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."