Rafael Rivas, Appellant,v.F. Whitten Peters, Acting Secretary, United States Air Force, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01970402 (E.E.O.C. Jan. 29, 1999)

01970402

01-29-1999

Rafael Rivas, Appellant, v. F. Whitten Peters, Acting Secretary, United States Air Force, Agency.


Rafael Rivas v. United States Air Force

01970402

January 29, 1999

Rafael Rivas, )

Appellant, )

)

v. ) Appeal Nos. 01970402

) 01970403

F. Whitten Peters, ) Agency Nos. KHOF95190

Acting Secretary, ) KHOF95392

United States Air Force, ) EEOC Nos. 360-96-8528X

Agency. ) 360-96-8639X

______________________________)

DECISION

Appellant timely appealed two agency final decisions that it had not

discriminated against him in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. �2000e, et seq. The Commission accepts

the appeals in accordance with EEOC Order No. 960.001. The appeals

are consolidated pursuant to 29 C.F.R. �1614.606.

Appellant filed a formal EEO complaint on February 22, 1995, alleging

discrimination on the basis of his national origin (Hispanic) when he

was not considered or selected for a temporary promotion (not to exceed

120 days) to an Industrial Equipment Mechanic Work leader, WL-5352-10,

position (Complaint #1). The agency accepted the complaint and conducted

an investigation.

On July 21, 1995, appellant filed another formal EEO complaint alleging

discrimination on the basis of reprisal (prior EEO activity) when he was

not selected for permanent promotion to an Industrial Equipment Mechanic

Work Leader, WL-5352-10, position (Complaint #2). The agency accepted

the complaint and conducted an investigation.

At the conclusion of each of the investigations, appellant requested

a hearing before an EEOC Administrative Judge (AJ). Appellant then

requested that the complaints be consolidated for a hearing. The AJ

initially decided to process the complaints together, but then decided

pursuant to 29 C.F.R. �1614.109(e)(3), to issue a Decision on the Record

for Complaint No. 1. A hearing was held on Complaint No. 2 on April

19, 1996, and May 28, 1996. The AJ issued her Findings of Fact and

Conclusions of Law on July 11, 1996.

Complaint No. 1 (Nonselection for Temporary Promotion)

The AJ found that in January 1995, appellant was employed as an Industrial

Equipment Repairer, WG-5352-08. In January 1995, the Compressor Shop

Foreman (Foreman) selected two WG-10 employees (one Hispanic, and one

non-Hispanic) to noncompetitively fill two temporary work leader WL-10

positions. The record revealed that prior to choosing the ultimate

selectees, the Foreman had offered the positions to another employee

(Employee #1)(Hispanic) who declined the position. The AJ found that

appellant did not state a prima facie case of discrimination based on his

national origin in that as a WG-8 employee, he was not similarly situated

to the selectees, who were WG-10'S. Furthermore, she found that since

two of the selectees who were offered the jobs, one of which accepted,

were Hispanic, the Foreman did not have the propensity to discriminate

against Hispanics.

Furthermore, the AJ found that the Foreman had articulated a legitimate,

nondiscriminatory reason for its action. Specifically, the Foreman

testified that he considered the service computation dates (SCD's)

and experience of the employees when deciding who to promote. He also

testified that he first considered the WG-10's, and then if the positions

had not been filled, he would then consider the WG-8's. The Foreman

testified that he first offered the position to Employee #1, as he had

the highest SCD. When Employee #1 declined, the Foreman offered it to

one of the ultimate selectees, who accepted. According to the Foreman,

the next few employees (three Hispanics) on the SCD list were relatively

new to the shop, and thus, he did not select them. Instead, he continued

down the list of WG-10's and selected the second selectee.

Appellant argued that the agency's reason was pretext because the

Foreman had stated that placement into the detail would be by SCD,

and appellant's SCD was above that of the non-Hispanic selectee.

Furthermore, he argued that the Foreman had skipped over three Hispanics

to arrive at the non-Hispanic selectee, and the Foreman had stated that

all mechanics would have the opportunity to rotate into the detail.

Despite this, the AJ found that although appellant disapproved with

the agency's selection policy, he had not proven that the Foreman was

motivated by discriminatory animus. Specifically, the AJ found it

believable that a supervisor would seek to fill a position with the

highest graded employees first, even if the work between the two grades

was not substantially different. Therefore, the AJ found that appellant

had not proven that he was discriminated against, as alleged.

Complaint No. 2 (Permanent Promotion)

With respect to Complaint No. 2, the AJ found that appellant established

a prima facie case of reprisal in that Complaint No. 1 and his subsequent

nonselection for the permanent position in May, were sufficiently close

in time to infer a causal connection and retaliatory motive.

The record reveals that the Foreman and two other Branch Chiefs served

on the selection panel which would rate and select for the promotion.

