07a00027
09-22-2000
Roberto R. Rivera, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Roberto R. Rivera v. Department of the Treasury
07A00027
September 22, 2000
.
Roberto R. Rivera,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 07A00027
Agency Nos. 98-2291; 99-2149
Hearing No. 360-99-85
DECISION
The agency timely initiated an appeal from the decision of an EEOC
Administrative Judge (AJ) concerning complainants equal employment
opportunity (EEO) complaint of unlawful employment discrimination based
on age (D.O.B. 10/21/46) and reprisal (prior EEO activity) in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission REVERSES the agency's
final order, and finds that complainant proved reprisal in violation of
the ADEA.
The record reveals that during the relevant time, complainant was a
Customs Inspector at the agency's Brownsville, Texas facility. Complainant
filed formal EEO complaints with the agency on August 31, 1998 and
January 28, 1999, alleging that he had been discriminated against (1)
based on age, when, on May 5, 1998, he was not selected for reassignment
to the position of Customs Inspector, GS-1890-09, in San Antonio,
Texas (vacancy announcement number PER-5-STX-NSJ); and (2) based on age
and reprisal, when, in October 1998, November 1998, and January 1999,
he was not selected for a lateral reassignment to Customs Inspector
positions in the Port of San Antonio.<2> At the conclusion of the
investigation of his January 1999 complaint, complainant received a copy
of the investigative report and requested a hearing before an EEOC AJ,
who subsequently consolidated the two complaints. Following a hearing,
the AJ issued a decision finding that complainant had failed to prove age
discrimination in any non-selection, and had failed to prove reprisal
in his October and November 1998 non-selections. However, the AJ found
that complainant had proven retaliation with respect to his January
1999 non-selection. The AJ ordered EEO training for agency officials,
reassignment of complainant to the position at issue in San Antonio, or a
substantially equivalent position in San Antonio, and other relief. The
AJ noted that because complainant had, since his complaint was filed,
become a GS-11, and the position at issue was a GS-9, the reassignment
awarded to complainant was a demotion in grade, albeit one which afforded
him the transfer of location he sought. The AJ therefore ordered that
if complainant accepted the awarded reassignment, he should not incur
any loss of pay from the date he was promoted to a GS-11 position until
the date he actually commences the GS-9 position in San Antonio. The
AJ further found, however, that complainant was not entitled to
compensatory damages because compensatory damages are unavailable for
discrimination or retaliation claims under the ADEA. Falks v. Department
of the Treasury, EEOC Request No. 05960250 (September 5, 1996). The AJ
also denied attorney's fees and costs inasmuch as these are available
for ADEA claims at the federal sector administrative level. Steinbach
v. Department of the Army, EEOC Request No. 05931045 (July 21, 1994).
The agency's final order did not fully implement the AJ's decision,
instead finding complainant had failed to prove discrimination or
retaliation with respect to any non-selection. The agency filed a
simultaneous appeal pursuant to 29 C.F.R. � 1614.110(a), contending that:
(1) the lateral transfer at issue is not an adverse employment action
cognizable as retaliation; (2) the comment betraying retaliatory animus
on which the AJ relied was made by an agency official who denies any
substantive role in the selection process; (3) the AJ incorrectly drew
an adverse inference against the agency based on the non-production
of the selecting official's existing notes regarding the January 1999
selectee; and (4) the AJ's finding that complainant's January 1999
non-selection was retaliatory cannot be reconciled with her finding
that complainant's October and November, 1998 non-selections were not
retaliatory. Complainant contends that the AJ's decision was correct in
all respects, and requests that the finding of retaliation and relief
awarded be upheld.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion." Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474 , 477 (195 1) (citation omitted). A finding that
discriminatory intent did not exist is a factual finding. See Pullman -
Standard Co. v. Swint, 456 U.S. 273 , 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
factual findings are supported by substantial evidence in the record,
and her legal conclusions, reviewed de novo, are consistent with the
appropriate regulations, policies, and laws.
In reaching this conclusion, we note that while the agency argues on
appeal that the anti-retaliation provisions apply only to retaliation
that takes the form of an "ultimate employment action," the Commission
has expressly rejected as "unduly restrictive" the case law on which
the agency relies. See EEOC Compliance Manual, Section 8 (Retaliation)
at 8-13 (May 20, 1998). Instead, the Commission interprets the statutory
retaliation clauses "to prohibit any adverse treatment that is based
on a retaliatory motive and is reasonably likely to deter the charging
party or others from engaging in protected activity." Id. at 8-13 -
8-14. Non-selection for a lateral transfer clearly satisfies this
standard, and particularly so in this case where the agency's Director of
Field Operations, South Texas Customs Management Center, herself testified
that San Antonio was a very popular work location, she sought the most
highly qualified applicants for the vacancies at. issue, and many Customs
Inspectors have even taken a demotion from GS-11 to GS-9 in order to
transfer to San Antonio from Brownsville and other South Texas locations.
