Agency.

Equal Employment Opportunity CommissionJul 18, 2003
02A00012 (E.E.O.C. Jul. 18, 2003)

02A00012

07-18-2003

Agency.


Martha A. Curiel Et Al v. Department of Agriculture

02A00012

July 18, 2003

.

Martha Curiel Et Al.<1>,

Grievants,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 02A00012

Agency No. 990617-12803-7

DECISION

INTRODUCTION

Grievants timely initiated an appeal<2> of a final decision concerning

their grievance of unlawful employment discrimination on the basis

of national origin (Hispanic) in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

The issue on appeal is whether grievants have established that the agency

discriminated against them on the above-referenced basis in its hiring,

placing in grade, paying and promoting of bilingual loan processors at

the agency's Centralized Servicing Center (CSC) located in St. Louis,

Missouri.

BACKGROUND

According to the record, in October 1997, the agency commenced

operations at its new facility for processing lower income mortgage

loans nationwide, the CSC. In preparation for the CSC's opening, the

agency sought to recruit, hire, and train hundreds of loan processors,

including processors who were fluent in Spanish to communicate with agency

clients for whom Spanish was their only or primary language. The agency

filled most of the processor positions through the competitive examination

process administered by the Office of Personnel Management (OPM), which

included the issuance of vacancy announcements, review of applications,

determination of grade eligibility, and issuance of certificates of

eligibles. The remaining positions were filled through reassignments,

transfers, reinstatements, promotions and excepted service appointments.

A number of vacancy announcements were issued advertising the processor

positions from the GS-05 through the GS-07 grade level. Two of said

vacancy announcements addressed bilingual positions, stating:

(Multiple Vacancies) . . . Approximately 15-20 of the positions to

be filled from this announcement require that applicants be able to

speak Spanish fluently and be able to translate written materials both

from Spanish into English and from English into Spanish. Only those

applicants who indicate on their Form C that they possess an acceptable

level of Spanish language proficiency will be considered for the bilingual

positions.

One announcement for bilingual positions advertised multiple vacancies

at the GS-05 and GS-06 levels, whereas, a second announcement advertised

multiple vacancies at the GS-05, GS-06, and GS-07 levels. To further

its recruitment of bilingual processors, the agency also disseminated

information throughout the Hispanic community and instituted a program

which offered a monetary award to existing employees who referred an

applicant who was fluent in Spanish and ultimately hired by CSC at the

GS-06 or GS-07 level.

The union filed a grievance on behalf of the 29 grievants stating that

(1) the manner in which the agency advertised the processor positions

had a disparate impact on Hispanics because the agency advertised for

bilingual processors at lower grade levels, (2) bilingual employees were

unfairly treated for consideration for awards or performance recognition

because of the lack of bilingual supervisors to evaluate their work, and

(3) bilingual employees could only progress to other bilingual positions

rather than monolingual positions as well. The agency and the grievants

were unable to resolve the matter so it was submitted to arbitration for

a determination on the arbitrability of the grievance and on whether

discrimination occurred. An Arbitrator found that the grievance was

arbitrable and the agency did not discriminate. This appeal followed.

The agency filed exceptions to the Arbitrator's decision regarding

arbitrability to the Federal Labor Relations Authority (FLRA). The FLRA

found that all matters except initial appointments to Federal service

at CSC were arbitrable.

On appeal, grievants reiterated their previous contentions, stated that

the Arbitrator professed to have applied a disparate impact analysis but

actually applied an affirmative action one, and provided the statistics

that follow. In Fiscal Year 1997, CSC hired 35 Hispanic processors

of the 519 total processors hired between the GS-05 and GS-08 levels.

Of that 35, 54% (19) were hired at the GS-05 level, 26% (9) were hired

at the GS-06 level, 14% (5) were hired at the GS-07 level, and 5.7%

(2) were hired at the GS-08 level. In an unidentified year, there were

42 multilingual employees, 79% (33) of which were Hispanic, with 55%

(23) whom were promoted within the past year and 62% (26) whom received

at least one award in the past year.

