0720060072
04-25-2007
Pierre Sampedro, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Pierre Sampedro,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07200600721
Hearing No. 15-2004-00013x
Agency No. 2001-0672-2003100632
DECISION
The agency filed an appeal in which it requests that the Commission affirm
its rejection of part of the relief ordered by an EEOC Administrative
Judge (AJ), as a result of the AJ's finding of discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a GS-5 Medical Clerk in the agency's San Juan, Puerto Rico facility.
Complainant filed two EEO complaints which were consolidated for
processing. In his first complaint, complainant alleged that he was
subjected to discrimination on the bases of sex and disability when:
1. On October 9, 2002, complainant was found not qualified for
the position of Program Support Assistant, GS-303-6, under Vacancy
Announcement Number 2002-69.
In a second EEO complaint, complainant alleged that he was subjected to
retaliation for prior protected EEO activity when:
2. On December 1, 2004, complainant was notified he was found not
qualified for the position of Program Support Clerk, GS-303-5, Vacancy
Announcement Number 2004-130.
An AJ held a hearing on the complaint on August 15, 16, 29, 2005, and
issued a decision on May 31, 2006. The AJ found complainant failed
to establish that he was a qualified individual with a disability.
The AJ noted that complainant had a neuropsychiatric condition and a 50%
service connected disability; however, the AJ found that this alone was
insufficient to warrant a finding complainant was disabled. The AJ noted
that complainant testified himself that he does not consider himself to
be disabled. The AJ found that complainant does not have an impairment
that affects a major life activity
The AJ found complainant established a prima facie case of discrimination
based on sex. The AJ noted complainant is male, applied for the positions
of Program Support Assistant, GS-303-6, and for the position of Program
Support Clerk, GS-303-5, and was not selected for the positions and in
both instances the individuals selected were females. The AJ noted
that the agency articulated that complainant was not qualified for
the positions since he was not bilingual. The AJ recognized that the
agency's articulated, non-discriminatory reason for its actions also
goes to the crux of complainant's prima facie case.
The AJ found that the evaluation of the record and the testimony of
witnesses at the hearing, indicated that the agency's stated reason for
not qualifying complainant was not credible and therefore was pretext
for discrimination on the basis of sex. The AJ found no doubt that
complainant qualified for both positions and that he was fully bilingual
under the standards established by the agency for the positions. The AJ
found that the evidence indicates that the agency, specifically Human
Resources Specialist A, went out of her way to find reasons to disqualify
complainant while at the same time going out of her way to find reasons
to qualify the females for the position. The AJ noted that complainant's
Official Personnel File (OPF) reveals that he lived in the continental
United States, had a High School Diploma from the state of New Jersey,
and had numerous training courses conducted by the agency in English
which the AJ found established without a doubt that complainant was
competent in English.
The AJ noted that Human Resources Specialist A presented conflicting
testimony which was indicative that she was not being truthful and
trying to mask her discriminatory actions. With regard to the first
vacancy announcement, the AJ noted that Selectee 1 was initially
found to not satisfy the specialized experience requirement; however,
when Selectee 1 requested reconsideration, the letter detailing her
private sector experience was admitted without verification by Human
Resources Specialist A. With regard to the second vacancy announcement,
the AJ noted that Human Resources Specialist A went out of her way to
qualify Selectee 2 for the position when Selectee 2's qualifications
were questionable. Specifically, the AJ noted that Selectee 2, a GS-3,
was found qualified and was credited with the necessary year at the GS-4
level with only 11 months of service at the GS-3 level. The AJ found
Human Resources Specialist A's actions became more evident when comparing
complainant's English skills with those of Selectee 2. The AJ noted that
at the hearing it became clear that Selectee 2's "English was limited."
The AJ found the evidence establishes that all the females that qualified
in this case received better treatment than complainant, supporting the
conclusion that the agency's actions were pretext for sex discrimination.
