Jose A. Otero, Complainant,v.Thomas E. White, Secretary Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 20, 2003
01A23308 (E.E.O.C. Oct. 20, 2003)

01A23308

10-20-2003

Jose A. Otero, Complainant, v. Thomas E. White, Secretary Department of the Army, Agency.


Jose A. Otero v. Department of the Army

01A23308

October 20, 2003

.

Jose A. Otero,

Complainant,

v.

Thomas E. White, Secretary

Department of the Army,

Agency.

Appeal No. 01A23308

Agency No. AQFZF00102B0020

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his 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., and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

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

following reasons, the Commission REVERSES the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Sports Director, GS-0030-9, at the agency's U.S. Army

Garrison Western Corridor, Korea facility. Complainant sought EEO

counseling and subsequently filed a formal complaint on February 1,

2001, alleging that he was discriminated against on the bases of race

(Hispanic), national origin (Puerto Rican), sex (male), disability

(right eye, right hip), and reprisal for prior EEO activity when:

(1) he was not selected for promotion to Sports Director GS-11; and

(2) he was detailed to Camp Casey Sports Office.

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge

or alternatively, to receive a final decision by the agency. When

complainant failed to respond within the time period specified in 29

C.F.R. � 1614.108(f), the agency issued a final decision. <1>

In its FAD, the agency concluded that complainant stated a prima facie

case of discrimination based on his race and national origin because

other Sports Directors who were promoted were not in his protected

groups. The agency found no prima facie case of discrimination based

on sex because those promoted were also male. The agency found no

prima facie case of discrimination based on a disability because

complainant stated his disabilities did not substantially limit a

major life activity. The agency found a prima facie case of reprisal

because complainant had participated in protected EEO activity prior

to his non-promotion in December 2000 and his detail in May 2001.

According to the agency, however, the responsible management officials

stated legitimate non-discriminatory reasons for the detail and for not

promoting complainant. Specifically, the agency found that the Western

Corridor installation had been slated for elimination in 2004 and because

complaints had been received about the sports program.

On appeal, complainant contends that the agency's decision finding no

discrimination was not correct. He claims that because he had certain

known and apparent disabilities, he was treated less favorably in being

considered for a promotion. Complainant argues that he was not informed

about complaints about the Western Corridor sports program and he was

not placed on a performance improvement plan as the Commander asserted.

He contends that the actions taken against him were in reprisal for

his prior protected activity, namely his testimony on behalf of another

Sports Director whose tour was not extended and for his own complaint

which was settled in prior years. The agency did not submit a response

to complainant's appeal.

ANALYSIS AND FINDINGS

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Heyman v. Queens Village Comm. for Mental Health

for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999)

(analyzing a disparate treatment claim under the Rehabilitation Act);

and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)

(applying McDonnell Douglas to reprisal cases), we find that even assuming

that complainant stated a prima facie case of race, sex, national origin

or disability discrimination, complainant did not demonstrate that

the reasons for not promoting him were a pretext for discrimination.

For purposes of our analysis, we will also assume, without specifically

deciding, that complainant is an individual with a disability as defined

by the Rehabilitation Act and our regulations.

According to the evidence in the record, the agency filled several

positions at Camp Casey in 2000. For each position, a referral list was

created of those qualified for the position being filled. The list was

forwarded to the Director for Community Activities (RMO1) for a decision.

In some cases, RMO1 sought a recommendation from others regarding

the best person for the job. Complainant applied for the position of

Sports Director GS-11 under Vacancy Announcement KU-00-633W to fill

the position he occupied in the Western Corridor, at the higher GS-11

grade level. Complainant, along with 11 other applicants, were listed

as qualified on the referral list. According to the agency's profile

of the applicants, one was Asian, one was Hispanic, three were Caucasian

and 6 were of unknown race or national origin. The Commander of Area 1,

(Camp Casey and the Western Corridor) (RMO2), stated he cancelled the

announcement because it was issued in error. He stated that he decided

not to fill the position because of plans to eliminate many of the Western

Corridor installations in 2004. Complainant did not establish that this

explanation was a pretext for discrimination such as by evidence that

the position was later re-announced and filled or that there was reason

to doubt RMO2's explanation. In addition, complainant did not establish

that he was sure to be selected from among the other ten applicants.

Addressing complainant's claim of reprisal, we find that the agency's

reasons for detailing complainant in May 2001, are a pretext for

reprisal based upon complainant's prior protected activity.<2> In

reaching this conclusion, we find that complainant's protected activity

closely coincided with the decision to detail him to a different location.

Complainant stated that the detail caused him great inconvenience because

of the length of the commute and the additional cost to him to travel

70 miles per day for 131 days. Complainant sought EEO counseling citing

RMO1, and RMO2 as responsible for the action. The date of complainant's

final EEO interview was February 21, 2001 and he filed his complaint on

March 16, 2001. Both managers were interviewed during counseling. Thus,

they were both aware of complainant's protected activity at the time RMO2

decided to detail complainant to the Camp Casey Sports office in May 2001

two months after he filed his EEO complaint. In addition, according to

his testimony, RMO1 was aware that complainant had engaged in protected

activity prior to the start of RMO1's tenure as Commander in 1999.

We find that RMO2's reasons for detailing complainant were not credible

and were more likely motivated by reprisal for his EEO activity.

