Frank Atencio, Complainant,v.Bruce Babbitt, Secretary, U.S. Department of Interior, Agency.

Equal Employment Opportunity CommissionMar 22, 2000
01975245 (E.E.O.C. Mar. 22, 2000)

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.