Jesus Clemente, Complainant,v.Michael B. Mukasey, Attorney General, Department of Justice (Executive Office for Immigration Review), Agency.

Equal Employment Opportunity CommissionJan 8, 2009
0520090075 (E.E.O.C. Jan. 8, 2009)

0520090075

01-08-2009

Jesus Clemente, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice (Executive Office for Immigration Review), Agency.


Jesus Clemente,

Complainant,

v.

Michael B. Mukasey,

Attorney General,

Department of Justice

(Executive Office for Immigration Review),

Agency.

Request No. 0520090075

Appeal No. 0720080012

Agency No. B022448

Hearing No. 100200400080X

DENIAL OF REQUEST TO RECONSIDER

On October 27, 2008, the agency timely requested reconsideration of the

decision in Jesus Clemente v. Department of Justice (Executive Office for

Immigration Review), EEOC Appeal No. 0720080012 (September 24, 2008).

EEOC Regulations provide that the Commission may, in its discretion,

grant a request to reconsider any previous Commission decision where

the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

The previous decision affirmed the determination of the Administrative

Judge (AJ) that the agency discriminated against complainant based on

national origin (Hispanic) and sex when he was not selected for one of

the four open positions as an Immigration Judge in November-December

2001.1 In that decision, the Commission agreed with the AJ's finding

that summary judgment was appropriate, in that, the AJ notified the

agency of its failure to carry its burden of production, he provided

the agency an opportunity to supplement the record, and the agency did

not provide sufficient probative evidence to articulate a legitimate,

nondiscriminatory reasons for its actions. Our decision found that a

finding of discrimination and award of suitable relief were in keeping

with Title VII legal principles.

In its request, the agency challenged the Commission's determination and

analysis that it discriminated against complainant. In the main, the

agency attempted to defend its evaluation and selection decision process,

arguing that the selection process was free of discrimination. After a

review by its Human Resources office, panels of nine to 12 supervisory

judges assessed each candidate on five factors,2 and each applicant was

rated as "highly recommended (HR)," "recommended," or "not recommended"

for an interview, and candidates with the most HRs were interviewed for

final selection. The agency stated that complainant did not receive

enough HR votes to merit an interview at any of the three locations,

and three females and one male were selected, none of whom were Hispanic.

In its request, the agency contended that summary judgment was

inappropriate, since genuine issues of material fact existed as to

whether its process could result in discrimination, whether the reviewing

panels were aware that complainant was of Hispanic origin, whether the

comparison of complainant's qualifications to those interviewed (rather

those selected) was error, and whether any discrimination was based on sex

rather than national origin. The agency concluded that its stated reason,

that complainant did not receive enough HR votes to warrant an interview,

was sufficient articulation of its legitimate, nondiscriminatory reason

that provided complainant a full and fair opportunity to demonstrate

pretext. Attached to its request were several "declarations" from some

panel members who stated they had recently again reviewed complainant's

application but would not have rated him HR.

In order to merit the reconsideration of a prior decision, the requesting

party must submit written argument that tends to establish at least

one of the criteria of 29 C.F.R. � 1614.405(b). The Commission's scope

of review on a request for reconsideration is narrow and is not merely

a second appeal. Lopez v. Department of the Air Force, EEOC Request

No. 05890749 (September 28, 1989); Regensberg v. USPS, EEOC Request

No. 05900850 (September 7, 1990). The Commission finds that the agency's

request does not meet the regulatory criteria of 29 C.F.R. � 1614.405(b),

in that, the request does not identify a clearly erroneous interpretation

of material fact or law, nor does it show that the underlying decision

will have a substantial impact on the policies, practices or operation

of the agency.3

After review of the previous decision and the entire record, the

Commission finds that the request fails to meet the criteria of 29

C.F.R. � 1614.405(b), and it is the decision of the Commission to deny

the request. The decision in EEOC Appeal No. 0720080012 remains the

Commission's final decision. There is no further right of administrative

appeal on the decision of the Commission on this request. The agency

shall comply with the Order as set forth below.

