0720120007
11-09-2012
Bartolome R. Mirabal, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Bartolome R. Mirabal,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0720120007
Hearing No. 480-2008-00289X
Agency No. ARIMKO07MAY02721
DECISION
Following its October 7, 2011, final order which partially rejected an EEOC Administrative Judge's (AJ) decision, the Agency filed a timely appeal, which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On November 14, 2011, Complainant filed a timely cross-appeal, which the Commission also accepts.
On appeal, the Agency requests that the Commission affirm its rejection of the AJ's order that imposed monetary sanctions against the Agency because of video teleconferencing (VTC) technical problems experienced during the hearing. Complainant requests that the Commission reverse the AJ's finding that Complainant failed to prove that he was subjected to unlawful discrimination. For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUES PRESENTED
The issues presented are: 1) whether the AJ properly found that the Agency should pay monetary sanctions because the Agency failed to properly maintain video teleconferencing (VTC) connections during the hearing; 2) whether the AJ properly found that the Agency should pay for Complainant's travel costs from Honduras to a hearing site in Virginia; and 3) whether Complainant failed to prove that he was subjected to unlawful discrimination when the Agency did not select him for an Interdisciplinary position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as Director of Public Works, GS-14, with the U.S. Army Garrison (USAG) at Humphreys Camp, South Korea. During the relevant time period, Complainant had over 15 years of experience in the Directorate of Public Works and had held positions such as Chief of Engineering; Resources Management Division (Business Operations and Integration Division); Chief of Master Planning at Major Support Command; Chief of Planning, Programming, and Construction at Major Command; and Director of Public Works at Camp Humphreys Garrison. Complainant has served as a higher-level supervisor over more 500 people and first-level supervisor of 20 to 25 people. Complainant has a Bachelor of Science Degree in Civil Engineering.
On March 14, 2007, the Agency advertised a GS-15 Director of Public Works (Interdisciplinary) position. Complainant applied and was deemed qualified for the position by the Agency. The Agency used two panels to make its selection, an interview panel and a resume panel. The resume panel consisted of four officials who rated and ranked applicants based on a point system in the areas of directorate of public work experience; garrison experience; supervisory and management experience, experience with the U.S. Army Corps of Engineers and major construction programs; leadership training; and education beyond a bachelor's degree. Complainant's first-line supervisor (S1) was the recommending official and was on the resume panel. The interview panel consisted of four officials, also including S1. Six applicants, including Complainant, were referred to the interview panel for an interview, although one of the applicants withdrew from consideration.
The interview panelists considered the applicants' interviews, work experience, and supervisory recommendations, and ranked the remaining five applicants. Complainant received 163.5 points out of a possible 200 points. After a discussion, the panelists agreed to recommend an applicant (non-Dominican/non-Hispanic) who received 174 points for the position, which Installation Management Command (IMCOM) approved effective August 6, 2007. The selectee had been Deputy Resident Engineer, Group Engineer, Deputy Chief of the Engineering Branch, Director of Public Works, Deputy Commander, and Deputy District Engineer. The selectee has a Bachelor of Science Degree in Chemistry and Master of Science Degree in Environmental and Civil Engineering. S1 and a Colonel (Colonel 2) had input in recommending applicants for the position, although IMCOM ultimately approved the selectee for the position.
On August 13, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of national origin (Hispanic, Dominican Republic) when, in May 2007, the Agency failed to select him for a GS-15 Interdisciplinary position at its facility at Camp Humphreys, Republic of Korea.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
The Hearing
Complainant timely requested a hearing, which the AJ held hearing on July 11 and 12, 2011, and August 1, 4, and 9, 2011. On July 11 and 12, and August 1 and 4, 2011, the hearing was conducted via VTC with the AJ present at the Agency's facility in El Segundo, California; the Agency's attorney present at a VTC site in the Republic of Korea (South Korea); Complainant and his attorney at a VTC site in Virginia and later in Honduras for Complainant; and witnesses in various other locations. Six witnesses testified, including Complainant.
In a March 20, 2008, Acknowledgment and Order, the AJ notified the Agency that failure to follow the orders of the AJ could result in sanctions. On May 26, 2011, in a Hearing and Scheduling Order, the Agency was further notified that the Agency was responsible for establishing and maintaining VTC connections for the hearing. On June 16, 2011, in a second hearing and Scheduling Order, the Agency was ordered to "insure that arrangements are made (1) which will allow the Administrative Judge to remain at the hearing site until approximately 9:00 p.m. (PDST), and (2) will insure that the Agency has the means to deal with any VTC technical difficulties that may arise at the hearing sites during the entire time that the hearing is in session." Additionally, the Order stated that hearing would convene at 1:00 p.m. on July 11, 2011.
