01A04026
07-30-2002
Marcus C. Olivas, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Marcus C. Olivas v. Department of the Navy
01A04026
07-30-02
.
Marcus C. Olivas,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A04026
Agency No. 97-00251-086
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Pipefitter, WG-4202-10 at the agency's Puget Sound Naval
Shipyard facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on August 22, 1997, alleging that he was
discriminated against on the bases of national origin (Hispanic), color
(Brown), and reprisal for prior EEO activity when he was not selected
from Merit Promotion Announcement #A-085-97 for a permanent promotion
to Engineering Technician, GS-802-11.
On June 11, 1997, the agency issued the promotion announcement which
was used to establish a register of eligible candidates to fill
the vacancies. Complainant was one of 48 applicants, and one of
13 applicants rated and ranked as �Best Qualified� (BQ). Of the 13 BQ
candidates, there were 12 Caucasians<1> and 1 Hispanic [complainant]. Five
applicants (all Caucasians) were selected and promoted effective June
29, 1997.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency acknowledged that complainant had previously
filed an EEO complaint on March 15, 1990, which resulted in a temporary
promotion that lasted two and half years. Since the filing of the
complaint in 1990, the agency determined that the complainant was
involved in two EEO committees and a special task force looking into
discrimination issues at the agency, but asserted that the complainant
failed to show that he was involved with the committees at the time of
the selections in the instant case. The agency noted that the selecting
and approving officials in the instant case were aware of, but not
involved in, complainant's prior EEO complaint. The agency concluded,
however, that because the complainant's prior EEO complaint was filed
over seven years prior to the non-selection at issue, and since that
time he had received at least two temporary promotions and a detail,
the complainant failed to provide sufficient data to establish a prima
facie case of reprisal discrimination.
The FAD continued by describing the agency's proposed legitimate,
non-discriminatory reasons the complainant was not selected. The agency
asserted that the Selecting Officer (SO) told the EEO Counselor that
he took into account additional specialized experience over and above
what was required to place the best possible people in the job. The SO
specifically mentioned to the EEO Counselor that the five selectees had
the specialized experience because two of the selectees had nine-to-ten
years experience in project material management; one had extensive
supervisory experience; one had functioned as a Lead Progressman on
special projects; and one had extensive computer experience. The FAD
thus concluded that the agency provided legitimate, non-discriminatory
reasons for its non-selection of the complainant.
Finally, the FAD found that the complainant did not prove that the
agency's legitimate, non-discriminatory reasons were pretext to mask
discrimination. The agency recognized the complainant's claim that he
was more qualified than the selectees and that the extra criteria used by
the SO was subjective. The agency, however, determined that while the
criteria the SO used in making his selection may have been subjective,
it was also measurable and quantifiable. In addition the agency found
that the complainant's qualifications were not so plainly superior to
the selectees' as to require a finding of pretext.
Thus, the FAD found that the complainant failed to prove that he was
discriminated against in the matter alleged.
On appeal, complainant contends that he did establish a prima facie
case of reprisal, and that while each of the selectees may have had
one category of special experience the SO listed, he had specialized
experience in more than one of the categories. Therefore, the complainant
contends that he was plainly superior to one or more of the other
candidates.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that
the agency's explanation is a pretext for discrimination. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
We find that complainant established a prima facie case of national origin
and color discrimination. Complainant is a member of a protected group
(Hispanic); he was qualified for the position; he was one of thirteen
candidates recommended as qualified to the Selecting Official; he was
not selected for the position; and the selectees were all Caucasian.<2>
With respect to the legitimate, nondiscriminatory reasons, we first note
that the reasons proffered by the agency were never given in the form of
sworn testimony. Despite the EEO Investigator's request for both the
SO and the SO's supervisor (who had signed off on the selection of the
promotions in this case) to complete affidavits, none were ever filled
out. Therefore, the agency has not presented evidence of its reasons,
other than the statements made to the EEO Counselor. Additionally,
the EEO Investigator requested all of the selectees' application files,
but only received four of the five files. EEOC Regulation 29 C.F.R. �
1602.14 requires employers to preserve all personnel records, including
applications, relevant to the charge of discrimination. The Commission
has long held that once an EEO complaint is filed in connection with a
non-selection, the agency is obligated to retain all relevant records
concerning the selection process for that position. Ramirez v. United
States Postal Service, EEOC Request No. 05920839 (March 4, 1993);
Colquitt v. Department of Veterans Affairs, EEOC Request No. 05870528
(June 14, 1988). As a result of agency's failure to supply such
crucial information, the Commission may draw adverse inferences. 29
C.F.R. � 1614.108(c). Therefore, the agency's failure to provide
sworn testimony from the SO and his supervisor, along with the agency's
inability to produce key evidence concerning one of the selectees,
gives rise to an adverse inference against the agency's articulated
reasons for non-selection of the complainant.
