01975245
03-22-2000
Frank Atencio, Complainant, v. Bruce Babbitt, Secretary, U.S. Department of Interior, Agency.
Frank Atencio v. U.S. Department of Interior
01975245
March 22, 2000
Frank Atencio, )
Complainant, )
) Appeal No. 01975245
v. ) Agency No. LSM-92-009
) Hearing No. 350-96-8306X
Bruce Babbitt, )
Secretary, )
U.S. Department of Interior, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of national origin
(Mexican-American) and reprisal (prior EEO activity), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Complainant alleges he was discriminated against when he
was not selected for the position of Supervisor, Abandoned Mine Land
& Grants Management Specialist, GM-301-13, advertised under Vacancy
Announcement WSC-92-02. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
VACATED AND REMANDED.
The record reveals that complainant, a Grants Management Specialist,
GS-12, at the agency's Office of Service Mining (OSM), filed a formal EEO
complaint with the agency on February 2, 1992, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant requested a hearing before an Equal
Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination. In her decision,
the AJ found that complainant had failed to establish a prima facie
case of discrimination on either bases. Specifically, the AJ found
that since complainant and the selectee were both Hispanic, they were in
the same protected group, and as such, complainant failed to establish
a prima facie case on the basis of national origin. The AJ also
found that complainant had failed to show that the Selecting Official
(SO)(non-Hispanic) knew about complainant's prior EEO activity when he
made the selection. Assuming, arguendo, that complainant had established
a prima facie case, the AJ found that the agency had articulated
legitimate nondiscriminatory reasons for its action. Specifically, as
reasons for the selection, the SO wrote on the Selection Certificate,
"I consider him [the selectee] to be the overall best candidate."
Furthermore, the SO testified as follows in his affidavit:
In addition to being fully qualified in all programmatic aspects of the
[position], [the selectee's] demonstrated ability to handle sensitive
issues, his skill in dealing with people, and his professional maturity
make him the preferred applicant.
The AJ further found that complainant had failed to prove that the
agency's reason for its action was a pretext for discrimination.
On December 1, 1994, the agency issued a final decision adopting the
AJ's RD.
Complainant appealed the agency's final decision to the Office of
Federal Operations. See Atencio v. Dept. of Interior, EEOC Appeal
No. 01951627 (July 17, 1996). In that decision, the Commission found
that the case should be remanded for a hearing as complainant could be
able to establish a prima facie case of national origin discrimination.
Specifically, the Commission found that although complainant and the
selectee were Hispanic, complainant had repeatedly identified himself as
Mexican-American. Furthermore, there was testimony revealed during the
investigation that a management official had denigrated complainant's
national origin, while praising the selectee's "high Spanish blood."
As such, the Commission determined that if it was later determined at
a hearing that the selectee was of Spanish national origin, complainant
could establish that he was treated differently than someone outside of
his protected group. The Commission also noted that the treatment of
the selectee, regardless of his national origin, should not logically
or as a matter of law, foreclose complainant's ability to establish
a prima facie case of discrimination on the basis of national origin.
See Diaz v. American Telephone & Telegraph, 752 F.2d 1356 (9th Cir. 1985).
The decision also found that the agency's investigation of complainant's
complaint revealed very little as to the rationale for the selection
decision, and noted the reasons the SO provided for the selection
were vague and subjective. Furthermore, as complainant's objective
qualifications as rated by the "Appraisal for Promotion" and "Evaluation
of Supervisory Potential" were superior to those of the selectee's,
the Commission found that complainant should have the opportunity to
address these matters at an administrative hearing. The agency was
therefore ordered to request the appointment of an EEOC administrative
judge to conduct an investigative hearing.
In August 1996, the agency requested the appointment of an EEOC
administrative judge. Following a March 12, 1997 pre-hearing conference,
the AJ issued a Status Report and Order, wherein he reported that he had
determined that the case was a candidate for a decision on the record
without a hearing. He further stated that:
[I]n order to confirm or refute that initial tentative determination[,]
the complainant was granted until March 27, 1997, to submit a statement
as to why a hearing is necessary in the subject case in light of the
fact that the selectee for the position sought is a Mexican American
with prior EEO activity as is the Complainant.
Furthermore, the AJ noted that the agency was granted until April 11,
1997, to submit a response to complainant's statement. Finally, the
AJ canceled the hearing set for March 18, 1997, pending a decision on
the parties' submissions. On March 27, 1997, complainant submitted,
through his attorney, a brief arguing that he is a mixture of Mexican
Indian and American Indian ancestry, whereas the selectee "professed
his blood origin to be Spanish." Complainant noted again that testimony
from another employee revealed that a management official had denigrated
complainant's ancestry while praising the selectee's "high Spanish blood",
and also noted that a responsible official during the selection had made
derogatory comments about Hispanics in the past. In sum, complainant
argued that he was of a different blood origin than the selectee, and
as such, should be granted a hearing.
