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