01a00062
03-30-2000
Felipe Villareal, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Felipe Villareal, )
Complainant, )
) Appeal No. 01A00062
v. ) Agency No. 2-96-5566
) Hearing No. 310-97-5288X
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of national origin (Hispanic), sex
(Male), and age (52), in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
Whether complainant has proven by preponderant evidence that the agency
actions against him were discriminatory based on his national origin,<2>
age, and sex.BACKGROUND
The record reveals that complainant was a GS-14 manager at a Sector
Field Office at the agency's Airway Facilities Division Southwest Region
at Houston Intercontinental Airport in Houston, Texas. In 1995, the
agency reorganized which resulted in the creation of thirty-five GS-15
manager positions around the country under Vacancy Announcement MPP AF
95-01 (VA 95-01). In addition, there were forty-seven GS-14 positions
available as part of the reorganization of the agency. Complainant was
not accepted for any of the GS-15 positions for which he applied including
one at the agency's facility in Houston. As to the GS-14 positions,
the agency requested GS-14's to list their top six preferences for the
forty-seven new GS-14 positions in hopes of matching the individuals
with their desired positions. Complainant did so, however, the agency
placed complainant in a GS-14, Section Supervisor position in Fort Worth,
Texas, which he did not list as one of his top six preferences.<3>
Believing he was a victim of discrimination, complainant filed a
formal EEO complaint with the agency on July 18, 1995, alleging that
the agency had discriminated against on the bases of national origin,
sex, and age when: (1) he was not selected for any of the eleven (11)
GS-15 positions he applied under the agency's VA 95-01; (2) he was not
placed in a GS-14 position for which he expressed a preference during
the agency's reorganization in 1995; and (3) he was not selected for
a GS-15 Area Manager position for the Houston Intercontinental Airport
Air Traffic Control Tower for which he applied under VA 95-01.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding discrimination.
The AJ concluded that complainant established a prima facie case of
sex and age discrimination however, complainant failed to establish a
prima facie case of national origin discrimination because complainant
failed to show that similarly situated employees outside of his national
origin were selected. The AJ continued her analysis of the complaint by
determining whether the agency articulated legitimate, nondiscriminatory
reasons for its actions and whether complainant demonstrated that the
agency's reasons were pretext for discrimination.
Regarding claims (1) and (3) involving the GS-15 positions under VA
95-01, the agency argued that complainant was not selected for seven
(7) of the eleven (11) positions for which he bid under VA 95-01 because
the reviewing panel ranked the applicants and complainant was not ranked
high enough for referral. Further, the agency argued that complainant
was not placed in three (3) of the GS-15 positions because he did not
have the requisite high level center experience or, in particular for
one position, was not a GS-15 candidate. As to claim (3) regarding the
eleventh GS-15 position for which complainant bid, the agency stated
that the reason complainant was not selected was because he lacked
the regional office experience. The AJ determined that these reasons
were legitimate and nondiscriminatory. The AJ's analysis continued to
find that complainant failed to establish that it was more likely than
not, that the agency's reasons were a pretext for race, age, and sex
discrimination regarding claims (1) and (3).
As to claim (2) regarding the agency's failure to place complainant in a
GS-14 position for which he expressed a preference, the AJ found that the
agency articulated a legitimate, nondiscriminatory reason for its action.
Specifically, the agency argued that it did not place complainant in his
preferred positions because they wanted to place him in the Fort Worth
position which was a high priority and because complainant was a highly
desirable candidate for that position.
The AJ further found that complainant established that the agency's
reasons were pretext for sex and age discrimination regarding claim (2),
but not national origin discrimination. In reaching this conclusion,
the AJ found that the agency's reasoning was pretext for discrimination,
in particular regarding two (2) of the six (6) positions he listed
as preferences. The two positions were Manager Program Support (MPS)
positions in Albuquerque, New Mexico and Houston, Texas.
Specifically regarding the MPS position in Albuquerque, the agency did not
select complainant because of the Selecting Official's (SO-1) reliance on
complainant's less than favorable reputation which he received during a
short conversation with complainant's supervisor at the selection process.
The AJ found that complainant's negative reputation was unsupported by
the record and that the reality of the situation was that SO-1 wanted
to save the MPS position for a favored, young female employee already
in the Albuquerque facility. The AJ determined that SO-1 inaccurately
reviewed the complainant's reputation based on an age-based stereotype
and acted in a discriminatory manner based on both complainant's age
and sex. Accordingly, the AJ found that the agency had discriminated
against complainant on the bases of sex and age when he was not selected
for the MPS position in Albuquerque.
As to the MPS position in Houston, the AJ found that complainant
established that the agency's articulated reason for placing
complainant in Fort Worth rather than in Houston was also pretext for
age discrimination. In particular, the AJ noted that the Selecting
Official in Houston (SO-2) stated that complainant was not among the
individuals listed for the position because he had already been placed
in the position in Fort Worth. SO-2 also noted that the selectee did not
have supervisory experience while complainant had the experience and was
one of the best qualified for the position. Further, the AJ found that
the agency placed complainant in the Fort Worth position in order to force
him into discontinued service retirement citing SO-1's testimony which
stated that retirement was a consideration in the offering of the GS-14
positions. Accordingly, the AJ found that the agency took complainant
out of consideration for the position in Houston and placed complainant
in Fort Worth with the assumption that complainant would rather retire
than move from Houston to Fort Worth. Therefore, the AJ found that
complainant established that the agency's reason for placing him in the
Fort Worth position was pretext for discrimination based on age.
