01982089
03-24-2000
Ada Rivera, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Ada Rivera v. Department of Justice
01982089
March 24, 2000
Ada Rivera, )
Complainant, )
) Appeal No. 01982089
v. ) Agency No. P948417
) Hearing No. 160-96-8474X
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final No
Discrimination decision concerning her equal employment opportunity (EEO)
complaint of unlawful employment discrimination in violation of Title
VII.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405). Complainant claims she
was discriminated against on the basis of sex when:
(1) she was not selected in June 1992 and in May 1994, for a Correctional
Office<2>r position at the Metropolitan Detention Center (MDC), Guaynabo,
Puerto Rico.
For the following reasons, the Commission reverses the agency's final
No Discrimination decision.
The record reveals that complainant filed a formal EEO complaint with
the agency claiming that the agency had discriminated against her as
referenced above. The complaint was accepted and investigated. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a recommended decision
finding discrimination.
In order to establish a prima facie case of sex discrimination,
Complainant must show: (1) she is a member of the protected group; (2) she
was eligible and applied for the position; (3) despite her qualifications,
she was not selected; and, (4) someone outside her protected group was
selected. See, Mc Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The AJ concluded that complainant established a prima facie case of sex
discrimination because the record showed that Complainant applied and
was found qualified for the Correctional Officer, GS-007-06 position
advertised under Vacancy Announcement WA-DJ-29-2-0089S1 and despite her
qualifications, the agency selected a male for the position.
On or about June 26, 1992, Complainant was interviewed by a panel
consisting of Human Resource Manager (HRM), a captain (CPT) and the
Associate Warden (AW). Each panel member completed a pre-employment
interview summary for each candidate, checking the statements which best
described the candidates' qualifications. The AW rated Complainant
"unacceptable", noting among other things that Complainant was
"condescending in her attitude", "over confident to a large degree" and
"believes she is intelligent - more intelligent than the Bureau of Prisons
(BOP)". Notwithstanding this assessment, the record shows that during the
hearing AW could not recall any specifics about Complainant's interview.
See Report of Investigation (hereinafter referred to as "ROI"), pp. 45-46.
The record also shows that the CPT crossed out his original rating of
"satisfactory" and rated Complainant "unacceptable". He also changed
his assessment in other instances. For example, he initially checked
that Complainant "established quick rapport with interviewers", then
changed his answer to read "very shy or lacking in self-confidence".<3>
The ROI shows that the HRM also indicated that Complainant was "poised and
congenial" but crossed out that assessment and indicated that Complainant
"demonstrated a condescending attitude". See ROI, pp. 41-42.
According to the ROI, HRM filed a SF-62, Agency Request to Pass Over
a Preference Eligible or Object to an Eligible (ROI, pp. 37-46).
The request stated, inter alia,
[Complainant] was interviewed by a panel of correctional specialists on
6-22-92 to determine if she possesses the qualities and characteristics
necessary to be an effective correctional worker. During the interview
she displayed a condescending attitude, unassertive nature, attitudes
towards correctional work that are in direct conflict with BOP policy.
She does not possess the qualities and characteristics to be an effective
correctional officer. We request her name be removed from consideration.
The AJ noted that on February 17, 1993, the MDC-Guaynabo was notified
that its documentation did not support the objection to Complainant.
The AJ further found that HRM testified that the MDC- Guaynabo decided
to exercise its option to nonselect Complainant rather than respond to
the objection. The AJ found that ten (10) male candidates were selected
while the agency offered no explanation for its failure to fill the thirty
(30) remaining vacancies.
With respect to the 1994 nonselection the AJ found that Complainant
once again applied and was deemed qualified for the Correctional
Officer, GS-007-05 position, advertised under Vacancy Announcement
No. WA-DJ-29-4-0067SO, in April 1994. She was interviewed by a panel
consisting of four members, including HRM. The AJ found that HRM
did not inform the remaining panel members that Complainant had been
interviewed in 1992. The record shows that although Complainant was rated
"unacceptable", when the MDC-Guaynabo was asked to provide a statement
in support of its objection to Complainant, HRM rescinded the objection
letter and proceeded to send a letter to Complainant informing her that
she had been nonselected for the position. See, ROI, p. 68.
The AJ found that the agency selected two male candidates and two female
candidates and filled the remaining vacancies with transfer ins from
other BOP locations.
The AJ then concluded that the agency failed to articulate legitimate,
nondiscriminatory reasons for its actions. Specifically, the AJ found
that the agency's failure to retain relevant promotion records, as well
as the proffer of incomplete and/or altered documentation, warranted an
adverse inference that information not proffered would have reflected
unfavorably on the agency. See AJ's Findings and Conclusions, p. 9;
Hicks v. Gates Rubber Co., 833 F. 2d 1406 (10th Cir. 1987). Moreover,
the AJ found that the testimony of HRM and CPT lacked credibility with
respect to their respective reasons for the change in the assessment
of Complainant's qualifications in the 1992 selection. The AJ also
found that the testimony of HRM lacked credibility with respect to the
procedures followed in both the 1992 and the 1994 selections.
Thereafter, the agency issued a final decision rejecting the AJ's
recommendation, and found no discrimination.
In the case at hand, the agency failed to submit the hearing transcript
with the record on appeal, despite repeated requests to do so. Therefore,
the Commission will infer from the agency's action that the information
contained in the transcript supports the AJ's credibility determinations.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ 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 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed 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
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the
AJ's decision. Having reviewed the record, the Commission finds that
the AJ properly exercised her discretion in imposing an adverse inference
on the agency and finding in complainant's favor as a result thereof.
Therefore, after a careful review of the record, and arguments and
evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final No Discrimination decision and REMANDS the
matter to the agency to take remedial actions in accordance with this
decision and the ORDER below.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
Offer Complainant placement in a Correctional Officer position, or a
substantially equivalent position, within thirty (30) days of the date on
which it receives this decision. For purposes of back pay and seniority,
Complainant's placement shall be retroactive to the date on which a male
applicant was selected in 1992, consistent with the agency's mandatory
age requirements;
The agency shall also determine the appropriate amount of retroactive
back pay with interest, effective November 1, 1992 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. 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."
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 backpay 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 MDC-Guaynabo, Puerto Rico 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 (M0300)
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); 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 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").
FOR THE COMMISSION:
March 24, 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:
___________ _________________________________
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 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 The position at issue is "Correctional Officer." The Commission notes,
however, that in its final decision, the agency inadvertently describes
the position as "Correctional Supervisor."
3 The AJ also found that the CPT's original interview summary was altered
to delete CPT's statement which purportedly read "have concerns, but
willing to employ or give a try".