ORDER

To the extent that it has not already done so, the agency is ordered to

take the following action:

1. The agency shall place complainant in the position he would have

occupied absent the discrimination, or a substantially equivalent position

if the original position no longer exists. The employment offer shall be

made in writing within 30 days from the date this decision becomes final.

Complainant shall have 15 days from receipt of the offer within which

to accept or decline the offer. Failure to accept the offer within

the 15 day period will be considered a decline of the offer, unless

complainant can show that circumstances beyond his control prevented a

response within the time limit.

2. If the offer is accepted, his appointment shall be retroactive

to the date complainant would have been hired. Back pay, computed in

the manner prescribed by 5 C.F.R. � 550.805, shall be awarded from the

date complainant would have entered on duty until the date complainant

actually enters on duty. Interest on back pay shall be included in the

back pay computation. The complainant shall be deemed to have performed

service for the agency during this period for all purposes except for

meeting service requirements for completion of a required probationary

or trial period.

3. If the offer of employment is declined, the agency shall award

complainant a sum equal to the back pay he would have received, computed

in the manner prescribed by 5 C.F.R. � 550.805, from the date he would

have been appointed until the date the offer was declined. The agency

shall inform complainant, in its offer of employment, of the right to

this award in the event the offer is declined.

4. Within sixty (60) calendar days of the date this decision becomes

final, the agency must pay to complainant $20,000.00 in non-pecuniary

compensatory damages.

5. The agency shall immediately take corrective actions to ensure

such discriminatory actions by and from its supervisors, managers, and all

other staff involved in decisions affecting employment, will not recur,

including providing mandatory training on the rights of employees and

applicants for employment under Title VII, the obligations of management

and personnel staff to insure that those rights are protected, and the

possible relief (both disciplinary by the agency and statutorily from the

Commission or the courts) available to such employees against management

or personnel staff who discriminate.

6. The agency shall post the enclosed notice. See Posting Order,

infra.

7. The agency shall consider taking appropriate disciplinary action

against the responsible management officials. The Commission does not

consider training to be disciplinary action. The agency shall report its

decision to the EEOC compliance officer. If the agency decides to take

disciplinary action, it shall identify the action taken. If the agency

decides not to take disciplinary action, it shall set forth the reason(s)

for its decision not to impose discipline. If any of the responsible

management officials have left the agency's employ, the agency shall

provide documentation of their departure date(s).

8. 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 verifying

that the corrective action has been implemented, copies of which should

be served on complainant and his representative, if any.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

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 77960, Washington,

D.C. 20013. 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 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) (1994 & Supp. IV 1999). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 29

C.F.R. � 1614.409.

POSTING ORDER (G0900)

The agency is ordered to post at its Department of Justice, Executive

Office for Immigration Review, Office of the Immigration Judge (EOIR),

5107 Leesburg Pike, Suite 2545, Falls Church, VA 22041 facility 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.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint. 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 - REQUEST FOR RECONSIDERATION

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

RIGHT TO REQUEST COUNSEL (Z0408)

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

____01-08-2009______________

Date

1 The positions were located in York, PA; Chicago, IL; and New York, NY.

2 The criteria included knowledge of immigration laws and procedures;

substantial litigation experience, preferably in a high volume context;

experience handling complex legal issues; experience conducting

administrative hearings; and knowledge of judicial practices and

procedures. The agency did not maintain the complete voting sheets.

3 When the burden of proceeding moves to the agency, it must articulate

a legitimate, nondiscriminatory reason for its actions. See Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

We note that the agency's burden, while not onerous, must provide

a specific, clear, and individualized explanation for the treatment

accorded the complainant that frames the factual issue "with sufficient

clarity so that [complainant] will have a full and fair opportunity to

demonstrate pretext." Id.

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0520090075

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0520090075