Because of VTC connection problems, the hearing did not begin until 1:51 p.m. on July 11, 2011. At 5:45 p.m., the VTC connection with Complainant and his attorney at the Virginia VTC site was lost during Complainant's direct examination of a witness, but there was no information technology (IT) personnel present with Complainant to assist with the technological difficulties. At 6:54 p.m., the Agency acknowledged that it would not be able to reestablish the video feed of the Virginia VTC connection because no IT personnel were available at the Virginia hearing site. Therefore, the AJ adjourned the hearing with notice that it would be reconvened at noon on July 12, 2001. The AJ also instructed the Agency to undertake the following actions:
[T]ake whatever steps are necessary to ensure that, in tomorrow's hearing, any technical difficulties that occur in Virginia can be corrected, whether that means having an IT person at the location where [Complainant's attorney] is or at the second location for creating the bridge or chain, but whatever it is, the agency needs to make sure it does whatever needs to be done for the entire time that the hearing is going forward, [and] that is has the ability to quickly remedy any technical difficulties.
Hearing Transcript (HT), p. 125.
On July 12, 2001, further VTC problems led to the adjournment of the hearing at 2:15 p.m. The hearing was rescheduled for August 1, 2011, and on July 19, 2011, the AJ issued a Hearing and Scheduling Order that stated, in relevant part, the following:
The Agency is ordered to have personnel available at the hearing sites and/or "bridge" sites during the entire time that the hearing is in session, such that the Agency has the means to expeditiously address and resolve any VTC technical difficulties that may arise at the hearing and/or "bridge" sites. Further, the Agency is ordered to take whatever steps are necessary to insure that the VTC connection(s) can be established so that the hearing can convene promptly at the scheduled time. If there are any connection problems which delay convening the hearing at the scheduled time, the Agency shall be subject to monetary and/or other sanctions, upon proper notice and opportunity to respond. [Emphasis in original.]
On August 1, 20011, the hearing began at noon, but a VTC connection could not be established for a witness in Walla Walla, Washington during the hearing. The hearing continued at 12:39 p.m. with testimony from other witnesses. The Agency acknowledged that it had not tested the VTC connection with Walla Walla prior to noon on August 1, 2011.
The AJ's Decision
On August 31, 2011 the AJ issued a decision. As an initial matter, the AJ sanctioned the Agency for failing to comply with his order to have IT personnel available and to properly establish and maintain the VTC connections. The AJ concluded that the Agency must pay Complainant's attorney's fees for the additional time and travel costs incurred because of the delays. The AJ noted that Complainant sought attorney's fees at the rate of $350 per hour for 9.40 hours of his attorney's time, including 1.20 hours of round-trip travel time to the hearing, 4.90 hours of delayed hearing time, and 3.30 hours preparing motions for sanctions. Additionally, the AJ ordered the Agency to pay Complainant $776.70 for the cost of his travel from Honduras to Virginia for the first and second days of the hearing, not as a sanction, but because the Agency is responsible for Complainant's travel costs as an employee employed by the Agency at the time of the hearing. The AJ noted that the purpose of Complainant's travel was frustrated by the technical problems, and Complainant was only able to be present with his attorney for the first two of the four days of hearing.
The AJ also ruled on Complainant's motion which sought to sanction the Agency because it failed to retain and produce notes from the interviews for the Interdisciplinary position. In his decision, the AJ noted that it was undisputed that the Agency did not retain notes from the interviews of the five applicants for the position, in violation of 29 C.F.R. � 1602.14. The AJ further noted that one of the four interview panelist did not take notes, two panelists discarded their notes after the selection was made, and another retained his notes but was unable to locate them for the investigation and discovery. The AJ concluded that because members of the interview did not remember specific responses to interview questions for the most part, Complainant was prevented from effectively challenging the Agency's assertion that he performed poorly in the interview. However, the AJ further concluded that because it was apparent that Complainant's past performance was the primary reason why Complainant was not selected, and Complainant had the opportunity to examine and cross-examine witnesses and as to fully and effectively that reason, it would be "inappropriate to draw an adverse inference that would lead, by itself, to a judgment against the Agency." The AJ determined that the adverse inference drawn in this case is that if the Agency had retained its interview notes, they would have established that Complainant did not perform poorly during the interview and that his performance was comparable to the performance of the selectee.
