Iris M. Zayas, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJun 28, 2001
01983349 (E.E.O.C. Jun. 28, 2001)

01983349

06-28-2001

Iris M. Zayas, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Iris M. Zayas v. Department of Agriculture (Forest Service)

01983349

June 28, 2001

.

Iris M. Zayas,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01983349

Agency No. 960102

Hearing No. 110-97-8099X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleges she was discriminated against on the bases of national origin

(Hispanic) and reprisal (prior EEO complaint) when she was not selected

for a GS-401-807-11/12 Urban Forestry Specialist position on July 13,

1995.

For the following reasons, the Commission AFFIRMS the agency's final

decision.

The record reveals that complainant, an Urban Forestry Specialist,

GS-401-09, at the agency's Atlanta, Georgia facility, filed a formal EEO

complaint with the agency on January 2, 1996, alleging that the agency

had discriminated against her as referenced above. At the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

Following a hearing, the AJ issued a decision finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of reprisal discrimination. Specifically, the AJ found that while

the recommending official who placed complainant's name on the list

of eligible candidates was aware of complainant's prior EEO complaint

and the resulting Settlement Agreement (SA), neither the members of the

selection panel who ranked complainant last among eight candidates nor

the selecting official who chose the selectee were aware of complainant's

prior EEO activity. The AJ did conclude, however, that complainant had

established a prima facie case of national origin discrimination because

the selectee was not in her protected class.

Nevertheless, the AJ further concluded that the agency articulated a

legitimate, nondiscriminatory reason for its selection. The AJ found that

the selection panel had rated complainant last among the eight candidates

because complainant's education, experience, and training were inferior

to those of the other candidates, particularly the top three candidates.

The selecting official then chose the top ranked candidate.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reason was a pretext to mask unlawful

discrimination. In reaching this conclusion, the AJ found that the

complainant did not establish that she was so clearly more qualified

for the position than the selectee as to compel a finding of pretext.

The agency's final decision adopted the AJ's decision.

On appeal, complainant contends that the AJ erred when she failed to

find that complainant had established a prima facie case of reprisal,

and notes that the FAD did, in fact, find such a case. Complainant next

argues that the FAD then failed to address her contention that other acts

of reprisal contributed to her instant nonselection. In this regard,

complainant asserts that after filing her first EEO complaint, she was

denied training, her performance appraisals were not properly completed

and she was subjected to derogatory remarks. Complainant notes that,

according to paragraph 7 of the SA, the agency agreed to advertise

the Urban Forestry Specialist position, originally a GS-401-12, at the

GS-11/12 level, so that qualified GS-9 Specialists such as complainant

could apply for the position. Nevertheless, S-1, who had signed the SA as

the responsible management official, then added the GS-807 job series

to the job announcement, which made Landscape Architects eligible to

apply for the position as well. Complainant contends that she was then

unable to compete against the GS-807 Landscape Architects who applied

because of her lack of experience in that area.

In its brief in opposition to complainant's appeal, the agency notes that

complainant's instant EEO complaint neither raised matters other than

the nonselection at issued nor asserted a breach of the SA. The agency

states that, pursuant to the regulations in effect at the time in

question,<1> it advised complainant to seek EEO counseling when she

subsequently attempted to challenge matters other than the nonselection

identified in her instant complaint, including the prior denials of

training and performance appraisals. In addition, the agency states

that complainant should have notified the EEO Director of any alleged

noncompliance with the SA within 30 days of when she knew or should have

known of the alleged noncompliance, pursuant to EEOC Regulation 29

C.F.R. � 1614.504(a).

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).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or were motivated by

discriminatory animus toward complainant's national origin. In this

regard, we take cognizance of the following facts and conclusions of

law. First, we agree with the agency that complainant's allegations

of a violation of the SA should have been timely reported to the EEO

Director pursuant to EEOC Regulation 29 C.F.R. � 1614.504(a). In any

case, however, we find that complainant's contention that paragraph 7

of the SA was violated when S-1 made applicants in the GS-807 job series

eligible to apply for the advertised position to have no merit. This is

because the SA is a contract between the complainant and the agency and

it is the intent of the parties as expressed in the contract, and not

some unexpressed intention, that controls the contract's construction.

In interpreting a SA, the Commission has applied the contract principle

known as the �plain meaning rule,� which holds that where a writing is

unambiguous on its face, its meaning is determined from the four corners

of the instrument without resort to extrinsic evidence. Nitz v. United

States Postal Service, EEOC Appeal No. 01976619 (August 24, 2000).

Paragraph 7 of the SA reads in pertinent part:

Management agrees to pursue advertisement [sic] to fill an Urban Forestry

specialist position, GS-491-12, ... and to advertise this position at

the GS-11 grade level, also, so that qualified GS-9 employees can apply

for the position.

The question then becomes whether by making employees in the GS-807

job series eligible to apply for the Urban Forestry position as well as

those in the GS-491 job series, the agency violated the above Paragraph

7 of the SA. We conclude that it did not, in that Paragraph 7 does not

specifically state that the position must be filled by an applicant in

the GS-491 series only. In this regard, we note that it is a prerogative

of management to set policies and carry out personnel decisions, which

should not be second-guessed by a reviewing court or an administrative

tribunal absent evidence of unlawful motivation. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).

We further conclude that there was no evidence of unlawful motivation,

as complainant was ranked last among eight applicants for the position

while the selectee was ranked first by the selection panel. Thus,

complainant did not show that her overall qualifications were so plainly

superior to those of the selectee that a finding of pretext is warranted.

See Bauer v. Bailar, 647 F.2d 1037 (10th Cir. 1981).

We therefore discern no basis to disturb the AJ's decision. Hence , after

a careful review of the record, including complainant's contentions on

appeal, the agency's response, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (S0900)

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. 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

June 28, 2001

Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect.