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.