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.