facilities 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.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
May 16, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of Treasury, U.S. Customs Service, Port of San Luis,
Arizona supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The Department of Treasury, U.S. Customs Service, Port of San Luis,
Arizona has been found to have discriminated against an employee through
the promotion process. The agency has been ordered to retroactively
promote the employee as a result of the discrimination, and award back
pay. The Department of Treasury, U.S. Customs Service, Port of San Luis,
Arizona will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The Department of Treasury, U.S. Customs Service, Port of San Luis,
Arizona will not in any manner restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices
made unlawful by, or who participates in proceedings pursuant to,
Federal equal employment opportunity law.
_____________________________
Date Posted: _____________________
Posting Expires: __________________
29 C.F.R. Part 1614
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 Commission considers the designation Hispanic to be a national
origin.
3 The agency official controlling the budget at that facility authorized
filling two Team Leader positions.
4 The Selectee indicated on his application that he had 20 years of
leadership experience. Complainant had a two-week assignment as a
temporary supervisor.
5 Complainant and a number of co-workers averred that the Selectee
claimed to be part Native American only after complainant filed the
instant complaint.
6 The record indicates that Selectee II had six months experience as a
team leader. Complainant averred that the SO, who recently transferred
to San Luis from Calexico, California, and Selectee II were close friends,
and that the SO was the godfather of Selectee II's child.
7 The SO, assigned at the time in Saudi Arabia, testified by phone.
8 Selectee I listed Military Police/Canine Handler under his experience
with the U.S. Marine Corps in seven areas of his application. The SO
testified that he knew Selectee I was not with the Military Police or
a Canine Handler when he was in the Marine Corps, but stated that he
thought Selectee I probably worked with them at some point.
9 The record contains an agency document listing the name and demographic
information of each candidate. The column for race was blacked out
and rewritten by hand, listing Selectee I as Native American. The SO
testified that he did not know who altered the document.
10 Some co-workers stated, and supplied pictures to indicate, that
Selectee I's current dog was mistreated and neglected.