01A11841
02-27-2003
Jesus G. De La Rocha, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Bureau of Prisons), Agency.
Jesus G. De La Rocha v. Department of Justice
01A11841
February 27, 2003
.
Jesus G. De La Rocha,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Bureau of Prisons),
Agency.
Appeal No. 01A11841
Agency Nos. P-97-9259 and P-96-9001
Hearing No. 340-98-3076X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that, during the relevant period, complainant was
employed as a WS-12, General Foreman at the agency's Federal Correctional
Institution (FCI) facility in Terminal Island, California. On or about
March 18, 1996, the agency issued vacancy announcement number 96-N-14 for
the position of GS-12/13, Metal Factory Manager. Complainant applied and
was considered to be one of two qualified applicants for the position.
The record reflects that complainant was non-selected. The selectee (CW1:
African American, no known prior protected activity) became complainant's
supervisor. Believing that he had been discriminated against, complainant
filed a formal complaint on October 7, 1996, alleging that the agency
discriminated against him on the bases of race (Hispanic), national origin
(Mexican-American), and reprisal for his prior EEO activity when:
he was non-selected for the Metals Factory Manager position advertised
under Vacancy Announcement 96-N-14; and,
the agency's use of the vouchering system resulted in the
under-representation of Hispanics in management.
The record also reveals that, on July 10, 1997, CW1 rated complainant's
performance. In contrast to his most recent quarterly performance
evaluation in April 1997, complainant's ratings were downgraded from
�Exceeds� in four out of six elements. Believing that he had been
discriminated against, complainant filed a formal EEO complaint on
September 25, 1997, alleging that CW1 had discriminated against him
on the bases of race (Hispanic), national origin (Mexican-American),
and reprisal for prior EEO activity when in July 1997 he received three
�Fully Successful� and one �Minimally Successful� entries on his quarterly
performance log.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant established a prima facie case of
race and/or national origin. Specifically, the AJ found that:(1)
complainant is a member of a protected group because he is Hispanic;
(2) he applied, and was qualified, for a position for which the agency
was seeking applicants; (3) despite his qualifications, complainant was
not selected for the position; and, (4) the agency continued to seek or
actually promoted a similarly qualified person who was not a member of
complainant's protected group(s).
The AJ also concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. In particular, the AJ found
that CW1 had more diverse experience in the factory, had a college degree,
and was proficient on the factory's computerized systems, CYMIX. The AJ
also noted that CW1 did better as acting factory manager and had better
people skills, in contrast to complainant.
The AJ further concluded that complainant did not establish that more
likely than not, the agency's articulated reasons were a pretext to mask
discriminatory animus and/or retaliatory motive. Specifically, the AJ
found that complainant failed to show that he was significantly more
qualified than CW1 with regard to the appropriate job-related criteria.
The AJ also found, among other things, that the agency's use of vouchering
for promotions, is based on a goal of promoting all minorities and not
just Hispanics. In the instant case, the AJ noted that because CW1
was an African-American, the objective was met. The AJ also found that
complainant did not present a valid statistical analysis showing that
factors other than race and national origin did not actually cause any
recognized disparity.
The agency failed to issue a final order within 40 days of receipt of
the AJ's decision so, the decision of the AJ becomes the final action
of the agency. See 29 C.F.R. � 1614.109(i). On appeal, complainant
contends, among other things, that the AJ erred when she found that CW1
was better qualified for the position. In particular, complainant asserts
that the agency's use of subjective criteria and selection material not
required by the vacancy announcement, supports a finding that the reasons
were a pretext for discriminatory animus and/or retaliatory motive.
Complainant also contends, that the AJ erred when she found that CW1's
proficiency on the factory's computerized system, CYMIX, was a legitimate,
nondiscriminatory reason because the selecting official did not consider
knowledge of the CYMIX system as a distinction between the two applicants.
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.
In general, to establish a prima facie case of disparate impact,
complainant must show that an agency practice or policy, while neutral
on its face, disproportionately impacted members of the protected
class through presentation of statistical evidence that demonstrates a
statistical disparity that is linked to the challenged practice or policy.
Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988) (complainant
must present �statistical evidence of a kind and degree sufficient
to show that the practice in question has caused the exclusion�).
Specifically, complainant must: (1) identify the specific practice or
practices challenged; (2) show statistical disparities; and (3) show
that the disparity is linked to the challenged practice or policy. Id.
The burden is on complainant to show that the �facially neutral standard
in question affects those individuals [within the protected group]
in a significantly discriminatory pattern.� Dothard v. Rawlinson,
433 U.S. 321, 329 (1977); see also Kimble v. Department of Commerce,
EEOC Request No. 05950838 (June 20, 1997).
Although an agency has �the burden of showing that any given requirement
must have a manifest relationship to the employment in question,� such
a formulation should not be interpreted as implying that the ultimate
burden of proof can be shifted to the agency. Griggs v. Duke Power,
401 U.S. 424, 432 (1971). On the contrary, the ultimate burden of
proving that discrimination against a protected group has been caused by
a specific employment practice remains with complainant at all times.
Wastson, 487 U.S. at 997. Thus, when complainant has made out a prima
facie case of disparate impact, and when the agency has met its burden of
producing evidence that its employment practices are based on legitimate
business reasons, complainant must �show that other tests or selection
devices, without a similarly undesirable racial effect, would also serve
the employer's legitimate interest[s] . . .� Albermarle Paper Co.,
v. Moody, 422 U.S. 405, 425 (1975). Practices or procedures, neutral
on their face and even neutral in terms of intent cannot be maintained
if they operate to freeze the status quo of discriminatory employment
practices. See Watson, 487 U.S. at 997-98.
After a careful review of the record, we find that the AJ correctly
concluded that the agency did not discriminate against complainant on
the bases of race, national origin and/or reprisal. In finding no
discrimination, the AJ relied on the record evidence regarding the
fact that complainant's qualifications were not observably superior
to those of CW1. See Bauer v. Bailar, 647 F.2d 1037 (10th Cir. 1981).
In point of fact, the record shows that the agency selected CW1 because
he had a college degree and excellent planning and organizational skills.
The record also reflects that CW1's knowledge of the CYMIX system far
exceeded complainant's. Furthermore, the record reflects that CW1 got
along better with the staff and the inmates. The Commission notes that
the agency had to make a selection from two highly qualified candidates
and decided that CW1 was the best person for the position.
Based on the foregoing, we find that the agency has articulated
legitimate, nondiscriminatory reasons for complainant's non-selection.
The burden now shifts to complainant to show that the proffered reasons
were a pretext for discriminatory animus and/or retaliatory motive.
The Commission finds that complainant has failed to present sufficient
evidence to show that the reasons articulated by the agency were a
pretext for discriminatory animus and/or retaliatory motive.
In regard to complainant's disparate impact claim, the Commission
concludes that complainant failed to establish a prima facie case.
Specifically, the Commission finds that, other than mere assertions,
complainant failed to produce any statistical evidence that tended to
show that the agency's vouchering system has a disparate impact upon
Hispanics and their representation in upper management.
Although the AJ did not address complainant's performance evaluation
claim in her decision, the Commission will exercise its discretion
and reach a conclusion based on a thorough analysis of the record
evidence. The Commission concludes that the agency articulated
legitimate, nondiscriminatory reasons for its actions. In particular,
the Commission finds that the Associate Warden (AW1: Caucasian, no prior
EEO activity) testified that complainant's lowered ratings were based
on a decline in performance. The record reflects that complainant was
responsible for re-works and repairs and they had either fallen off
or were delinquent in being returned to the buyers. In addition, CW1
noted that complainant's attitude was poor and he ignored directives
and orders during the subject rating period. CW1 and AW1 testified
that complainant assigned subordinates in his absence after he was
instructed not to do so. The Commission also finds that complainant
failed to establish that the reasons articulated by the agency were a
pretext for discriminatory motive and/or retaliatory animus.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision referenced the appropriate regulations, policies,
and laws. We note that complainant failed to present evidence that any
of the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
race and/or national origin. We discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record, including
complainant's contentions on appeal, and arguments and evidence not
specifically addressed in this decision, we AFFIRM the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 27, 2003
__________________
Date