Rogeitte Bernardino, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionDec 22, 2000
01a05127 (E.E.O.C. Dec. 22, 2000)

01a05127

12-22-2000

Rogeitte Bernardino, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Rogeitte Bernardino v. Department of Defense

01A05127

December 22, 2000

.

Rogeitte Bernardino,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 01A05127

Agency No. JH-99-013

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her 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. <1> The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. Complainant alleges that she was discriminated

against on the bases of sex (female) and reprisal, for participating in

EEO activity, when:

she was not selected for a GS-12, Supervisory Environmental Protection

Specialist (SEPS) position;

some of her duties were taken away from her current GS-11 position;

she was denied an extension on her overseas appointment; and

she was denied DEMIL and Sales Contracting training.

For the following reasons, the Commission in part REVERSES and in part

AFFIRMS the agency's FAD.

The record reveals that during the relevant time, complainant was

employed as an Environmental Protections Specialist, GS-11, at the

agency's Okinawa, Japan facility. Believing she was a victim of

discrimination, complainant sought EEO counseling and, subsequently,

filed a formal complaint on May 23, 1999. At the conclusion of the

investigation, complainant was provided with a copy of the investigative

file and informed of her 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.

The final decision concluded that complainant failed to demonstrate by a

preponderance of the evidence that she was discriminated against under

any of her alleged bases. It is from this decision that complainant

now appeals. The agency stands on the record and requests that we affirm

its final decision.

BACKGROUND

In January 1999, complainant's immediate supervisor returned to

the United States thereby creating a vacancy for the SEPS position.

Complainant applied for the position and the Acting Chief (AC) of

the Defense Reutilization and Marketing Office conducted interviews.

After reviewing the applications and interviewing the candidates,

AC submitted his top three candidates to the Asia Zone Manager (AZM)

for approval. Among these three candidates, AC identified complainant

as the best qualified.

AZM met with AC to discuss the candidates' qualifications. During

the meeting, AZM asked AC what complainant was doing at the moment.

AC responded that complainant was on maternity leave. AZM then said:

�that's what I mean, what is she doing now?� AC believed that AZM's

comment was sexist and that his selection was based on the fact that

complainant had been on maternity leave. (Report of Investigation

at Exhibit G). AZM told AC to select another candidate (S1). S1 was

ultimately selected for the SEPS position. AC said that although he

signed the Selection Certificate as the selecting official, AZM actually

made the selection. AC asserts that he signed the Selection Certificate

because �...[AZM] was my boss and that is what he wanted me to do.�Id.

Complainant filed an EEO complaint based upon her non-selection for the

SEPS position. Complainant later amended her complaint, to allege that

the agency retaliated against her for filing the July 7, 1999 complaint,

by changing her duties, denying her request to extend her overseas

appointment and denying her requests for training.

ANALYSIS AND FINDINGS

Sex Discrimination

The Pregnancy Discrimination Act (PDA), 42 U.S.C. � 2000e(k), which

was enacted in 1978, states that discrimination on the basis of

"pregnancy, childbirth or related medical conditions" constitutes sex

discrimination under Title VII. Moreover, the PDA provides that for all

employment-related purposes, pregnant employees shall be treated the same

as other employees similarly situated with respect to their ability to

work.

We find that complainant has produced direct evidence that discrimination

was a motive for the adverse employment action, i.e., non-selection

for the SEPS position. The uncontroverted evidence is that AZM, the

selecting official, made an oral statement negatively referencing the

fact that complainant was on maternity leave while making his selection

decision. "Direct" evidence is that which on its face demonstrates a bias

against a protected group. See EEOC Revised Enforcement Guidance on

Recent Developments in Disparate Treatment Theory, No. 915.002 (July 14,

1992). The Commission has previously held that comments from a supervisor

which evidence a direct correlation between pregnancy-related matters

such as the use of maternity leave and the agency's adverse employment

action establish a violation of the PDA and Title VII. Bernardi v. United

States Postal Service, EEOC Appeal No. 01954090 (August 21, 1997), Request

for Reconsideration Denied, EEOC Request No. 05980031 (May 29, 1998).

The agency's argument that complainant failed to demonstrate that her

qualifications are not observably superior to those of the selectee

is not relevant to the issue of whether complainant was discriminated

against.<2> We find that the agency discriminated against complainant.

In so finding we note that AC indicated that AZM refused to listen to the

reasoning behind his recommendation of complainant for the SEPS position.

