01974799
02-23-1999
David T. Contreras, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
David T. Contreras v. Department of Veterans Affairs
01974799
February 23, 1999
David T. Contreras, )
Appellant, )
)
v. ) Appeal No. 01974799
) Agency No. 95-1464
Togo D. West, Jr., ) Hearing No. 360-95-8526X
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
On May 28, 1997, David T, Contreras (appellant) timely appealed the final
decision of the Department of Veterans Affairs (agency), dated April
23, 1997, which concluded that he had not been discriminated against in
violation of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. In his complaint, appellant had alleged that agency officials
discriminated against him on the bases of his national origin (Hispanic),
sex (male), and/or reprisal for engaging in prior EEO activity, when he
was not selected for the position of GS-303-6 Program Analyst, advertised
under Vacancy Announcement No. MP-94-050-MP. This appeal is accepted
in accordance with the provisions of EEOC Order No. 960.001.
At the time the events at issue arose, appellant, a Hispanic male,
had been employed by the agency since 1975, and was currently working
as a Health Technician, GS-6, in the San Antonio Outpatient Clinic
of the Audie L. Murphy Memorial Veterans Hospital. In this position,
he performed patient care, as well as a variety of administrative tasks.
The record establishes that appellant's performance had been consistently
rated at the "Outstanding" or "Highly Successful" levels. In the early
1990s, the agency computerized a number of operating systems which had
formerly been performed manually. One of these computer systems was
known as "DHCP." Appellant has a bachelor's degree in health care
administration, as well as a number of specialized college computer
courses. As a result of his training, appellant was responsible for
bringing the San Antonio clinic on line into the DHCP computer system.
Later, the computer functions of the clinic became the responsibility
of the hospital's Medical Administration Service (MAS).
In October 1994, the agency issued a vacancy announcement advertising for
the position of Program Analyst, GS-303-6, with MAS. Appellant was among
the candidates who applied for the position. However, a non-Hispanic
female employee of MAS (the "selectee") was chosen for the position.
At the time of her selection, the selectee was a GS-4 Medical Clerk,
who had worked for the agency for about one year. She had formerly been
on active duty in the Air Force, and had some college, but no degree.
In her only performance evaluation with the agency, she had been rated as
"Fully Successful."
Appellant stated that he believed he had been discriminated against
when not selected for the position in question for a number of reasons.
First, he judged his qualifications for the position to be far superior
to those of the selectee, and believed that his qualifications were not
really examined because a preselection had occurred. He also noted that
the original vacancy announcement, under which he applied, was canceled
and replaced with an amended announcement which he believed was rewritten
to be more advantageous to the selectee. Finally, appellant believed
his application was negatively viewed because of a memorandum he had
written expressing his opposition to "nepotism and cronyism" within
the agency. It is undisputed that the agency officials responsible for
this selection were aware of this memorandum. Appellant's second-level
supervisor discussed the memorandum at a staff meeting, and later told
appellant's wife that "...he [appellant] should not be writing that kind
of stuff because all it's going to do is just hurt himself."
Management witnesses stated that the candidates were rated by a committee
against criteria which was judged to be related to the position
in question. All candidates were rated against the same criteria.
Agency witnesses explained that the selectee was chosen because she
attained the highest rating score and, therefore, was considered best
qualified for the position. These witnesses asserted that appellant
lacked sufficient administrative and computer experience. It was
alleged that the selectee, during her military career, had extensive
administrative experience, and, because she already worked in MAS,
had the most relevant agency work experience.
On March 24, 1995, 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 February 25, 1997, following a hearing at which seven witnesses
testified, the AJ issued a decision which concluded that the evidence
supported a finding of national origin and sex discrimination.<1> The AJ
based this conclusion on a determination that the evidence established
that appellant was, in fact, significantly better qualified for the
position in question than the selectee by virtue of his education,
training and work experience. The AJ found that evidence strongly
suggested that the ratings were unfairly skewed in the selectee's
favor and that she was awarded high ratings on several factors without
adequate justification. For example, even though she had very limited
experience with agency directives regarding eligibility and entitlements
for agency medical, dental and travel benefits, which was essential to
the position, she scored the same as those who had extensive experience
in this area. The AJ also found significant discrepancies between the
documentation of the scoring used to justify appellant's nonselection
and the written and oral testimony of committee members. For example,
one of the committee members, in justifying his nonselection, averred that
appellant "has some experience in DHCP, but he does not have a whole lot."
However, appellant's Appraisal for Promotion, submitted in support of his
application for selection, was authored by this same individual and said:
[Appellant] is highly skilled in the operation of the DHCP computer.
His present menu includes but is not limited to the following: All
MAS options, Fileman, Ward Lab menu, Beneficiary Travel, C&P Tracking,
HINQ users menu, OPC menu, Radiology Order entry, Register menu, Special
Survey and Display--edit user characteristics."
The AJ also noted that one of the reasons offered by the agency for
appellant's lower rating was that he "lacked direct MAS" experience.
However, in their testimony, the committee members were in accord that MAS
experience should have constituted only a difference of one additional
point in the final scoring criteria, yet appellant's score reflected a
difference of more than one point in this category. Moreover, the AJ
found that the committee ignored the fact that appellant had worked in
MAS when needed as a volunteer. Finally, the AJ was troubled by the fact
that the committee found appellant lacking in administrative experience,
despite his college degree in that field and records which evidenced
extensive experience in administration. The AJ concluded that the
combination of all these factors, coupled with a number of procedural
irregularities in the selection process, were sufficient to establish
that the agency's articulated reason for its selection was pretextual,
and that discrimination based on national origin and sex was the real
reason for appellant's nonselection.
On April 23, 1997, the agency issued its final decision in which it
rejected the AJ's finding of discrimination in this matter. 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 discrimination. In reaching this decision,
the Commission notes that the credibility determinations of the AJ are
entitled to deference due to the AJ's first-hand knowledge, through
personal observation, of the demeanor and conduct of the witnesses
at the hearing. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990). None of the arguments raised
by the agency on appeal differ significantly from those previously raised
with, and considered by, the AJ in rendering his decision.
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 national origin and sex 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 place appellant in the position in question,
or a substantially equivalent position with promotion potential to the
GS-7/9 level, retroactive to the date the selectee assumed the position.
The agency shall award appellant any salary and/or benefits he lost as
a result of his nonselection.
(B) 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.
(C) The agency shall post at the Audie L. Murphy Memorial Veterans
Hospital 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.
(D) 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.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
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:
Feb 23, 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 Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
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 Audie L. Murphy Memorial Veterans Hospital supports and will comply
with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Audie L. Murphy Memorial Veterans Hospital has been found to have
discriminated against the individual affected by the Commission's
finding on the bases of his national origin (Hispanic) and sex
(male) when he was not selected for the position of Program Analyst,
GS-303-6. The Commission has ordered the agency to retroactively
place this individual in the position in question with an award of any
appropriate back pay. The Audie L. Murphy Memorial Veterans Hospital
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 Audie L. Murphy Memorial Veterans Hospital 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: _________________
29 C.F.R. Part 1614
1 However, the AJ found no violation of Title VII's anti-retaliation
protections because the record did not support a finding that appellant
was opposing a discriminatory policy or practice of the agency within the
purview of the EEO process when he wrote his memorandum opposing "nepotism
and cronyism." As appellant has not provided any additional argument or
evidence on this issue on appeal, the Commission concurs with the AJ's
finding.