Additionally, the AJ found complainant established reprisal discrimination
as to his second complaint. The AJ found complainant established a
prima facie case of reprisal in that he suffered an adverse action
at the hands of the agency and the management officials involved not
only knew of his prior EEO activity but were the management officials
involved in the EEO complaint. The AJ found Human Resources Specialist
A's actions with regard to the second vacancy demonstrate her intent to
not only discriminate against complainant on the basis of sex, but to
retaliate against him for filing an EEO complaint over the first vacancy
announcement. Thus, the AJ found complainant proved by a preponderance
of evidence that the agency discriminated against him on the bases of
reprisal and sex.
The AJ found that although complainant demonstrated that he was qualified
with regard to the first vacancy, he did not establish that he would have
been selected for that position since he cannot show that he is plainly
superior to Selectee 1. However, with regard to the second vacancy, the
AJ found that complainant showed he was clearly superior to Selectee 2.
Specifically, the AJ noted Selectee 2, a GS-3, did not have complainant's
experience as a Medical Clerk, GS-5. The AJ recognized that in her
position as Program Clerk, Selectee 2 served as secretary substitute and
was given everything already written by her supervisor and just had to
type the information. Moreover, the AJ found that Selectee 2's English
proficiency, under the standards for this position, should not have
qualified her for the position. Therefore, the AJ found that based on
the importance on the bilingual proficiency, Selectee 2's grade level,
and the work Selectee 2 performed, complainant's qualifications were
plainly superior to those of Selectee 2 and as such he should have been
the selectee for the position of Program Support Clerk, GS-303-5.
Thus, the AJ found that complainant proved discrimination on the basis
of sex in claim 1 and reprisal in claim 2.
As relief for the harm sustained by complainant, the AJ awarded payment
of non-pecuniary, compensatory damages in the amount of $10,000.00.
The AJ also ordered the agency to take the following actions: (1)
offer complainant a similar position to the one he applied for in the
agency at the same location where he would have been assigned; (2) find
complainant is bilingual (or fully bilingual) and that he fulfills this
qualification for all the positions for which he applies in the future
where the requirements were similar to or the same as the positions for
which he applied in this case; (3) when complainant applies for future
positions, his ranking and the complete application process will be done
at a different Human Resources Office not in San Juan, Puerto Rico;
(4) provide EEO training for all the employees and managers at the
agency's San Juan Human Resources Office and for those managers in
the Nursing Department who were in any way involved in this case; (5)
conduct a thorough investigation as to the operations, specifically
the policies and practices for the qualifications and selection of
individuals for promotion, at the Human Resources Office in San Juan.
This investigation should be conducted by Managers who do not report in
any way to the San Juan Facility of the agency in Puerto Rico. Finally,
the AJ ordered the agency to post a finding of discrimination notice in
its San Juan facility. The AJ denied attorney's fees because complainant
was not represented by an attorney. The AJ denied costs to complainant
because no documentation was submitted supporting such an award.
On appeal, the agency argues that the AJ abused her discretion in ordering
remedial relief provision (3), requiring that all of complainant's
future applications for employment be processed by a different Human
Resources Office outside of San Juan, Puerto Rico, and provision (5)
requiring the agency conduct a thorough investigation of the entire San
Juan, Puerto Rico Human Resources Office regarding the qualification and
selection of individuals for promotion. The agency does not challenge
the AJ's finding of sex and reprisal discrimination. Moreover, aside
from provisions (3) and (5), the agency does not challenge the remaining
remedial relief ordered by the AJ.
On appeal, the agency notes that the AJ narrowed the discriminating
officials to one or possibly two particular employees, Human Resources
Specialist A and possibly the Selecting Official. With regard to
provision (3), the agency argues that requiring all applications
submitted by the complainant to be processed at a different facility
would not cure or correct the discriminatory problem which has been
uncovered in the instant case. The agency argues this provision would
cause untold costs and hardships on managers, interviewers, applicants,
and others because of the complications which would be encountered due
to the geographic isolation of San Juan.