The final agency decision (FAD) issued on September 3, 1999, accepted the
AJ's RD and the AJ's recommended remedy. However, the record reflects
that the AJ issued two different decisions only with respect to the
remedy to be awarded to complainant. The RD received by the agency
recommended the following corrective actions: (1) that complainant
receive reimbursement for any loss of income due to his reassignment from
Houston to Fort Worth; (2) that complainant is not entitled to any award
of compensatory damages; (3) that the agency shall post a notice; and
(4) that complainant is entitled to an award of attorney fees. The FAD
incorporated corrective actions (1), (2), and (3) but failed to provide
action (4). It is from this decision complainant appeals.
According to the RD received by complainant, the AJ recommended slightly
different remedial actions, namely: (1) that complainant receive an award
of compensatory damages; (2) that complainant receive reimbursement for
any loss of income due to the reassignment from Houston to Fort Worth;
(3) that complainant be offered the MPS position in Houston, and if he
accepts, he will return without any breaks in service and without any
loss of seniority; (4) that the agency shall post the notice; and (5)
that complainant is entitled to an award of attorney fees.
On appeal, complainant argues that there should be a finding of
discrimination in all of his nonselection claims. Complainant further
contends that the AJ's recommended remedy was appropriate and the agency
failed to provide him with full remedy.
On November 17, 1999, complainant's counsel advised the agency of
the discrepancy between the remedies in the FAD and the AJ's RD which
complainant received. The agency contacted the AJ to determine the
reason for the discrepancy. On December 2, 1999, the AJ stated that
the RD which complainant received properly stated the correct remedy.
The agency responded to complainant's appeal by arguing that the remedy
which it provided in its FAD was appropriate and done in conjunction with
the RD it received and complainant should not be entitled to compensatory
damages or the MPS position in Houston.
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 regarding
whether or not discriminatory intent existed 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
RD received by both parties on December 2, 1999, summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We discern no basis to disturb the AJ's RD. As to the remedy, we find
that the RD received by complainant provides him with the full remedy
to which he is entitled.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission MODIFIES
the agency's final decision and remands the matter to the agency to take
remedial actions in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall offer complainant the MPS position in Houston, and if
complainant accepts the offer, he will return to the agency without
any break in service and without any loss of seniority or benefits.
Complainant shall also be awarded any loss of income due to the
reassignment which the agency shall determine. The complainant shall
cooperate in the agency's efforts to compute the amount of these losses,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount, 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 shall conduct a supplemental investigation on the issue of
complainant's entitlement to compensatory damages and shall afford him
an opportunity to establish a causal relationship between the incident
of sex discrimination and any pecuniary or non-pecuniary losses.
The complainant shall cooperate in the agency's efforts to compute the
amount of compensatory damages, and shall provide all relevant information
requested by the agency. The agency shall issue a final decision on
the issue of compensatory damages. 64 Fed. Reg 37,644, 37,657-58 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.110).
The supplemental investigation and issuance of the final decision shall
be completed within 120 calendar days of the date this decision becomes
final. A copy of the final decision must be submitted to the Compliance
Officer, as referenced below.
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 Airway Facilities Division Southwest
Region at Houston Intercontinental Airport in Houston, Texas, 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).
ATTORNEY'S FEES
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an
award of reasonable attorney's fees incurred in the processing of the
complaint of sex discrimination. 29 C.F.R. � 1614.501(e). The award of
attorney's fees shall be paid by the agency. The attorney shall submit a
verified statement of fees to the agency -- not to the Equal Employment
Opportunity Commission, Office of Federal Operations -- within thirty
(30) calendar days of this decision becoming final. The agency shall
then process the claim for attorney's fees in accordance with 29 C.F.R. �
1614.501.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
March 30, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
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.; and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Airway Facilities Division Southwest Region at Houston
Intercontinental Airport in Houston, Texas, supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The Airway Facilities Division Southwest Region at Houston
Intercontinental Airport in Houston, Texas, has been found to have
discriminated against the individual affected by the Commission's
finding on the bases of his age and sex. The agency has been ordered
to offer the individual the position for which he was not selected. The
Airway Facilities Division Southwest Region at Houston Intercontinental
Airport in Houston, Texas, 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 Airway Facilities Division Southwest Region at Houston
Intercontinental Airport in Houston, Texas, 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:
1On 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.
2Although complainant alleged discrimination on the basis of race
(Hispanic), the Commission notes that it considers the term "Hispanic"
to be a national origin rather than a racial group.
3 Complainant's preferences for the GS-14 positions were as follows: (1)
Manager Technical Support (MTS) position in Houston; (2) Manager Program
Support (MPS) position in Houston; (3) MTS position in Albuquerque;
(4) MPS position in Albuquerque; (5) MTS position in Fort Worth; and
(6) Austin Area Manager.