Retaliation

For the purposes of the instant analysis, we will assume that the

complainant has established a prima facie case of discrimination. Where

the agency proffers a reason for the challenged action, the inquiry shifts

from whether complainant has established a prima facie case to whether

she has demonstrated by preponderance of the evidence that the agency's

reasons for its actions merely were a pretext for discrimination. Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

With respect to the agency changing complainant's duties, we find that

the agency has articulated a legitimate non-discriminatory reason for

its actions; namely, that duties were redistributed throughout the team

in order to cross-train employees. The official responsible for the

reassignment of duties states that there was a need for each team-member

to familiarize themselves with the work done by others on the team.

The reassignment of duties was designed to prevent having to train

personnel each time someone leaves the team. Complainant has failed to

establish that the agency's reason is a pretext to mask discrimination.

With respect to the agency denying an extension on complainant's overseas

appointment, we find that the agency has articulated a legitimate

non-discriminatory reason for its actions; namely, that complainant's

extension request did not meet the criteria for such an extension, such

as, difficulties in recruitment, special projects, current world events or

significant adverse mission impact. Moreover, complainant has failed to

demonstrate that the agency's reason is a pretext to mask discrimination.

With respect to the agency denying complainant training, we find that

the agency has articulated a legitimate non-discriminatory reason for its

actions; namely, that complainant was not selected for training because

she did not need the training in order to perform the functions of her

duties. According to the agency, priority in training opportunities is

determined by the relatedness of the training to the trainee's position

description, performance plan and job function. While the record does

not contain a comparison of the selectee's qualifications relative to

these factors, complainant does not challenge the criteria used by the

agency nor does she challenge the agency's assertion that the training

she sought was not related to her duties. Complainant has failed to

establish that the agency's reason is a pretext to mask discrimination.

CONCLUSION

Therefore, we AFFIRM the agency's finding that complainant failed to

demonstrate that she was retaliated against. However, we find that

complainant was discriminated against on the basis of sex and in so

doing we REVERSE the agency's FAD. Accordingly, we remand this matter

for a supplemental investigation in accordance with the following ORDER,

and the applicable EEOC regulations.

ORDER

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 Supervisory Environmental Protection Specialist, GS-12, Okinawa,

Japan, or if the position is not available, a substantially equivalent

position. 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 her control prevented a response

within the time limit.

2. The agency will provide eight (8) hours of EEO training within the

next four months, with an emphasis on The Pregnancy Discrimination

Act, 42 U.S.C. � 2000e(k) for all officials involved in complainant's

non-selection.

3. The agency shall determine the appropriate amount of back pay 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. Complainant shall cooperate in the agency's efforts

to compute the amount of backpay 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 complainant for the undisputed amount within sixty (60)

calendar days of the date the agency determines the amount it believes

to be due. Complainant may petition for enforcement or clarification

of the amount in dispute. The petition for clarification or enforcement

must be files with the Compliance Officer, at the address referenced in

the statement entitles Implementation of the Commission's decision.

4. Within 30 days of the date this decision becomes final, the agency

shall request objective evidence from complainant in support of her

claim for compensatory damages with sufficient specificity to allow

complainant to reasonably respond to the agency's request. The agency

shall conduct a supplemental investigation to determine the amount of

compensatory damages due to complainant, if any, and issue a final agency

decision. The supplemental investigation and final agency decision shall

be completed within 60 days of complainant's presentation of objective

evidence. A copy of the final agency decision must be submitted to the

Compliance Officer, as described, below.

5. 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.

6. The agency will post a notice as provided for below.

POSTING ORDER (G0900)

The agency is ordered to post at its Defense Logistics Agency, Defense

Reutilization and Marketing Office, Okinawa, Japan, 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 (K0900)

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

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 (M0900)

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

(R0900)

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").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 22, 2000

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

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 seq., has occurred at this facility.

Federal law requires that there be no discrimination or retaliation

against any employee or applicant for employment because of that person's

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, PRIOR EEO ACTIVITYor

PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion,

compensation, or other terms, conditions, or privileges of employment.

The Defense Logistics Agency, Defense Reutilization and Marketing Office,

Okinawa, Japan (hereinafter referred to as �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 has been found to have discriminated against an employee

on the basis of sex, by using maternity leave as a factor in making a

hiring decision. The facility has been ordered to give the supervisors

involved training regarding the requirements of the law referred to in

this posting and to ensure that officials responsible for personnel

decisions and terms and conditions of employment will abide by the

requirements of all Federal equal employment laws.

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

1 On 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 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The Civil Rights Act of 1991 amended Title VII to provide that

where there is direct evidence of discrimination based on race, color,

religion, sex, or national origin, the employer's demonstration that

it was also motivated by a lawful factor does not bar liability, but

rather precludes an award of damages, reinstatement, hiring, promotion,

and back pay remedies. Cf. Walker v. Social Security Administration,

EEOC Request No. 05980504 (April 8, 1999). In this case, the agency

has failed to establish that it would have non-selected the complainant

absent the unlawful consideration of complainant's maternity leave.