Regarding the merits of Complainant's case, the AJ noted that at the hearing, Complainant testified that S1 joked about his Dominican origin on three occasions, including incidents wherein S1 referenced "the Dominican way to do things," stated that Complainant addressed a work issue "the Dominican way," and told Complainant he needed to "control that Latin temper of yours" when Complainant found out he had not been selected for the Interdisciplinary position. S1 testified that, on one or two occasions, he may have jokingly said, "I know what you're going to tell me it's - you know, it's the Latino way of doing things."
The AJ noted that S1 also testified that when Complainant was upset, Complainant would say, "You know I'm Hispanic, and I'm you know, a Latin lover, and I'm passionate, and I get excited about these things." The AJ noted that Complainant did not deny these assertions and an interview panelist (Colonel 1) testified that Complainant was passionate about his job and in the manner he expressed himself. S1 further testified that he later apologized to Complainant about his remarks because other employees indicated that Complainant was not happy about the remarks. The AJ found that, based on hearing testimony, S1 made comments to Complainant about Latin ways of doing things and Complainant's temper, but the statements were not made in an accusatory or derogatory manner and do not establish that S1 had animus against Complainant because of his national origin.
Further, the AJ noted that, based on S1's two-year professional observation of Complainant's performance, S1 credibly testified that he did not believe that Complainant could handle the increased duties and responsibilities of the GS-15 position and informed the interview panel that he was not comfortable recommending Complainant for the position because Complainant's supervisory performance in his GS-14 position did not demonstrate that he could properly supervise employees at the GS-15 level. The AJ noted that an interview panelist testified that he met with Complainant approximately six times to coach and mentor him about delays in completing tasks. The AJ further found that another interview panelist credibly testified that Complainant's greatest strength was in master planning, but Complainant had weaknesses as a public works director. The AJ noted that Colonel 1 testified that Complainant was unable to keep pace with the demands of his GS-14 position in light of all the transformation that was occurring at Camp Humphreys, and Complainant struggled to manage employees.
The AJ found that Complainant established a prima facie case of national origin discrimination, but the Agency articulated a legitimate, non-discriminatory reason for not selecting Complainant, specifically, his interview performance and previous work performance. The AJ further found that Complainant failed to establish that his qualifications were so plainly superior to the selectee's qualifications as to compel a finding of pretext. The AJ also determined that S1's view of Complainant's performance was based on Complainant's performance itself and not a "stereotypical image of Complainant as a hot-headed Dominican." He AJ noted that other interview panelists corroborated S1's assertion that Complainant had deficiencies in performing certain important duties and responsibilities in his GS-1 position.
The Final Agency Order
The Agency subsequently issued a final order in which it asserted that it could not implement the AJ's order to pay Complainant $3,330.88 in monetary sanctions because the Agency lacked legal authority to pay Complainant monetary sanctions without an express waiver of sovereign immunity that would authorize the payment of sanctions in administrative cases before the Commission. The final order further stated that it would pay Complainant $776.70 in hearing travel costs and "implement the portion of the EEOC AJ's decision that the Army has the authority to implement."
CONTENTIONS ON APPEAL
On appeal, the Agency contends that the Agency's finding of no discrimination should be affirmed. However, the Agency argues that the Department of Justice's Office of Legal Counsel has opined in a memorandum that the doctrine of sovereign immunity precludes EEOC AJs from imposing monetary sanctions against federal agencies for violations of an AJ's orders, and the Agency is bound by this opinion. The Agency recounts the Department of Justice's reasoning that Congress has not expressly waived sovereign immunity with respect to monetary sanctions for failure to comply with EEOC AJ's orders. Additionally, the Agency maintains that paying monetary sanctions without legal authority to do so places the Agency's senior officials in jeopardy of violating the Antideficiency Act, which imposes disciplinary action and criminal liability if appropriations are made beyond purposes proved by the law. The Agency also maintains that the Purpose Statute further precludes it from paying Complainant's attorney's fees because it states that "appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law."
