Adam Chavez, Complainant, Lawrence H. Summers, Secretary, Department of Treasury, Agency,

Equal Employment Opportunity CommissionMay 16, 2000
01996343 (E.E.O.C. May. 16, 2000)

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.