Armando Rivera-Benitez, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 9, 1999
01985823 (E.E.O.C. Apr. 9, 1999)

01985823

04-09-1999

Armando Rivera-Benitez, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Armando Rivera-Benitez, )

Appellant, )

)

v. ) Appeal No. 01985823

) Agency No. BODVFO9608G0200

Louis Caldera, ) Hearing No. 160-97-8654X

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

On July 22, 1998, Armando Rivera-Benitez (appellant) timely appealed the

final decision of the Department of the Army (agency), dated June 24,

1998, which concluded that he had not been discriminated against in

violation of the Age Discrimination in Employment Act (ADEA) of 1967,

as amended, 29 U.S.C. �621 et seq. In his complaint, appellant had

alleged that he had been discriminated against on the basis of his age

(67; DOB: 03-08-29) when, in April 1996, he was not selected for the

position of Transportation Assistant, GS-6, with the Transportation

Division, Department of Logistics, Fort Buchanan, Puerto Rico, advertised

under Vacancy Announcement No. 07-17-95PR. This appeal is accepted in

accordance with the provisions of EEOC Order No. 960.001.

The evidence of record establishes that appellant had retired from

the agency in September 1993, as a Shipment Clerk, GS-5, with the

Transportation Division at Fort Buchanan. He became eligible for

reemployment after one year. Appellant testified that after his

retirement he would periodically visit his old office. He said that on

one occasion his offer to perform some volunteer work for the office was

turned down by his former first-level supervisor, who said that management

now wanted "young blood" in the unit. In June 1995, the agency issued

a vacancy announcement for the newly created position of Transportation

Assistant, GS-6. Appellant applied for the position and was among

the ten "best qualified" candidates referred for consideration by the

selecting officials.<1> However, he was not selected for the position.

The selecting official testified that the selectee (age 42; DOB: 08-18-53)

was chosen, in part, based on her experience and knowledge in computer

systems and programs as the agency had recently modernized its operations

to include a computerized system. The selecting officials stated that

appellant was their second choice. Appellant, on the other hand, contended

that he was the better qualified candidate because the new position of

Transportation Assistant essentially incorporated the same duties as

he had performed in the position he held with the agency prior to his

retirement, where he had received exceptional performance appraisals.

Appellant contended that management's stated need for office automation

skills was a "bluff" as he could quickly learn to use the computer

because he was so familiar with the substantive work of the position.

He believed he was not selected because of management's desire to have

younger employees in the unit.

On September 9, 1996, appellant filed a formal EEO complaint with

the agency, alleging that the agency had discriminated against him

as referenced above. The agency accepted the complaint and conducted

an investigation. At the conclusion of the investigation, appellant

requested an administrative hearing before an Equal Employment Opportunity

Commission (EEOC) administrative judge (AJ).

On May 6, 1998, following a hearing at which four witnesses testified, the

AJ issued a decision concluding appellant had proven, by a preponderance

of the evidence, that he had been discriminated against on the basis of

his age when he was not selected for the position in question. In reaching

this conclusion, the AJ found that the agency's proffered explanation for

its selection decision was a pretext to mask age discrimination. The AJ

concluded that the evidence established that appellant's qualifications

for the position in question were far superior to those of the selectee,

with respect to both his work experience and education. Although the

selectee had more computer experience than appellant, the AJ found that

this alone did not outweigh appellant's superior credentials, especially

because the selectee had no experience in the computer system ("TOPS")

used in the position. These facts, in combination with the age-related

remark made by one of the selecting officials, and that same selecting

official's admission that appellant's future retirement plans could have

been a factor in the decision not to select him, led the AJ to conclude

that age discrimination occurred in this matter.

On June 24, 1998, the agency issued its final decision, rejecting the

AJ's recommended finding of age discrimination. It is from this decision

that appellant now appeals.

After a careful review of the record in its entirety, the Commission

finds that the AJ's recommended decision sets forth the relevant facts

and properly analyzes the appropriate regulations, policies and laws.

Based on the evidence of record, the Commission discerns no basis to

disturb the AJ's finding of age discrimination. The Commission notes

that nothing proffered by agency in its final decision or on appeal

differs significantly from the arguments raised before, and given full

consideration by, the AJ.

Accordingly, it is the decision of the Equal Employment Opportunity

Commission to REVERSE the agency's final decision which rejected the

AJ's finding of age discrimination. In order to remedy appellant for its

discriminatory actions, the agency shall comply with the following Order.

ORDER

The agency is ORDERED to take the following remedial action:

(A) Within thirty (30) calendar days of the date this decision becomes

final, the agency shall offer to place appellant in the position in

question, or a substantially equivalent position, retroactive to the

date the selectee assumed the position.

(B) Within sixty (60) calendar days of the date this decision becomes

final, the agency shall provide appellant with a back pay award, with

interest, reflecting any salary and/or benefits he lost as a result of

his nonselection. The agency shall determine the appropriate amount

of back pay, interest and other benefits due appellant, pursuant to

29 C.F.R. � 1614.501, no later than sixty (60) calendar days after

the date this decision becomes final. Interim earnings may be deducted

from the back pay award. The appellant 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 appellant for the undisputed amount

within sixty (60) calendar days of the date the agency determines

the amount it believes to be due. The appellant 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."

(C) The agency shall provide training to the officials responsible

for its actions in this matter in their responsibilities under all the

Federal equal employment opportunity statutes.

(D) The agency shall post in the Transportation Division, Department of

Logistics, Fort Buchanan, Puerto Rico, 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.

(E) 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 back pay and other benefits due appellant,

including evidence that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. � l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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 an action in an appropriate

United States District Court. It is the position of the Commission

that 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. You should be aware, however, that

courts in some jurisdictions have interpreted the Civil Rights Act of

1991 in a manner suggesting that a civil action must be filed WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision.

To ensure that your civil action is considered timely, you are advised to

file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive

this decision or to consult an attorney concerning the applicable time

period in the jurisdiction in which your action would be filed. In the

alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)

CALENDARS 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 (Z1092)

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:

April 9, 1999

_________________ _______________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated _____________ which found that

a violation of the Age Discrimination in Employment Act (ADEA) of 1967,

as amended, 29 U.S.C. �621 et seq., has occurred at this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of the person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions or privileges of employment.

The Transportation Division, Department of Logistics, Fort Buchanan,

Puerto Rico, supports and will comply with such Federal law and will

not take action against individuals because they have exercised their

rights under law.

The Transportation Division, Department of Logistics, Fort Buchanan,

Puerto Rico, has been found to have discriminated against the individual

affected by the Commission's finding on the basis of his age when he

was not selected for the position of Transportation Assistant, GS-6.

The Commission has ordered that this individual be retroactively placed

in the disputed position with back pay. The Transportation Division,

Department of Logistics, Fort Buchanan, Puerto Rico, will ensure that

officials responsible for personnel decisions and terms and conditions

of employment will abide by the requirements of all Federal equal

employment opportunity laws and will not retaliate against employees

who file EEO complaints.

The Transportation Division, Department of Logistics, Fort Buchanan,

Puerto Rico, will not in any manner restrain, interfere, coerce, or

retaliate against any individual who exercises his or her right to

oppose practices made unlawful by, or who participates in proceedings

pursuant to, Federal equal employment opportunity law.

____________________

Date Posted: _____________________

Posting Expires: _________________

1 The record shows that one of the selecting officials was the same

individual who had made the remark to appellant about management's desire

for "young blood."