0120121771
07-11-2012
Cristino Arroyo, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cristino Arroyo,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121771
Agency No. 200P-0678-2011-102297
DECISION
On March 12, 2012, Complainant filed an appeal from the Agency's February 29, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
Complainant worked for the Agency as a Patient Service Assistant. He retired in February 2005. In 2006, Complainant decided to return to work for the Agency and began applying for positions at the Medical Center in Tucson, Arizona. In January 2011, Complainant applied for the position of Medical Support Assistant. Complainant was referred for consideration for the position. Complainant's colleague (Colleague) contacted the Recommending Official (RO) asking her to consider Complainant for the position. The Colleague indicated that the RO stated that Complainant was "too old," she was seeking someone who would hang around a long time and that Complainant should enjoy his retirement. The RO reviewed the list of applicants and selected the Selectee who was an employee of the Agency. The RO noted that the Selectee was known in the Agency and had good performance appraisals which warranted his selection. The Selecting Official (SO) accepted the recommendation to hire the Selectee.
On March 10, 2011, Complainant contacted the EEO Counselor regarding the Agency's decision. On April 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), disability (Post Traumatic Stress Disorder), and age (76) when, on March 1, 2011, he received a notice of non-selection for the position of Medical Support Assistant, GS-04, under Vacancy Announcement 427052. Complainant also listed some 11 other positions for which Complainant applied from January 28, 2006 through July 1, 2010.
The Agency accepted Complainant's claim of discrimination with respect to the non-selection on March 1, 2010. The Agency found that the other non-selections were raised well beyond the 45 day time limit. As such, the Agency dismissed the 11 other claims pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that Complainant failed to establish discrimination by direct evidence. The Agency so noted that the RO denied the assertion. The Agency found that although the Colleague averred that he had a conversation in which the RO indicated that Complainant was too old for the position, there was no other evidence to corroborate his testimony. As such, the Agency concluded that Complainant did not establish direct evidence.
The Agency then turned to the issue of whether Complainant established by circumstantial evidence that the Agency discriminated against him. The Agency found that the RO provided legitimate, nondiscriminatory reasons for her decision to select the Selectee. The RO noted that she received the certificate of eligibles and contacted the two internal candidates. One of the candidates indicated that he was not interested in the position. The RO then chose the Selectee for he was known for his customer service. She also noted that all internal candidates are considered first in order to provide internal candidates promotional opportunities. As such, the RO recommended the Selectee for the position. The SO agreed with the RO's recommendation. Based on this evidence, the Agency found that it articulated legitimate, nondiscriminatory reasons. The Agency turned to Complainant to establish that the Agency's reasons constituted pretext for discrimination. The Agency concluded that Complainant failed to do so. Therefore, the Agency found that Complainant did not show that the Agency's action constituted discrimination.
This appeal followed. On appeal, Complainant asserted that the Agency failed to take into consideration his direct evidence of age discrimination. Further, Complainant noted that the Agency's asserted reason, preference for internal candidates, was not a mandate. As such, the RO was not required to select the Selectee. Further, the RO interviewed the Selectee but did not provide the same opportunity to him. As such, Complainant was treated differently than the Selectee. Therefore, Complainant asks that the Commission find in his favor.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Procedural Dismissal
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
Complainant contacted the EEO Counselor on March 10, 2011. The only timely raised non-selection involved the Agency's decision to select the Selectee over Complainant with regard to the position of Medical Support Assistant, GS-04, under Vacancy Announcement 427052. Complainant has not provided any reason for an extension of time. Therefore, the Commission affirms the Agency's dismissal of the 11 untimely raised selection decisions. As such, this decision shall focus solely on whether Complainant was subjected to discrimination on the bases of age, disability and/or national origin with respect to the Medical Support Assistant position under Vacancy Announcement 427052.
Age-based Discrimination
After careful review of the evidence of record and the arguments submitted by the parties on appeal, the Commission concludes that Agency's final decision erred. Specifically, we find that the final decision failed to recognize that this is a case where Complainant offered direct evidence that the RO made a statement to the Supervisor establishing that age was a motivating factor in the decisions not to select Complainant. By overlooking this direct evidence, the final decision applied the incorrect legal analysis to the evidence of record.
"Direct evidence" may be any written or verbal policy or statement made by a management official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action. See EEOC Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, No. 915-002 (July 12, 1992). A link between the evidence of bias and the challenged employment action can be shown if the biased statements were made by the decision maker or one who was involved in the decision, at or around the time the decision was made, even if the biased remarks were not specifically related to the particular employment decision at issue. Id., footnote 8. When there is direct evidence of discrimination, the circumstantial evidence analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is inapplicable. See Carson v. Dept. of Veterans Affairs, EEOC Appeal No. 01871596 (January 19, 1988).