The agency responded that (1) OPM placed applicants on the certificates of

eligibles and the agency could only select an applicant for a position

on which his/her name appeared on the certificate, CSC's statistics

for hiring Hispanics exceeded such hiring statistics for the civilian

labor force in the area, it decided to announce bilingual positions

starting at the GS-05 level because OPM deemed many previous applicants

for the positions unqualified for the GS-06 and GS-07 grade levels,

(2) all grievants who were eligible for promotion and incentive awards

received them in a timely manner, the number of bilingual supervisors is

increasing, and the ability to speak two languages is viewed as a special

skill so allowances have been made for bilingual processors, and (3) the

agency has a sincere commitment to hire and retain bilingual employees.

ANALYSIS AND FINDINGS

When a grievant alleges discrimination under a theory of disparate

impact, he has the initial burden of showing that the agency applied

a facially neutral policy that resulted in a disproportionate adverse

impact on his protected group. Griggs v. Duke Power, 401 U.S. 424

(1971). Grievant must identify the specific practice challenged,

show statistical disparities, and show that the disparity is caused

by the challenged practice. Obas v. Dep't of Justice, EEOC Appeal

No. 01A04389 (May 16, 2002)(citing Watson v. Fort Worth Bank and Trust,

487 U.S. 977, 994 (1988)). The burden is on grievant to show that �the

facially neutral standard in question affects those individuals [within

the protected group] in a significantly discriminatory pattern.� Obas

(citing Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)).

In this case, the grievants argued that the agency had a practice

of recruiting, hiring and paying bilingual processors at the lowest

possible grade, which caused an adverse impact on Hispanic applicants --

the group on which the agency focused its bilingual hiring efforts.<3>

The grievants argued further that the agency's initial hiring practices

continued to effect Hispanic processors once hired in terms of the

promotion opportunities and awards available to them. To support their

claim, the grievants offered statistics regarding the number of Hispanic

and non-Hispanic employees hired at CSC, as well as resumes of processors

from both groups.

We find that the grievants have not presented sufficient evidence to

establish a prima facie case of disparate impact. Regarding claim

(1), the record reveals that the two vacancy announcements that the

agency issued for processors starting at the GS-05 level, were for both

bilingual and monolingual processors. There was no requirement that the

bilingual applicant be of a specific national origin. The requirement

was that the applicant be able to speak Spanish fluently and be able

to translate written materials both from Spanish into English and

from English into Spanish. Applicants for the processor positions

could apply for the vacancy announcement and grade of his/her choice.

The announcement of the processor positions starting at the GS-05 level

allowed for a greater pool of applicants. OPM reviewed applications

and issued certificates of eligibles to the agency to make selections.

Finally, the agency sought to hire bilingual processors at higher grade

levels through its employee referral incentive program. Regarding claims

(2) and (3), the record does not reflect that the agency failed to

issue a disproportionate number of Hispanic processors a promotion or

an award. Summarily, the objective evidence in the record does not

support grievants' theory of disparate impact.

CONCLUSION

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 final decision because

the preponderance of the evidence of record does not establish that

discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the grievant 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).

GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

July 18, 2003

__________________

Date

1Grievants are 29 Hispanic employees of

the agency. They include Martha Curiel, Francisco Perez, Ada Rivera,

Ana Padilla, Bertha Parra, Carolina Barrientes, Cynthia Curiel, Dolores

Alvarez, Elaine Escalera, Herman Semidey, Hiram Pedraza, Jessica Velarde,

Joel Ortiz, Jose Lopez, Julia Martinez, Lewis Trogler, Marilyn Hernandez,

Mirta Castro, Wilfredo Hernandez, Roberto Lescano, Sandra De Zenteno, Sara

Rocha, Vincent Cuenca, Virginia Arciniega, Lizbeth Rivas, Kathryn Sandoval

De Orozeo, Betty Kreh, Ivonne Montalvo-Doelter, and Beatriz Sordo.

2The Commission notes that the appeal was filed by the union as

representative for the complainants.

3This decision does not address initial appointments to Federal service

as FLRA found that such appointments were outside of the scope of the

negotiated grievance procedure.