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