We note that the Colleague averred that he contacted the RO regarding the position asking that she consider Complainant. He provided an affidavit stating that the RO indicated that Complainant was "too old" and that she was seeking someone younger who would be around for a while. As such, she would not consider Complainant. In response to the evidence, the RO denied having the conversation with the Colleague or making the specific comments. We note that the RO and the Colleague both noted that they had no negative feelings towards each other. We also note that the RO merely stated "No maam" or "I have no preference on that." The RO failed to expand on any questions. Further, the Investigator did not appear to press the RO on the issue beyond the initial question. Based on the totality of the evidence provided, we find that Complainant has provided direct evidence of age-based discrimination.
The federal sector prohibition against age discrimination requires that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age." 29 U.S.C. � 633a(a) (emphasis added). Under this broad prohibition, liability is established where older age is a motivating factor for the agency's decision, regardless of whether the agency also has a legitimate reason for its employment decision. As such, based on the evidence above, we find that the Agency is liable for Complainant's non-selection.
Once liability is established in a mixed motive claim under the ADEA, the Agency has an opportunity to limit damages by demonstrating, by clear and convincing evidence, that it would have taken the same action even if it had not considered the discriminatory factor. See Smith v. Dep't of the Army, EEOC Appeal No. 0120073300 (Dec. 18, 2009) (clear and convincing standard applies to Agency's effort to limit relief after liability is established in a Title VII mixed motive claim); cf. 29 C.F.R. � 1614.501(b)-(c) (noting in a variety of contexts that where there is clear and convincing evidence that the challenged personnel action would have been taken even absent discrimination, the agency still is required to eliminate any discriminatory practice and ensure that it does not recur). If the Agency is able to make this demonstration, Complainant is not entitled to personal relief, i.e., damages, reinstatement, hiring, promotion, or back pay, but may be entitled to declaratory relief, injunctive relief, attorneys' fees or costs. See Smith, supra, (citing Walker v. Social Security Admin., EEOC Request No. 05980504 (Apr. 8, 1999)).
Here the evidence shows that the Agency did show by clear and convincing evidence that the personnel would have taken place absent discrimination. The RO, the SO and the Human Resources Specialists all averred that the Agency, based on an agreement with the Union, provide for first consideration to be given internal candidates. Based on this consideration, the RO looked at the certificate of eligibles and noted that two internal candidates could be selected. One candidate refused the position. As such, the RO considered the Selectee. The Selectee was a known employee who had good evaluations and reputation for customer service within the Agency. As such, the RO chose the Selectee for the position in question. Complainant attempted to show that the Agency only interviewed the Selectee. However, it does not appear that the Selectee was given a specific interview for the position but was contacted about his interest in the position in question. As such, the Commission is not persuaded by Complainant's argument. Upon review, we find that the Agency has shown that it would have taken the same action absent discrimination. Accordingly, we determine that the Agency has limited its liability.
Discrimination Based on Disability and/or National Origin
As to the bases of national origin and disability, we find that there was no direct evidence of discrimination. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its action. The Agency showed that first consideration was given to internal candidates. The Selectee was an internal candidate who was known for his good customer service and quality of work. Based on the agreement with the Union, the RO provided first consideration to the Selectee. She found that he was a good candidate for the position and recommended him for the vacancy.
We turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Complainant challenged the Agency's policy noting that it was not a requirement to place an internal employee into the position. Further, Complainant claimed that the Selectee was the only individual interviewed for the position, thereby discriminating against him. Upon review, the Commission is not persuaded by Complainant's argument. As noted, first consideration is given to the internal candidates is within the Agency's agreement with the union. Further, the RO acted in accordance with the agreement by providing first consideration to the Selectee. In addition, we note that although Complainant asserted that the selection process was unfair, we cannot find that it was discriminatory based on his national origin and/or disability.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's decision as related to Complainant's claim of age-based discrimination. We AFFIRM the Agency's finding of no discrimination as to his claims of national origin and/or disability-based discrimination.
ORDER (D0610)
The Agency is ordered to take the following remedial action:
1. The Agency is directed to provide EEO training for the responsible management officials addressing their responsibilities with respect to eliminating discrimination in the workplace with an emphasis on age discrimination and the current state of law on employment discrimination.
2. The Agency shall consider taking disciplinary action against the management officials identified as being responsible for the discrimination perpetrated against Complainant. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
3. The Agency shall complete all of the above actions within 30 calendar days from the date on which the decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
POSTING ORDER (G0610)
The Agency is ordered to post at its Medical Center in Tucson, Arizona 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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 77960, Washington, DC 20013. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 11, 2012
__________________
Date
2
0120121771
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121771