With regard to provision (5), the agency states that the AJ improperly
ordered an investigation of the entire San Juan Human Resources Office,
when only Human Resources Specialist A, out of an office of eight
Human Resource Specialist and one Chief of Human Resources, committed
wrongdoing. Further, the agency notes that wrongdoing on the part
of Human Resources Specialist A, a non-supervisory employee, should
not subject the entire office to an investigation. The agency states
that the appropriate corrective action would have been to order Human
Resources Specialist A undergo training and that the agency consider
taking disciplinary action against her.
We note that complainant does not challenge the AJ's finding of no
discrimination with regard to his claim of disability discrimination.
Further, complainant does not claim he is entitled to greater or different
relief than awarded by the AJ in her decision and does not respond to
the agency's position that remedial provisions (3) and (5) of the AJ's
decision constituted an abuse of discretion by the AJ.
ANALYSIS AND FINDINGS
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.
As an initial matter, we find that as neither party disputes the AJ's
finding of discrimination, we hereby AFFIRM that determination herein.2
Upon review, we find the agency properly determined that the AJ
abused her discretion by ordering under remedial provision (3) that
when complainant applies for future positions, his ranking and the
completion process will be done at a different Human Resources Office
not in San Juan, Puerto Rico. We find that the payment of damages, the
agency's offer of a similar position where complainant would have been
assigned, requiring a finding that complainant is bilingual for future
applications, the posting of a notice of discrimination, EEO training, and
the consideration of disciplinary action against responsible management
officials (a provision we add to the remedy) constitutes corrective action
in this case necessary to remedy the finding of discrimination. Further,
considering disciplinary action against Human Resources Specialist A
and other relevant responsible management officials will ensure that
violations of the law similar to those found do not recur.
Further, we find that remedial provision (5), requiring the agency to
conduct a thorough investigation by managers outside of the San Juan
facility as to the operations, specifically the policies and practices
for the qualifications and selection of individual for promotion, at the
Human Resources Office in San Juan is also beyond the AJ's discretion in
this case. Not only is this provision vague in not providing instruction
to the agency as to what occurs once such an investigation is done, we
note that an investigation has been done through the means of the EEO
investigation and the EEOC hearing, which is considered an extension of
the investigation process. Clearly, a thorough and unbiased investigation
was conducted, as evidence by the development of the record and the
resulting finding of discrimination by the agency. While we find that
remedial provisions (3) and (5) constituted an abuse of discretion by
the AJ, we remind the agency that it is prohibited from retaliating
against complainant in retaliation for his protected EEO activity.
CONCLUSION
Accordingly, the agency's finding of discrimination is AFFIRMED and
the agency shall comply with the Order herein (which modifies the AJ's
order).
ORDER
To the extent it has not already done so, the agency shall take the
following actions:
(1) Within 30 days of the date this decision becomes final, the agency
shall pay complainant $10,000.00 in non-pecuniary, compensatory damages;
(2) Within 30 days of the date this decision becomes final, the agency
shall offer complainant a similar position to the one he applied for in
the agency at the same location where he would have been assigned;
(3) When applicable, the agency shall find complainant is bilingual
(or fully bilingual) and that he fulfills this qualification for all
the positions for which he applies in the future where the requirements
were similar to or the same as the positions for which he applied in
this case;
(4) Within 180 days of the date this decision becomes final, the agency
shall provide EEO training for all the employees and managers at the
agency's San Juan Human Resources Office;
(5) Within 30 days of the date this decision becomes final, the agency
shall consider taking disciplinary action against Human Resources
Specialist A and against any other individuals, still working for
the agency, who were responsible for determining complainant was not
qualified for the positions at issue in this case. If the agency decides
to take disciplinary action, it shall identify in a compliance report the
action taken. If the agency decides not to take disciplinary action, it
shall set forth in its compliance report the reason(s) for its decision
not to impose discipline.
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 documentation indicating that the
corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its San Juan, 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (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 (T0900)
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 (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
April 25, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Also, we do not address the basis of disability discrimination as
complainant does not appeal the AJ's finding of no discrimination
concerning this basis.
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0720060072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036