The Agency asserts that the Government Accountability Office (GAO) has stated that the "longstanding rule is that the hiring of an attorney is a private matter between the attorney and the client, and absent express statutory authority, an agency is not authorized to pay an employee's" attorney's fees. The Agency maintains that paying attorney's fees not authorized by law would therefore violate the Purpose Statute. The Agency contends that GAO decisions consistently apply the principle that the use of appropriated funds for unauthorized or prohibited purposes in violation of the Purpose Act also violates the Antideficiency Act because zero funds are available for such purposes, and Agency officials must take care to avoid Antideficiency Act violations.
In response, Complainant argues that the AJ's finding that an adverse inference should be imposed against the Agency requires a finding of discrimination because the Agency failed to produce any interview notes for three of the five candidates interviewed, including Complainant.
STANDARD OF REVIEW
Pursuant to 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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Monetary Sanctions
The Agency contends that the doctrine of sovereign immunity precludes the Commission from imposing monetary sanctions against federal agencies for violations of AJ orders. However, the Commission possesses "the authority to issue sanctions in the administrative hearing process because it has been granted, through statute, the power to issue such rules and regulations that it deems necessary to enforce the prohibition on employment discrimination." Matheny v. Department of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); see 42 U.S.C. � 2000e-16(c); West v. Gibson, 527 U.S. 212 (1999) (finding that the Commission empowered to award compensatory damages to complainants in the administrative process).
In Matheny, the Commission affirmed an AJ's finding in favor of a complainant as a properly imposed sanction, where the agency failed to provide three investigative reports more than 15 months after the end of the regulatory 180-day investigative period. Therein, we determined that Section 717 of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination by federal agencies, provides for a waiver of the doctrine of sovereign immunity. Matheny, supra (citing 42 U.S.C. � 2000e-16(c)). To the extent that federal agencies are required to "comply with such rules, regulations, orders, and instructions" which are issued by the Commission, and which the Commission "deems necessary and appropriate to carry out its responsibilities" to enforce the prohibitions on unlawful employment discrimination, the Commission determined that delegating to its AJs the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy which effectuates the policies of the Commission. Matheny, supra (citing 42 U.S.C. � 2000e-16(b); see also Exec. Order No. 11,375, 32 Fed. Reg. 14,303 (1967); Exec. Order No. 11,478, 34 Fed. Reg. 12,985 (1969); and Exec. Order No. 12,067, 43 Fed. Reg. 28,967 (1978); West v. Gibson, 527 U.S. 212 (1999).
The Commission emphasizes that the Department of Justice recognized that the Commission has authority to enforce its orders: "And arguably, EEOC may have some inherent power to impose some type of sanctions designed to maintain the integrity of its proceedings even against federal agencies. One could infer this from the fact that Congress is presumed to have made its statutory scheme effective." Matheny, supra. (citing Dep't of Justice Memorandum at 8).
The Commission has specifically deemed monetary sanctions, to include attorney's fees and costs, "necessary and appropriate to carry out its responsibilities." See 42 U.S.C. � 2000e-16(c). As expressed in 29 C.F.R. Pt. 1614, EEO MD-110, and Commission precedent, the Commission has long utilized monetary sanctions as a tool to ensure full compliance with AJ's orders. 29 C.F.R. � 1614.109(f)(3); EEO MD-110, Chap. 7, Sec. III(D), n. 6 and Chap. 11, Sect. VIII(C); Stull v. Dep't of Justice, EEOC Appeal No. 01941582 (1995); Comer v. Federal Deposit Insurance Corp., EEOC Request No. 05940649 (May 31, 1996). Indeed, awarding attorney's fees and costs as a sanction ensures the integrity and efficiency of the administrative process. No party has the opportunity to pick and choose which order by an AJ it deems worthy of compliance.
The Commission has exercised its inherent authority to enforce its Part 1614 Regulations by affording AJs broad authority to conduct hearings, and thereby impose monetary sanctions. 29 C.F.R. � 1614.109 et seq.; EEO MD-110, Chap. 7, Sec. III(D). This broad authority includes the powers of AJs to conduct a hearing and develop the administrative record, which includes overseeing discovery; ordering supplemental investigation; and holding a hearing. 29 C.F.R. � 1614.109 et seq.; EEO MD-110, Chap. 7, Sec. III(D)(10) and (13); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000); see also Matheny, supra. The parties are required to abide by the orders and requests of the AJ to provide the investigative file, documents, records, comparative data, statistics, affidavits, and attendance of witnesses. EEO MD-110, Chap. 7, Sec. III. Noncompliance, without good cause shown, can result in sanctions against the non-complying party. 29 C.F.R. � 1614.109(f)(3); see also EEO MD-110, Chap. 7, Sec. III(D), fn. 6 and Chap. 11, Sec. VIII(C); see Rountree, supra; DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000). Where a party refuses to comply, an AJ may:
1. draw an adverse inference in favor of the non-complying party;
2. consider the missing information to be favorable to the non-complying party;
3. provide a summary disposition in favor of the non-complying party on some or all of the issues without a hearing;
4. exclude other evidence offered by the offending party;
5. take other action deemed appropriate, e.g., order payment of attorney's fees and costs and expenses by the non-complying party.