The selection process included a records review and an interview, both

of which were rated on a ratings sheet by each of the panel members.

Appellant received a rating score of 115 and the selectees received 172

and 170.

With respect to the interview, the panel members all testified that

they asked the same questions of each applicant, and that the questions

were approved by the Personnel Office. The Foreman testified that

he allowed the candidates twenty minutes before the interview to

review the questions. Furthermore, he gave appellant the questions,

in his capacity as union steward, a couple of days before the interview.

According to the Foreman, the panelists discussed the applicants' answers,

made personal opinions, and then they generated a consensus score.

The AJ found that the agency articulated legitimate, nondiscriminatory

reasons for its action. Specifically, the Foreman testified that

appellant's interview did not go well. For example, he described

appellant as "aggressive" and non-responsive to some questions.

Furthermore, he testified that appellant brought a lot of paperwork

into the interview with him, and answered the questions by using the

paperwork. Both of the other members of the panel corroborated the

Foreman's testimony. Specifically, the Equipment Repair Supervisor,

Equipment Repair Branch, (no prior EEO activity) testified that he was

not impressed with appellant's presentation of documents during the

interview and found his responses overly-technical and not necessary.

He also testified that appellant displayed an "anti-management"

attitude which gave him the impression, as a manager, that he owed

something to appellant. The Industrial Equipment Foreman, Preventive

Maintenance Repair Branch (no prior EEO activity), also testified that

appellant appeared "anti-management" and looked as if he had a "chip on

his shoulder."

Although the AJ was concerned with some procedural irregularities

displayed during the selection process, she found that appellant failed

to prove pretext. The AJ found that although the panel had testified to

having arrived at their own individual scores before reaching a consensus

score, none of the panel members had retained their personal notes.

Furthermore, no panelist could identify their individual score. The AJ

found that this information would have shed light on the credibility

of the panel members. However, in light of the fact that the interview

checklist did not specify that panel members should retain their notes,

and there was no evidence that the agency destroyed the notes after

the complaint was filed, she chose not to impose an adverse inference

against the agency.

The AJ also found a high degree of scrutiny was required in light of

the panel's subjective determination that appellant's "attitude" caused

a negative reaction. The AJ found that the panel had found fault with

appellant's characterization of himself as a trainer, the description

of an incident wherein he "badmouthed" a supervisor, and the number

of documents he brought to his interview. One of the panel members

testified that although appellant may have discussed information with

other employees, he did not have authority to train people. With respect

to the story about the engineer, the panel member testified that it

came across as though appellant was putting the engineer down instead

of discussing one of his accomplishments.

The AJ found that the agency's reaction to appellant's interview was

believable and that their characterization of appellant's "attitude" may

be due to the fine distinction between promoting one's accomplishments and

appearing cocky. She noted that the two Branch Chiefs gave consistent

testimony about their reaction to appellant's interview performance.

Both testified that they were unaware of appellant's prior EEO activity.

Furthermore, the Equipment Repair Supervisor was on another selection

panel which promoted appellant to a WG-10 position. According to him,

appellant's interview performance was much different than his interview

performance during the selection at issue. She found this other selection

was persuasive evidence that the panel was not motivated by discriminatory

animus. Although she noted there were some inconsistencies with the

Foreman's testimony, she found insufficient evidence that he retaliated

against appellant or influenced the panel to retaliate against appellant.

Rather, she found that the panel was motivated by appellant's interview

performance as well as the fact that he was a WG-8 grade employee.

In sum, the AJ found that appellant failed to prove that he was

discriminated against, as alleged. On September 13 and 16, 1996, the

agency issued its final decisions adopting the AJ's recommended decision.

It is from these decisions that appellant now appeals.

On appeal, appellant argues with respect to Complaint No. 1 that the AJ

denied him due process when she made a decision on the record. We note

that the AJ has the authority, pursuant to 29 C.F.R. �1614.109(e)(3)

to make a decision on the record if she finds no material issues in

dispute. With respect to Complaint No. 2, appellant argues that the

AJ made errors in deciding not to admit certain pieces of evidence.

The Commission notes that an AJ has broad discretion in the conduct of a

hearing, including such matters as approval of witnesses and admission

of evidence. 29 C.F.R. � 1614.109(c). Upon review of the record, the

Commission finds no evidence that the AJ exceeded her authority in the

conduct of the hearing.

After a careful review of the record in its entirety, the Commission

finds that the AJ's recommended decision sets forth the relevant facts

and properly analyzes the appropriate regulations, policies and laws.

The Commission has reviewed the parties' statements on appeal and discerns

no basis in which to disturb the AJ's findings. Accordingly, it is the

decision of the Equal Employment Opportunity Commission to AFFIRM the

agency's final decisions.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Jan 29, 1999

___________________ ____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations