Felipe Villareal, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 30, 2000
01a00062 (E.E.O.C. Mar. 30, 2000)

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.