Id.
The Commission notes that an AJ has the authority to impose attorney's fees and costs to ensure that parties obey discovery or other orders. EEO MD-110, Chap. 11, Sec. VIII(C), citing, 29 � 1614.109(f)(3)(v). In Stull v. Department of Justice, the Commission ruled that a complainant may be awarded interim attorney's fees as a sanction for failure to produce records requested during discovery, even where he is unsuccessful on the ultimate issue of discrimination. Stull, supra.; Shine v. U.S. Postal Serv., EEOC Appeal No. 01972201 (Dec. 12, 1998). Similarly, the Commission awarded costs in Comer, where the agency acted in bad faith in failing to appear for properly scheduled depositions. Comer, supra.; see also Fitch v. Dep't of Navy, EEOC Appeal No. 01A03071 (Aug. 15, 2002). Moreover, the Commission has consistently upheld an award of monetary sanctions for various types of egregious conduct by agencies. For example, in Johnson v. Department of Navy, the Commission imposed sanctions where the agency failed to appear for prehearing conference or submit preheating statement in timely fashion. EEOC Appeal No. 07A20058 (Feb. 5, 2002). Similarly, in Graham v. Department of Transportation, we imposed sanctions where the EEO investigator reported that she had extreme difficulty interviewing key officials and that officials attempted to "stonewall" the complaint process. EEOC Appeal No. 01986978 (Aug. 17, 2001).
Finally, AJs possess the authority to order a party to pay attorney's fees and costs to prevent a party's misconduct in the future, and they must tailor their orders to each situation to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Barbour v. U.S. Postal Serv., EEOC Appeal 07A30133 (June 16, 2005); Harris v. U.S. Postal Serv., EEOC Appeal No. 07A30039 (Oct. 5, 2005); Rountree, supra; Hale, supra. By contrast, imposition of excessive attorney's fees and costs, where a lesser sanction would be more appropriate, may constitute an abuse of discretion. Id.; Cole v. Dep't of the Navy, EEOC Appeal No. 01A42577 (Feb. 16, 2005); Timerman v. U.S. Postal Serv., EEOC Appeal No. 07A20094 (Feb. 3, 2004).
In this case, the AJ issued an Acknowledgment and Order that notified the Agency that failure to follow the orders of the AJ could result in sanctions. In a Hearing and Scheduling Order, the Agency was further notified that the Agency was responsible for establishing and maintaining VTC connections for the July 11, 2011, hearing. In a second hearing and Scheduling Order, the Agency was ordered to "insure that arrangements are made (1) which will allow the Administrative Judge to remain at the hearing site until approximately 9:00 p.m. (PDST), and (2) will insure that the Agency has the means to deal with any VTC technical difficulties that may arise at the hearing sites during the entire time that the hearing is in session." On July 11, 2011, the hearing was unable to proceed because of technical problems with VTC, and the Agency failed to remedy the problem.
Consequently, the AJ adjourned the hearing, rescheduled the hearing for July 12, 2011, and ordered the Agency to take whatever steps were necessary to ensure that any technical difficulties that occur at the Virginia VTC site could be corrected. Despite the AJ's order, the Agency again failed to remedy Virginia VTC technical problems during the July 12, 2011, hearing. Finally, when the AJ rescheduled the hearing for August 1, 2011, because of the unresolved VTC problems, he specifically ordered the Agency to have personnel available at the hearing sites so that the Agency could expeditiously resolve any VTC technical difficulties that could arise at the hearing sites. Yet, when more problems arose with the VTC connection during the August 1, 2011, hearing, the Agency again failed to resolve the technical problem, which resulted in the inability of the AJ to hear testimony from a witness at that time.