In response to complainant's brief, the agency argued that complainant
had not consistently considered himself Mexican-American, but repeatedly
referred to himself as Hispanic. Furthermore, the agency submitted an
affidavit from the selecting official wherein he testified that not only
did he not consider complainant's national origin or prior EEO activity
when he made the selection, he also did not view complainant and the
selectee as being of different national origins. The agency argued
that there was nothing in the record which hinted that complainant had
been discriminated against, and as such, requested that the AJ find that
complainant failed to establish a prima facie case on either bases.
On April 9, 1997, the AJ issued an Order wherein he decided that following
a review of the submissions and the Report of Investigation, there were
no material facts in dispute. Furthermore, the AJ found that credibility
was not at issue. He therefore ordered that the subject case be decided
on the record without a hearing.
Therefore, on April 17, 1997, the AJ issued a RD finding that there
were no material facts in dispute. Specifically, the AJ determined that
complainant failed to establish a prima facie case of discrimination on
either bases in that complainant failed to demonstrate that similarly
situated employees not in his protected classes were treated differently
under similar circumstances. The AJ noted that both the selectee
and complainant are of Mexican-American national origins, and both
have engaged in prior EEO activity. Furthermore, the AJ found that
since the SO denied any knowledge of complainant's prior EEO activity,
complainant failed to establish that the SO knew or should have known
about complainant's prior EEO activity at the time of the selection.
On May 21, 1997, the agency issued a second final decision adopting
the AJ's RD. It is from this decision that complainant now appeals.
Neither complainant nor the agency raise any new contentions on appeal.
After carefully reviewing the record, we concur with our prior decision
and find that complainant is entitled to a hearing before an EEOC
administrative judge. We note that courts have long held that, in some
factual situations, a plaintiff may create a rebuttable presumption of
discrimination without literally meeting all the elements of a prima facie
case announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Maldonado v. Dept. of Interior, EEOC Appeal No. 01943528 (May 1, 1995);
see e.g. Byrd v. Roadway Express, 687 F.2d 85 (5th Cir. 1982) (plaintiff
can establish a prima facie case of racially motivated discharge even
if plaintiff was replaced by an individual of his own race).
Although we acknowledge that disparate treatment models often address
the treatment of comparatives outside of the complainant's protected
class when determining whether a prima facie case has been established,
the Commission has ruled that proof of a prima facie case will vary
depending on the facts of the particular case. See, e.g., Miller
v. Department of Veterans Affairs, EEOC Appeal No. 01954762 (June 17,
1997); West v. Department of Agriculture, EEOC Appeal No. 01954208
(February 26, 1997). At a minimum, complainant must present evidence
which, if unrebutted, would support an inference that the agency's actions
resulted from discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). It is not necessary, however, for complainant
to show that a comparative individual outside his protected group was
treated differently. O'Connor v. Consolidated Coin Caters Corp., 116
S. Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996);
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996).
Here, complainant alleged in his complaint that the agency does not
credit the educational background of Hispanics and did not select him
for the supervisory position because they deemed him to be a threat.
He alleged he is more qualified than the selectee. Furthermore, he
alleged, with corroborating affidavits, that management officials have
made derogatory comments about Hispanics.
We agree with our earlier finding that the agency's reasons for its
failure to select complainant were vague and subjective. Although in
its brief to the AJ the agency added an affidavit of the SO wherein
he supported his selection of the selectee, we nonetheless find that
there still exist material facts in dispute which can only be resolved
in a hearing after reviewing the credibility of the witnesses. In his
affidavit, the SO testified that he chose the selectee because of,
among other things, the selectee's ability to act as an intermediary,
and his knack for defusing potentially explosive situations. However,
upon review of documents contained in the Report of Investigation,
the selectee received lower ratings than complainant on his "Appraisal
for Promotion." Specifically, the selectee received a lower rating
than complainant under the quality, "skill in negotiation and conflict
resolution and the ability to work with other people." We find that
complainant should have been given the opportunity to cross-examine the
SO as to his reasons for the selection. Furthermore, complainant should
be given the opportunity to examine other management officials involved
in the selection process who he alleged had made derogatory comments
about Hispanics.
Complaint should have the opportunity to address these issues, as well
as others, during an administrative hearing. Accordingly, we again find
that the AJ erroneously issued a recommended decision without holding a
hearing. Accordingly, the Commission VACATES the FAD and REMANDS this
complaint to the Hearings Unit of the Commission's Phoenix, Arizona
District Office.
ORDER
The complaint is remanded to the Hearings Unit of the Phoenix, Arizona
District Office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The agency shall provide written notification
to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
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).
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 22, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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.