01983349
06-28-2001
Iris M. Zayas, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Iris M. Zayas v. Department of Agriculture (Forest Service)
01983349
June 28, 2001
.
Iris M. Zayas,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01983349
Agency No. 960102
Hearing No. 110-97-8099X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges she was discriminated against on the bases of national origin
(Hispanic) and reprisal (prior EEO complaint) when she was not selected
for a GS-401-807-11/12 Urban Forestry Specialist position on July 13,
1995.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, an Urban Forestry Specialist,
GS-401-09, at the agency's Atlanta, Georgia facility, filed a formal EEO
complaint with the agency on January 2, 1996, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of reprisal discrimination. Specifically, the AJ found that while
the recommending official who placed complainant's name on the list
of eligible candidates was aware of complainant's prior EEO complaint
and the resulting Settlement Agreement (SA), neither the members of the
selection panel who ranked complainant last among eight candidates nor
the selecting official who chose the selectee were aware of complainant's
prior EEO activity. The AJ did conclude, however, that complainant had
established a prima facie case of national origin discrimination because
the selectee was not in her protected class.
Nevertheless, the AJ further concluded that the agency articulated a
legitimate, nondiscriminatory reason for its selection. The AJ found that
the selection panel had rated complainant last among the eight candidates
because complainant's education, experience, and training were inferior
to those of the other candidates, particularly the top three candidates.
The selecting official then chose the top ranked candidate.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reason was a pretext to mask unlawful
discrimination. In reaching this conclusion, the AJ found that the
complainant did not establish that she was so clearly more qualified
for the position than the selectee as to compel a finding of pretext.
The agency's final decision adopted the AJ's decision.
On appeal, complainant contends that the AJ erred when she failed to
find that complainant had established a prima facie case of reprisal,
and notes that the FAD did, in fact, find such a case. Complainant next
argues that the FAD then failed to address her contention that other acts
of reprisal contributed to her instant nonselection. In this regard,
complainant asserts that after filing her first EEO complaint, she was
denied training, her performance appraisals were not properly completed
and she was subjected to derogatory remarks. Complainant notes that,
according to paragraph 7 of the SA, the agency agreed to advertise
the Urban Forestry Specialist position, originally a GS-401-12, at the
GS-11/12 level, so that qualified GS-9 Specialists such as complainant
could apply for the position. Nevertheless, S-1, who had signed the SA as
the responsible management official, then added the GS-807 job series
to the job announcement, which made Landscape Architects eligible to
apply for the position as well. Complainant contends that she was then
unable to compete against the GS-807 Landscape Architects who applied
because of her lack of experience in that area.
In its brief in opposition to complainant's appeal, the agency notes that
complainant's instant EEO complaint neither raised matters other than
the nonselection at issued nor asserted a breach of the SA. The agency
states that, pursuant to the regulations in effect at the time in
question,<1> it advised complainant to seek EEO counseling when she
subsequently attempted to challenge matters other than the nonselection
identified in her instant complaint, including the prior denials of
training and performance appraisals. In addition, the agency states
that complainant should have notified the EEO Director of any alleged
noncompliance with the SA within 30 days of when she knew or should have
known of the alleged noncompliance, pursuant to EEOC Regulation 29
C.F.R. � 1614.504(a).
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's national origin. In this
regard, we take cognizance of the following facts and conclusions of
law. First, we agree with the agency that complainant's allegations
of a violation of the SA should have been timely reported to the EEO
Director pursuant to EEOC Regulation 29 C.F.R. � 1614.504(a). In any
case, however, we find that complainant's contention that paragraph 7
of the SA was violated when S-1 made applicants in the GS-807 job series
eligible to apply for the advertised position to have no merit. This is
because the SA is a contract between the complainant and the agency and
it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
In interpreting a SA, the Commission has applied the contract principle
known as the �plain meaning rule,� which holds that where a writing is
unambiguous on its face, its meaning is determined from the four corners
of the instrument without resort to extrinsic evidence. Nitz v. United
States Postal Service, EEOC Appeal No. 01976619 (August 24, 2000).
Paragraph 7 of the SA reads in pertinent part:
Management agrees to pursue advertisement [sic] to fill an Urban Forestry
specialist position, GS-491-12, ... and to advertise this position at
the GS-11 grade level, also, so that qualified GS-9 employees can apply
for the position.
The question then becomes whether by making employees in the GS-807
job series eligible to apply for the Urban Forestry position as well as
those in the GS-491 job series, the agency violated the above Paragraph
7 of the SA. We conclude that it did not, in that Paragraph 7 does not
specifically state that the position must be filled by an applicant in
the GS-491 series only. In this regard, we note that it is a prerogative
of management to set policies and carry out personnel decisions, which
should not be second-guessed by a reviewing court or an administrative
tribunal absent evidence of unlawful motivation. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
We further conclude that there was no evidence of unlawful motivation,
as complainant was ranked last among eight applicants for the position
while the selectee was ranked first by the selection panel. Thus,
complainant did not show that her overall qualifications were so plainly
superior to those of the selectee that a finding of pretext is warranted.
See Bauer v. Bailar, 647 F.2d 1037 (10th Cir. 1981).
We therefore discern no basis to disturb the AJ's decision. Hence , after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 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 (S0900)
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. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 28, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect.