01962111
01-11-2000
Ralph J. Perez, Complainant, v. Aida Alvarez, Administrator, U.S. Small Business Administration, Agency.
Ralph J. Perez v. U.S. Small Business Administration
01962111
January 11, 2000
Ralph J. Perez, )
Complainant, )
)
v. ) Appeal No. 01962111
) Agency No. 03-93-371
Aida Alvarez, )
Administrator, )
U.S. Small Business Administration, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (EEOC or Commission) from the final agency decision
concerning his equal employment opportunity (EEO) complaint, which alleged
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
(1) Whether the agency properly dismissed complainant's allegations that
he was denied four employment opportunities in the agency's Washington,
DC, Atlanta, and Boston offices for untimely EEO contact.
(2) Whether complainant has proven, by a preponderance of the evidence,
that the agency discriminated against him because of his national origin
(Puerto Rican) when the agency rescinded Vacancy Announcement JOA #92-09,
Branch Manager Position, GS-13/14, and subsequently did not select him
for the position when it was re-advertised under Vacancy Announcement
JOA #92-08.
CONTENTIONS ON APPEAL
Complainant argues that the four nonselections constitute a continuing
violation by the agency and, therefore, his claims regarding the first
three nonselections were improperly dismissed by the agency for untimely
EEO contact. Complainant further contends that the agency discriminated
against him when it failed to select him for any of the four positions.
BACKGROUND
On November 20, 1992, complainant, then a Business Development Specialist
with the Minority Business Development Agency, U.S. Department of Commerce
in New York, GS-12, contacted an EEO counselor and alleged that the agency
discriminated against him as delineated in the above-entitled statement
"Issues Presented." He alleged that he had repeatedly applied for but had
not been selected for positions at the SBA based on his national origin.
The circumstances surrounding the four positions at issue are as follows:
(1) On June 19, 1990, complainant was not selected for the position
of Deputy Assistant Administrator for Administration, Washington, DC,
GM-340-14/15, advertised under Job Opportunity Announcement (JOA) #90-39;
(2) On April 1, 1991, complainant was not selected for the position
of Deputy Regional Administrator for Management and Special Programs,
Atlanta, Georgia, advertised under JOA #91-12;
(3) On March 27, 1992, the recruitment action for the position of
Deputy Regional Administrator, Regional Office, Boston, Massachusetts,
advertised under JOA #DRA-01 was canceled.
(4) The recruitment action for the position of Branch Manager,
GM-340-13/14, New York District Office, Melville, New York, advertised
under JOA #92-09, (opening date February 19, 1992; closing date March 27,
1992, was canceled on or about December 2, 1992, was re-advertised under
JOA #NY-08 (GM-340-13/14, Area of Consideration: Nationwide- SBA only).
Complainant stated that he had been working in the economic and
development field for over 30 years. He argues that he has both public
and private sector experience and is highly qualified for a Managerial
position at the GS-15 grade level. Moreover, he states that he has
a business degree from Columbia University, which combined with his
work experience, makes him eminently qualified for any position with
the agency.
Complainant stated that in 1990, after he applied for position (1), he
never received a response to his application for the job. Similarly,
he stated he never received a response to his March 20, 1991, application
for position (2). Complainant stated that in response to his August 20,
1991, application for position (3), he received a letter dated April 1992,
informing him that the position had been canceled. He later learned
that the position had been filled. In March 1992, complainant applied
for position (4). He stated he was informed that he made the Best
Qualified List and was among the top five applicants for the position,
but thereafter heard nothing for months. Complainant purports that in
November 1992, he noticed that the position had been readvertised as
Vacancy NY-08, for SBA employees only. Complainant argues that it was
only after the "blatant example of unlawful discrimination" displayed
by the readvertisement of position (4) that he was able to appreciate
that he had been discriminated against because of his national origin.
After informal counseling, complainant filed a formal complaint on
March 11, 1993. Thereafter, the agency conducted an investigation of all
allegations, provided complainant with a copy of the investigative report,
and advised Complainant of his right to request either a hearing before
an EEOC administrative judge (AJ) or an immediate final agency decision
(FAD). Complainant requested an immediate FAD. On November 30, 1995,
the agency issued a FAD finding no discrimination.
ANALYSIS AND FINDINGS
I. Continuing Violation
The Commission has determined that the normal time limit for contacting an
EEO counselor may be suspended if a continuing violation is demonstrated.
Wood v. United States Postal Service, EEOC Request No. 05930221
(September 24, 1991)(citing Vissing v. Nuclear Regulatory Commission,
EEOC Request No. 05890308 (June 13, 1989). A determination of whether
a series of discrete acts constitutes a continuing violation depends on
the interrelatedness of the past and present acts. Berry v. Board of
Supervisors, 715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868
(1986). It is necessary to determine whether the acts are interrelated by
a common nexus or theme. See Vissing v. Nuclear Regulatory Commission,
EEOC Request No. 05890308 (June 13, 1989); Verkennes v. Department of
Defense, EEOC Request No. 05900700 (September 20, 1990). Should such a
nexus exist, complainant will have established a continuing violation,
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by complainant,
Scott v. Claytor, 469 F. Supp. 22, 26 (S. D.C. 1978), as long as one of
the acts fell within the time period for contacting an EEO counselor.
See McGivern v. United States Postal Service, EEOC Request 05901150
(December 28, 1990). Also relevant to the inquiry is whether complainant
had prior knowledge or suspicion of discrimination and the effect of
this knowledge. Wood, EEOC Request No. 05930221 (citing Sabree v. United
Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st
Cir. 1990); Hagan v. Department of Veterans Affairs, EEOC Request
No. 05920709 (January 7, 1993)(citing Sabree, 921 F.2d 396).
In his appeal, complainant argues that he has established a continuing
violation because allegation (4) was timely brought to the attention of
the EEO counselor and that all of the nonselections involved a pervasive
agency-wide practice of systematic discrimination against Hispanics.
He points out that because he was never notified of the selection decision
in regards to allegations (1), (2), and (4), that it was only after the
blatant example of unlawful discrimination displayed in allegation (4)
that he was able to appreciate that he was being discriminated against
because of his national origin.
However, complainant's affidavit states he applied for the position in
allegation (3) on August 20, 1991. In April 1992, complainant received
a letter stating that the position had been canceled. Complainant later
called the agency in Boston and was apprised that the position had indeed
been filled. We believe that this information coupled with allegations
(1) and (2), as well as complainant's past EEO experience (indicated on
complainant's resume and 171-A form), should have triggered complainant's
suspicion that discrimination could have occurred. While these events
may or may not be a prelude to and/or part of a continuing violation,
complainant did not contact an EEO counselor regarding one or more
of these acts until November 20, 1992, which is outside the counselor
contact period in regards to allegations (1), (2), and (3). Moreover,
the allegations involve different cities, hiring officials, and hiring
criteria which do not lend support to a continuing violation exception.
Therefore, we affirm the FAD's dismissal of allegations (1), (2), and (3)
for untimely EEO contact. However, the Commission finds that complainant's
claim regarding his nonselection for Position (4), the Branch Manager
Position in Melville New York, was timely made. Accordingly, we now
turn to the merits of that claim.
II. Readvertisement of Vacancy Announcement JOA #92-09
Following the standards of proof established by McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. Of Community Affairs
v. Burdine, 450 U.S. 248 (1981), complainant has presented a prima
facie case of national origin discrimination by showing that he
applied and was qualified for the position, yet was not selected by
the agency under circumstances sufficient to raise an inference of
discrimination. Specifically, the agency's District Director indicated
that notwithstanding complainant's status as a best qualified applicant
for the position, the position was re-advertised "SBA-only" because there
was no one on the best qualified list they wanted to hire. Subsequently,
an individual not of complainant's national origin was placed in the
position. Complainant must further show that the agency's articulated
reasons for not selecting him for the Branch Manager Position were
pretexts for discrimination. This can be accomplished either by
establishing that the stated reasons were not the actual motivation for
the action taken or by showing that the agency's explanation is unworthy
of credence. Burdine, 450 U.S. at 254 (1981). At all times, complainant
retains the ultimate burden of persuasion, and it is his obligation to
show, by a preponderance of the evidence, that the agency acted on the
basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 113
S. Ct. 2742, 2749 (1993), citing U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 716 (1983) and Burdine, 450 U.S. at 256.
Complainant essentially alleges that the agency has manipulated the
selection process for the Branch Manager position to exclude him by
rescinding Vacancy Announcement JOA #92-09 and readvertising the position
under an amended announcement JOA #92-08 which restricted the qualified
applicants to SBA employees. In such a case, the proper focus is not
on the respective qualifications of the selectee and the complainant,
but the reasons advanced by the agency for not filling the vacancy in
the first instance. See Strain v. U.S.P.S., EEOC Appeal No. 01921225,
(1992); see also McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
The District Director indicated that the position was re-advertised
"SBA-only" because there was no one on the original best qualified list
they wished to hire. The Director further stated that the agency did
not have a specific candidate in mind, but wanted someone with banking
experience. The Director stated the Regional Administrator also expressed
an interest in a candidate with banking experience. The Commission finds
that Complainant has proven, by a preponderance of the evidence that
the agency's explanation is unworthy of credence. First, the Commission
notes that the agency implies that by readvertising the Branch Manager
position, they were looking for more qualified applicants but amended
the vacancy announcement to limit its source of candidates. Second,
we note that according to complainant's rating on Knowledge Skills and
Abilities ("KSA") (VA JOA #92-09, KSA #5) he possessed the requisite
amount of "banking experience" agency officials claimed they were looking
for. Specifically, KSA #5 stated the following:
"Ability to analyze financial statements and act on applications for
loans or assistance for which financial criteria and conditions are
a prerequisite."
Undisputed by the agency, was complainant's broad managerial experience,
and banking experience obtained as an SBA loan officer.
Third, the Commission finds the agency's claim that "banking experience"
was an important reason for readvertising the Branch Manager position
highly suspect since such experience or skills were not included in the
amended VA JOA #92-08. In fact, the amended VA deleted these skills as
they were contained in the initial VA JOA #92-09. As a result of the
agency discriminatory actions, we find that complainant was denied an
employment opportunity with the agency.
III. Remedy
In Day v. Matthews, 530 F.2d 1083, 1085 (D.C. Cir. 1976), the Court found
that where there has been discrimination in the promotion process, an
employer may avoid providing a remedy for the non-promotion by showing
with clear and convincing evidence that the complainant would not have
been promoted absent the discrimination. The rationale for the clear
and convincing standard is that it is equitable that any resulting
uncertainty be resolved against the party whose action gave rise to
the problem. Hence, once discrimination is shown, relief should not
be narrowly defined. Id. at 1086. See also Hong v. Department of the
Interior, EEOC Request No. 05910297 (May 9, 1991) (Commission found
that the rule in Day v. Matthews applied where an agency failed to refer
the complainant for promotion as one of six best qualified candidates
for either of two positions). Under this standard, we find that the
agency has failed to demonstrate that complainant would not have been
selected for the position absent discriminatory animus. In fact, the
record of complainant's qualifications in the banking field would seem
to indicate that he possessed the qualifications the agency purportedly
desired for the incumbent. Therefore, we will order that complainant be
offered the position at issue or a substantially equivalent position,
with back pay and benefits.
We further find that since complainant has repeatedly requested that he
be compensated for the "pain and suffering" he has allegedly undergone
for the last few years as a result of the discrimination, a compensatory
damage award must be considered as an element of relief. However, since
the record does not yet contain evidence establishing that he incurred
pecuniary or non pecuniary damages as a result of the discrimination,
we will order a supplemental investigation on this issue.
CONCLUSION
Based on the foregoing, it is the decision of the Equal Employment
Opportunity Commission to REVERSE the FAD in part finding that it did not
discriminate against complainant when it rescinded Vacancy Announcement
JOA #92-09, and readvertised the Branch Manager position under Vacancy
Announcement JOA #92-08. The Commission AFFIRMS the FAD in part finding
that it properly dismissed complainant's nonselections regarding three
promotional opportunities. In accordance with this decision, the agency
shall comply with the following order.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall offer complainant the position of Branch Manager,
GM-340-13/14, or a substantially equivalent position, as of the effective
date of the selection under the subsequent Vacancy Announcement JOA
#92-08. Complainant shall also be awarded back pay, seniority and other
employee benefits from that date.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 to be 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."
2. Appellant is entitled to an award of reasonable attorney's fees
incurred in the processing of the claim (including appeals) regarding
the discriminatory recission and readvertisement of the Branch Manager
position.
3. The agency shall conduct a supplemental investigation pertaining
to appellant's entitlement to compensatory damages. The agency shall
afford appellant sixty (60) days to submit additional evidence in support
of his claim for compensatory damages.<2> Within sixty (60) days of
its receipt of appellant's evidence, the agency shall issue a final
decision determining appellant's entitlement to compensatory damages,
together with appropriate appeal rights. A copy of the final decision
must be submitted to the Compliance Officer, as referenced below.
4. 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 (G1092)
The agency is ORDERED to post at its New York District Office, Melville,
New York 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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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").
January 11, 2000
______________ ___________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________________
Date
__________________________
Equal Employment Assistant
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, as amended,
42 U.S.C. � 2000e et al. has 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Small Business Administration, New York District Office, Melville,
New York, supports and will comply with such Federal law and will
not take action against individuals because they have exercised
their rights under law.
The Small Business Administration, New York District Office,
Melville, New York, has remedied the employee affected by the
Commission's finding by retroactively awarding him a Branch Manager,
GS-13/14, position, with back pay and benefits and by remanding for
a supplemental investigation into compensatory damages. The Small
Business Administration, New York District Office, Melville, New York,
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 Small Business Administration, New York District Office, Melville,
New York, 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 1614
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 See, e.g., Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993); Benton v. Department of Defense, EEOC Appeal No.
01932422 (December 10, 1993).