0520120563
01-25-2013
Cristino Arroyo, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cristino Arroyo,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120563
Appeal No. 0120121771
Agency No. 200P-0678-2011102297
DENIAL
The Agency timely requested reconsideration of the decision in Cristino Arroyo v. Department of Veterans Affairs, EEOC Appeal No. 0120121771 (July 11, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
On April 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), disability (Post Traumatic Stress Disorder), and age (76) when, on March 1, 2011, he received a notice of non-selection for the position of Medical Support Assistant, GS-04, under Vacancy Announcement 427052. Complainant also listed some 11 other positions for which he applied from January 28, 2006 through July 1, 2010. The Agency dismissed 11 claims for untimely EEO Counselor contact. The Agency also found that with regard to the remaining vacancy, the Agency articulated a legitimate nondiscriminatory reason for its action, namely, that it selected someone from within the Agency for the position. The Commission affirmed the procedural dismissals but reversed the Agency's finding of no discrimination with regard to the Complainant's age discrimination claim. The Commission found that Complainant had produced direct evidence of age discrimination when it was shown that his former supervisor was told that Complainant would not be considered for the position because he was "too old," and the manager "was seeking someone who would hang around a long time." The manager indicated that Complainant should enjoy his retirement. The Commission determined, however, that this was a mixed motive claim and that the Agency would have made the same decision absent the discrimination. Consequently, the Commission found that the Agency had limited its liability and ordered only training and possible discipline for the managers involved as a remedy.
REQUEST FOR RECONSIDERATION
In the Agency's request for reconsideration, the Agency contends that the Commission erred by using a mixed motive analysis instead of a McDonnell Douglas analysis. The Agency, pursuant to Gross v. FBL Financial Services, Inc., 557 U.S. ___, 129 S. Ct. 2343 (2009), requests that the finding of discrimination by vacated.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. In response to the Agency's contention that the Commission erred in its analysis, the Commission has long held that the legal framework established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for proving a Title VII claim are also applicable in proving an age discrimination claim. See Carver v. Dep't of Justice, EEOC Appeal No. 07A50025 (Aug. 8, 2005); Brown v. Dep't of the Navy, EEOC Request No. 05970009 (Apr. 20, 1998). In Gross v. FBL Financial Services, Inc., 557 U.S. ___, 129 S. Ct. 2343 (2009), the Supreme Court reviewed the statutory language of the ADEA's prohibition of discrimination "because of" age, set forth in 29 U.S.C. � 623(a)(1), which applies to private sector employers. Based on this language, the Court concluded that for a plaintiff to ultimately prevail in a private sector ADEA claim, he or she must demonstrate that "but for" age the alleged discriminatory employment action would not have occurred. The Court then concluded that this causation requirement precludes the application of a mixed motive analysis to claims arising under 29 U.S.C. � 623(a)(1).
However, we note that another section of the ADEA applies to the prohibition of age discrimination in the federal sector. See 29 U.S.C. � 633a(a) (all personnel actions in federal employment "shall be made free from any discrimination based on age"). Contrary to the holding in Gross, the decision in Fuller v. Gates, Secretary of Defense, 2010 WL 774965 (E.D. Tx. March 1, 2010) held that Gross applied to private sector employment and not employment by the federal government. The court in Fuller found that the different language in the two sections of the ADEA demonstrated that Congress intended different meanings. Id. Further, the Fuller court determined that based on its plain meaning of the language "free from any" must be construed as being broader than "because of," such that the "mixed motive analysis" continues to apply in age discrimination claims against the federal government. Id. Accordingly, we find that the Commission was correct in its analysis of this matter and that the decision in EEOC Appeal No. 0120121771 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ordered to take the following remedial action:
1. The Agency is directed to provide EEO training for the responsible management
officials addressing their responsibilities with respect to eliminating discrimination in the workplace with an emphasis on age discrimination and the current state of law on employment discrimination,
2. The Agency shall consider taking disciplinary action against the management officials identified as being responsible for the discrimination perpetrated against Complainant. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
3. The Agency shall complete all of the above actions within 30 calendar days from the date on which the decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
POSTING ORDER (G0610)
The Agency is ordered to post at its Medical Center in Tucson, Arizona 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 (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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
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 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 (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
__1/25/13________________
Date
2
0520120563
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120563