Having found that an adverse inference should be drawn, the Commission
finds that the evidence concerning the complainant's complaint should
be re-examined. The SO told the EEO Counselor that the 5 Caucasian
applicants were selected for the Engineering Technician, GS-11, positions
over the complainant because the selectees had specialized experience the
complainant did not have. In the complainant's brief, he asserts that
the agency erred in finding that the selectees had specialized experience
he did not possess. The SO asserted that Selectees 1(S-1) and 2 (S-2)
were more qualified than the complainant because they had 9-10 years
project management experience; Selectee 3 (S-3) had extensive supervisory
experience; Selectee 4 (S-4) had functioned as a Lead Progressman on
special projects; and Selectee 5(S-5) had extensive computer experience.
Even if we consider the SO's reasons for not promoting the complainant
despite the fact that the SO has never provided sworn testimony,
the record does not support his reasoning. The complainant contends
that he has had seven years of project management experience which
put him ahead of S-3, S-4, and S-5 in number of years in the position.
Complainant also asserts that S-4 had served as Lead Progressman on one
project, while he has served as a Lead Progressman on several occasions
and two other selectees had never served as a Lead Progressman.
The Commission notes that in non-selection cases, pretext may
be found where the complainant's qualifications are demonstrably
superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). However, an employer has the discretion to choose among
equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981). Additionally, an employer has greater discretion
when filling management level or specialized positions. Wrenn v. Gould
808 F.2d 493, 502 (6th Cir. 1987).
Even if we consider the SO's reasons for non-promotion, we find that
the agency's reasons are a pretext for discriminatory animus toward
complainant's national origin and color. In reaching this conclusion,
we find that complainant's qualifications are superior to S-1. S-1 did
have approximately nine years in the project material management (PMM)
position, compared to the complainant's approximately seven years.
However, the vacancy announcement did not list a minimum number of years
in the PMM position as a prerequisite for the promotion, nor did it
describe extra experience in the PMM position as a factor in the decision
making process. In fact, S-3, S-4, and S-5 all had fewer years experience
in the PMM position than the complainant. Therefore, relying on years
of experience for selecting S-1 over complainant lacks credibility.
In addition, the application process required each applicant to complete
a �Supplemental Experience and Supervisory Appraisal Form� (Supplemental
Form). This form required the applicant and his supervisor to rate
the applicant in 16 categories that matched with elements of the job
he was seeking. Scores were 1 to 5 in each category, allowing for
a total score of 80/80. The complainant received a score of 79/79.
S-1 received a score of 69/71 with lower marks than the complainant in
several categories. Finally, in the section of the application asking
for any training or awards the applicant received, S-1 lists none,
while the complainant lists a multitude of training and awards. Thus,
while the S-1 was in his current position longer than the complainant,
the complainant was plainly superior in terms of the skills and training
needed for the position in question.