RMO2 stated that the reason for complainant's detail was his poor

performance and that the detail was part of a performance improvement plan

(PIP) to place complainant under the supervision of the Sports Director

at Camp Casey. The record reflects that the memorandum issued May 11,

2001 directing complainant to report to Camp Casey, did not mention a

performance improvement plan or that it was based on his poor performance.

This memorandum was issued by RMO2. Complainant stated he was not given a

specific reason for the detail and was not told it was based on his poor

performance. The record contains no other evidence that complainant was

placed on a PIP. Rather the record indicated complainant's performance

was considered to be more than satisfactory. Complainant's performance

appraisal issued just months before on November 20, 2000, gave him an

�excellence� rating on 25 -75% of his objectives, and an overall rating

of �2� successful.<3> This rating was signed off by RMO1 as senior rater

on January 1, 2001. On his prior appraisal he was rated even higher on

meeting his objectives and had the highest overall rating of �1.�

RMO1 stated that he had received complaints about the Western Corridor

sports program and that complainant's performance deteriorated after he

was not approved for an upgrade to the point where written counseling

was not effective. There was no evidence to support his claim,

however, as the record contains no written counseling post dating the

decision not to upgrade the Western Corridor position in December 2000.

RMO1 failed to give specific information about either the nature of the

alleged complaints or the identity of those who allegedly complained.

In addition, this rationale is not consistent with complainant's

performance rating during the same time period where he was rated

excellent in his work hosting all �EUSA� and Area sporting events held in

the Western Corridor and as the primary action officer for major events.

The Deputy Director, Division of Public Works for the Western Corridor

confirmed that there was no corrective action issued by the personnel

office nor was there any other written corroboration of an action taken

to correct complainant's performance.<4>

On rebuttal, complainant stated that after RMO1 left his position, the

new Area 1 Commander returned him to his original position as Sports

Director in the Western Corridor. He stated there was no mention of

his performance on his return to his position.

Based on this evidence, which raises doubts about credibility of the

agency's reasons for detailing complainant to the Camp Casey facility,

together with the close proximity in time to complainant's protected

activity, we conclude that it was done in reprisal for complainant's

filing of an EEO complaint in March 2001.

Therefore, 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 reverse the agency's final

decision and remand this case to the agency to take remedial actions in

accordance with this decision and Order below.

ORDER (C0900)

The agency is ordered to take the following remedial action:

The issues of compensatory damages and attorney's fees and costs

are REMANDED to the agency. The agency shall conduct a supplemental

investigation of the compensatory damages issue to include a statement

from complainant setting forth his claim for pecuniary and non-pecuniary

damages. The evidence will include receipts or verification to

support claims of out-of-pocket expenses and/or non-monetary damages.

Complainant, through counsel, shall submit a request for attorney's fees

and costs, if any, in accordance with the Attorney's Fees paragraph set

forth below. No later than sixty (60) days after the agency's receipt of

the attorney's fees statement and supporting affidavit, the agency shall

issue a final agency decision addressing the issues of attorney's fees,

costs, and compensatory damages. The agency shall submit a copy of the

final decision to the Compliance Officer at the address set forth below.

The agency will require RMO1 and RMO2 to attend training on the

prohibitions and requirements of Title VII, with an emphasis on reprisal

for protected activity.

3. The agency will post a notice as directed below.

4. The agency will consider taking disciplinary action against RMO1

and RMO2 identified as being responsible for the discriminatory

actions taken against complainant. The agency shall report its

decision to OFO and 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.<5>

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 verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Area 1 Camp Casey/Western Corridor

Korea facilities 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.

ATTORNEY'S FEES (H0900)

If complainant 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 (K0501)

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 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (R0900)

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 action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 (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

October 20, 2003

__________________

Date

1The record indicates that complainant received notice of the right to

request a hearing on January 24, 2002, but did not respond to the notice.

2Complainant amended his complaint to add a claim of reprisal surrounding

his detail on May 16, 2001.

3The rating system consisted of 5 categories in which the employee was

rated comparing individual objectives with his actual accomplishments

- Excellence 75% or more objectives, Excellence 25-75% objectives,

Success All or Excellence 1-24% objectives, Needs Improvement 1 or more

objectives, Fails 1 or more objectives. Overall ratings ranged from a

high of 1 for successful to a low of 5 for unsuccessful.

4This witness stated he believed the action to deny complainant a

promotion was due to complainant's �protected bases� because Hispanics

were not treated fairly by management. As discussed in the decision,

we did not find discrimination based on complainant's national origin

or race.

5Commission regulations state that each agency shall take appropriate

disciplinary action against employees who engage in discriminatory

practices. 29 C.F.R. � 1614.102(a)(6). In promulgating this policy,

the Commission clearly stated that it could not discipline or order the

discipline of employees directly. 52 Fed. Reg. 41920, 41921 (October

30, 1987). Rather, the Commission stated that the requirement of

corrective, curative, or preventative action permits the Commission to

recommend that disciplinary action be considered by the agency. Id. The

Commission reaffirmed this policy in Cassida v. Department of the Army,

EEOC Request No. 05900794 (September 14, 1990), in which it stated that it

could not order an agency to take disciplinary action against a particular

individual, but could order the agency to consider taking disciplinary

action under appropriate circumstances. The implementation of 29

C.F.R. Part 1614 in 1992, and the implementation of the amendments to

Part 1614 in 1999 have not altered the Commission's policy in this regard.