With respect to the AJ's finding of retaliatory intent, we note that
there are numerous facts in the record which, when viewed in combination,
were sufficient to permit a reasonable fact finder to conclude retaliatory
intent motivated complainant's January 1999 non-selection. In particular,
we note that despite conflicting witness testimony, evidence was adduced
based on which a reasonable fact finder could have found, as the AJ
did, inter alia, that (1) the Mission Support Specialist (MSS) who was
responsible for posting the vacancy announcements at issue, collecting the
applications, reviewing them to ensure that each applicant was at least a
GS-9, and forwarding the applications to the selecting officials (the new
Port Director for San Antonio and the Director of Field Operations), spoke
to them, at a minimum, about the fact of complainant's EEO complaints,
in anticipation of their EEO Counselor interviews on complainant's May
1998 non-selection complaint; (2) MSS testified at the hearing that
he believes one should not be rewarded for filing EEO complaints, he
expressed this view at Port Directors conferences, he and other officials
"talk about EEO complaints," and "every time we hear something about EEO
there [are]... negative implications that [it is] always consuming our
workloads and all of that"; (3) MSS stated at a dinner during an agency
conference that complainant would have received the transfer at issue
had he been patient, "but then he filed an EEO complaint," and "now it
will be a cold day in hell before he goes to San Antonio," HT at 107-08;
(4) complainant was at least as qualified as the January, 1999 selectee;
(5) the selecting official's contention that he did not select complainant
because of the format of complainant's application was not credible, where
this criticism was not noted during the earlier selection process in which
complainant used the same application, and where no apparent evaluation
was made of the format of the other candidates applications. Based on
these and other facts, the AJ further found that MSS shared his opinions
about complainant's EEO complaint with the Port Director responsible
for rating the applicants and making the selections, and that while the
selecting official had credible explanations for the May, October, and
November 1998 selections, complainant was not given serious consideration
in January 1999, due to his prior EEO activity.
Inasmuch as a reasonable fact finder could have made these factual
findings on the record evidence, the Commission has no basis for rejecting
the factual findings the agency challenges . on appeal. Accordingly,
we discern no basis to disturb the AJ's decision.
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 order, and find that complainant proved retaliation with respect
to his January 1999 non-selection. The agency shall provide the relief
specified in the following ORDER.
ORDER (Cl199)
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall offer complainant, in writing, a transfer to a
GS-9 Customs Inspector position in San Antonio, Texas, or if none is
available, a substantially equivalent GS-9 position in San Antonio,
Texas. Complainant shall be given a minimum of fifteen (15) days from
receipt of the offer of placement within which to accept or decline
the offer. Failure to accept the offer within the time period set by the
agency will be considered a rejection of the offer, unless complainant can
show that circumstances beyond his control prevented a response within
the time limit. If complainant timely accepts the offer, he shall not
incur any demotion or loss of pay from the date he was promoted to a
GS-11 position until the date he actually commences the GS-9 position
in San Antonio.
2. The agency will provide twenty (20) hours of EEO training within
the next four months, with an emphasis on anti-retaliation provisions
(see EEOC Compliance Manual, Section 8 (Retaliation) (May 20, 1998))
for all officials involved in complainant's non-selection.
3. The agency will post a notice as provided for below.
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.
POSTING ORDER (G1092)
The agency is ORDERED to post at each of its facilities within the South
Texas Customs Management Center 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION(K0800)
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)(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
29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION(M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until such
time as the agency issues its final decision on your complaint. 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
September 22, 2000
__________________
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
the anti-retaliation provisions of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. has occurred at
the South Texas Customs Management Center.
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 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 facility was found to have unlawfully retaliated against the
individual affected by the Commission's findings, when the agency
did not select him for a lateral transfer. The agency shall therefore
remedy this retaliation by providing this individual with a retroactive
offer of transfer to the same or a substantially equivalent position,
and providing EEO training to the responsible agency officials.
The 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 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 29 C.F.R. Part 16 14 in deciding the present appeal. The
regulations, as amended, may also be found at the Commission's website
at www.eeoc.gov.
2The selecting official testified that the October, 1998, November,
1998, and January, 1999 selections were all made pursuant to a single
vacancy announcement.