The Commission finds that the AJ properly exercised his discretion, and acted consistent with Commission regulations, EEO MD-110, and Commission precedent in ordering the Agency to pay attorney's fees incurred in connection with the delays in the hearing. See Waller v. Dep't of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), request for recon. denied, EEOC Request No. 0520070689 (Feb. 26, 2009). Moreover, the AJ had appropriately warned the Agency that failure to comply with his orders regarding the maintenance of the VTC connection could result in monetary sanctions. Nonetheless, the Agency refused to adequately respond to VTC technical difficulties during the hearing on three occasions.
Therefore, the Commission finds that the AJ appropriately tailored the sanctions in the present case, applied the least sanction necessary to respond to the Agency's failure to show good cause for its actions, and equitably remedied Complainant. The Commission further finds that the AJ's decision to impose sanctions was not an abuse of discretion. The record reflects that because of the Agency's failure to properly maintain a VTC connection during the hearing, Complainant incurred $3,380.88 in attorney's fees.
Adverse Inference
The AJ drew an adverse inference against the Agency for not retaining interview notes from the selection process. However, the AJ did not find that this inference demands a finding that the Agency discriminated against Complainant. Instead, the AJ drew the adverse inference that the interview notes would have shown that Complainant did not perform poorly during the interview.
Complainant maintains that the AJ should have drawn an adverse inference that resulted in a finding that he was not selected because of his national origin. However, we note that all four members of the interview panel testified at the hearing. In addition, some panel members asserted that they based their selection upon their observations of the selectee's prior work experience, and that interviews were not the sole basis for the Agency's selection. See Bray v. Dep't of Agriculture, EEOC Appeal No. 0120082539 (Nov. 14, 2008). The AJ clearly recognized that the Agency should have preserved the notes and applied an adverse inference appropriately tailored to the Agency's failure, but the AJ found that other evidence presented at the hearing was sufficient to show that Complainant was not selected for non-discriminatory reasons. See Vraniak v. U.S. Postal Serv., EEOC Appeal No. 0120060906 (Nov. 26, 2007), request for recon. denied, EEOC Request No. 0520080220 (Jan. 31, 2008). Thus, we do not find that the AJ abused his discretion by not drawing an adverse inference with respect to the Agency's failure to produce the missing interview notes.
Non-Selection
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of disparate treatment, Complainant must show that (1) he is a member of a protected class; (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) he was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (Apr. 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (Jan. 9, 1998); Trejo v. Social Secur. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 200
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the 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. 509 U.S. 502, 519 (1993).
In this case, Complainant applied for and was deemed qualified for a GS-15 Interdisciplinary position. A non-Dominican applicant was selected for the position. Therefore, Complainant established a prima facie case of national origin discrimination.
Nevertheless, as determined by the AJ, the Agency provided legitimate, non-discriminatory reasons for selecting Complainant. Specifically, the Agency stated that Complainant was not selected because Complainant's supervisory performance in his GS-14 position did not demonstrate that he could properly supervise employees at the GS-15 level. Further, we concur with the AJ's finding that Complainant's qualifications were not plainly superior to the selectee's qualifications. In so finding, we note that the selectee had been Deputy Resident Engineer, Group Engineer, Deputy Chief of the Engineering Branch, Director of Public Works, Deputy Commander, and Deputy District Engineer. Moreover, the selectee has a Bachelor of Science Degree in Chemistry and Master of Science Degree in Environmental and Civil Engineering.
Further, an employer, absent discriminatory animus, has the option to choose from among applicants who have different, but equally desirable, qualifications. See Canhan v. Oberlin College, 56 F. 2d 1057, 1061 (6th Cir. 1981). Finally, while we acknowledge that we are somewhat troubled by S1's stereotypical comments about Complainant's "Dominican way" and "Latin temper," the record reflects that Complainant also engaged in jocular banter with S1 about similar stereotypes. In this particular context, we cannot find that S1's comments reflect that he did not recommend Complainant for the Interdisciplinary position because of animus against Complainant's national origin. Consequently, we find that substantial evidence supports the AJ's finding that Complainant failed to show the Agency subjected him to national origin discrimination.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final order's finding of no discrimination. We REVERSE the final order's rejection of the AJ's order to pay Complainant attorney's fees.
ORDER (E0610)
The Agency is ordered to undertake the following actions:
Within thirty (30) calendar days, the Agency shall pay Complainant $3,330.88 in attorney's fees and costs.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (T0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
November 9, 2012
Date
2
0720120007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720120007