We would further note that, without S-4's application package in the
record, we conclude that complainant was better qualified than S-4 as
well. Even if we consider the SO's unsworn reasons for promoting S-4
instead of complainant, the facts do not support the reasons provided
by the SO. With respect to S-4, his Supplemental Form score was 75/75,
four points lower than the complainant's. Furthermore, the complainant
lists what he considers Lead Progressman duties that would �dwarf�
those of S-4. Specifically, complainant contends that S-4 was a �Lead
Progressman� on one off-station assignment in San Diego which lasted
three months, while the complainant has served as a Lead Progressman in
Japan for eight months, as well as two prior two month projects similar
to S-4's. Thus, the Commission finds that discrimination existed as to
the non-promotion of the complainant compared to S-4 as well because
the complainant established a prima facie case of national origin and
color discrimination, the SO's legitimate, nondiscriminatory reason for
selecting S-4 over the complainant is not part of any sworn record, and
the complainant has shown pretext in that he provided evidence that he
had more Lead Progressman experience than S-4, while S-4's application
was missing.
Therefore, 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 reverse the agency's final
decision, enter a finding of national origin and color discrimination,
and remand this case to the agency to take remedial actions in accordance
with this decision and Order below.
ORDER
The agency is ordered to take the following remedial action:
Within thirty (30) days from the date of this decision becomes final,
the agency shall offer to retroactively promote complainant to the
Engineering Technician, Engineering and Planning Department, GS-802-11,
position. Complainant shall be awarded back pay, seniority and other
benefits from the date of the effective promotion.
The agency shall conduct a supplemental investigation on the amount of
compensatory damages to be awarded complainant. Complainant shall submit
objective evidence in support of his claim for compensatory damages.
Such objective evidence may include, but shall not be limited to:
health care bills and receipts; statements from complainant concerning
his emotional pain or suffering, inconvenience, mental anguish, loss
of enjoyment of life, injury to character or reputation, injury to
credit standing, loss of health, and any other nonpecuniary losses
that are incurred as a result of the discriminatory conduct; or
statements from others, including family members, friends, health
care providers, and other counselors (including clergy) that address
outward manifestations or physical consequences of emotional distress,
including sleeplessness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self-esteem, excessive fatigue,
or a nervous breakdown. See Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993). No later than ninety (90) calendar days
after the date that this decision becomes final, the agency shall issue
a final agency decision addressing the issue of compensatory damages.
The agency shall submit a copy of the final decision to the Compliance
Officer at the address set forth below.
The agency shall determine the appropriate amount of back pay, with
interest and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501 no later than sixty (60) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there is
a dispute regarding the exact amount of back pay and/or benefits, the
agency shall issue a check to the complainant for the undisputed amount
within sixty (60) calendar days of the date the agency determines
the amount it believes is due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled �Implementation of
the Commission's Decision.�
The agency is directed to conduct training for the Selecting Officer,
who was found to have discriminated against complainant, when he did
not select him. The agency shall address this employee's responsibility
with respect to eliminating the discrimination in the workplace and all
other supervisory and managerial responsibilities under equal employment
opportunity law.
The agency shall consider taking disciplinary action against the
individual identified in the agency's final decision as SO, since this
individual was identified as being responsible for the discriminatory
acts at issue in this complaint. The agency shall report its decision
to the 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 this individual have left
the agency's employ, the agency shall furnish documentation of their
departure date(s).
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Puget Sound Naval Shipyard 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
____07-30-02______________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found that
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Department of the Navy, Puget Sound Naval Shipyard facility, supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Department of the Navy, Puget Sound Naval Shipyard facility, has
been ordered to remedy an employee affected by the Commission's finding
that he was discriminated against because of national origin and color
when the agency did not promote him. As a remedy for the discrimination,
the facility was ordered to provide EEO training to management officials,
and provide the employee with a retroactive promotion. The Department
of the Navy, Puget Sound Naval Shipyard facility, will ensure that
officials responsible for personnel decisions and terms and conditions of
employment will abide by the requirements of all Federal equal employment
opportunity laws.
The Department of the Navy, Puget Sound Naval Shipyard facility, will
not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
Date Posted: ________________
Posting Expires: _____________
29 C.F.R. Part 16141For comparison purposes, we identify the comparative
employees who are not Hispanic as Caucasian.
2We agree with the agency that complainant failed to establish a
prima facie case of retaliation due to the lengthy amount of time that
transpired between complainant's prior protected activity and the issue
in this complaint.