01A11972
09-16-2002
Jose L. Diaz, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Jose L. Diaz v. Department of Justice
01A11972
9/16/02
.
Jose L. Diaz,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A11972
Agency No. M98-0105 & 187-7-206
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was an
applicant for a Deputy U.S. Marshal position at the United States Marshals
Service (USMS) in Puerto Rico. Complainant sought EEO counseling and
subsequently filed a formal complaint on October 16, 1998, alleging that
he was discriminated against on the bases of national origin (Hispanic
of Puerto Rican origin) and reprisal for prior EEO activity when he was
not selected for a Deputy U.S. Marshal (hereafter Marshal) GS-1811-5/7,
position in June 1998.
The Report of Investigation (ROI) establishes that the candidates for
the Marshal position came from a National Register, which contained
12,000 names and a geographic preference Spanish speaking certificate,
which limited the candidates to work in Puerto Rico. Among the selective
factors for the Marshall position was that the candidates speak Spanish.
Before the agency extended an employment offer, a Deputy Review Panel
(DRP) reviewed each candidates' file and approved the candidates placement
in a pool of applicants ready for job offers. In May of 1998, the DRP
reviewed approximately 65 files for five Marshall positions in Puerto
Rico (PR). One member of the DRP signed off on complainant's file to be
placed in the pool of candidates eligible for job offers, but two other
members of the DRP, including the Chairperson of the Panel, had questions
and requested additional information on complainant's application on May
22, 1998. The members of the DRP subsequently approved complainant for
receipt of a job offer, but not until July 1, 1998, which was after the
commencement date of the June 1998 Academy class.
Of the 65 files reviewed, there were five individuals selected for the
June 1998 Academy class who were assigned to PR. Of the five individuals
selected for the June 1998 Academy class, three of them were white males
and two of them were Hispanic males. All of the selectees purportedly
spoke Spanish fluently or passably. The selections were made by five
Personnel Management Specialists in conjunction with the Chief of the
Field Support Team, GS-201-14 (white U.S citizen, no prior EEO activity)
(hereafter Chief). The Chief noted that complainant was selected from
a �Geographic Preference Spanish Speaking Certificate.� She noted that
these types of certificates require that the candidate must : (1) speak
fluent Spanish, (2) be interviewed and give a writing sample in Spanish,
and (3) be placed in a specific geographic designation. In this case,
it was PR. According to the Personnel Management Specialist (white,
U.S. citizen, no prior EEO activity), who handled this certificate, the
selection team gave strong consideration to individuals who lived close
to the Districts in need of Marshals, as well as to those individuals
with high scores on the qualifying examinations.
In his affidavit to the EEO Investigator, complainant averred that
the Panelists on the DRP were concerned that he had a prior case of
discrimination and consequently, they placed his files on a �back burner�
in an attempt to deny him employment. Complainant added that vacancies
occurred in the Marshal Service subsequent to June 1998, but because the
agency continued to hire from the National registry, it bypassed his name.
In fact, complainant states that the agency treats all the candidates from
PR as second class citizens because the Office of Personnel Management
(OPM) gave them a hiring preference due to their ability to speak Spanish.
Complainant adds that information regarding his prior EEO complaint was
already on file, and if the members of the DRP had questions regarding
it, the agency staff should not have taken a month and a half to ask
him about it.
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. Complainant
requested that the agency issue a final decision. In its FAD, the agency
concluded that complainant failed to prove discrimination because he was
ineligible for employment at the time the selection decision was made.
As such, the agency noted that complainant was not cleared for hiring
along with the other Puerto Rican candidates because two members of
the DRP had questions and requested additional information. Moreover,
the agency found that there was no evidence that the delay caused by the
request for additional information from the Panel members was based on
complainant's national origin.
With respect to complainant's allegation of reprisal discrimination, the
agency determined that there was no persuasive evidence that the members
of the DRP were aware of complainant's EEO activity prior to June 1998.
In this regard, the agency notes that the Chairperson of the DRP averred
that she was unaware at the time she requested the additional information
that complainant's lawsuit involved EEO issues or an EEO complaint.
In support of this finding, the agency notes that it was not until June of
1998 that complainant faxed the information regarding his prior EEO case
to the Investigator. In summary, the agency concluded that based on the
record, there was no factual basis for concluding that retaliatory animus
motivated the delay in approving complainant's eligibility for employment.
On appeal, complainant contends that the members of the DRP were aware
of his prior EEO activity because he had discussed his complaint with an
interview panel on February 9, 1998, he discussed it with the Suitability
Investigator during a background interview in April 1998, and he mentioned
it to an employee of the Background Investigation Office in May of 1998.
Moreover, complainant notes that although the PMS stated that strong
consideration was given to the candidates who lived close to the District
where the vacancies were located, none of the five candidates who were
selected for the June 1998 class, and who were assigned to PR as their
duty station, actually lived in PR. Moreover, complainant noted that
none of the three candidates who were selected from the national registry
could speak Spanish, despite the fact that ability to speak Spanish was
one of the selective factors for the Marshal position. The agency made
no new arguments nor submitted any new evidence on appeal.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in Title VII cases is a
three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant has the initial burden of establishing a prima
facie case of discrimination. A prima facie case of discrimination
based on national origin is established where complainant has produced
sufficient evidence to show that he is a member of a protected class
and he was accorded treatment less favorable than that given to persons
otherwise similarly situated who are not members of his protected class.
Potter v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Moreover, complainant may establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252
(1981). If the agency articulates a reason for its action, the burden
of production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason
is discrimination. Throughout the complaint process, complainant retains
the burden of proof to establish discrimination by a preponderance of
the evidence.
In the instant case, the agency concedes that complainant established
a prima facie case of national origin discrimination. However, with
respect to complainant's claim of reprisal discrimination, the agency
determined that there was no persuasive evidence that the members of
the DRP were aware of complainant's EEO activity prior to June 1998.
Consequently it found that complainant failed to establish a prima facie
case of reprisal. We disagree.
Upon reviewing the record as a whole, we find that the DRP, and
particularly the Chairperson of the DRP, were aware of complainant's EEO
activity prior to June 1998. As such, we note that the Chairperson
initially averred that she and another panelist requested additional
information on complainant because the background investigation
indicated that he was involved in a lawsuit in Ft. Lauderdale, Florida,
and they wanted more information on the circumstances of that suit.
As a follow up question to that response, the EEO Investigator asked,
�Please indicate any knowledge you may have had of [complainant's]
filing an EEO complaint against the Ft. Lauderdale Police Department
and whether this complaint was a factor in his processing.� The
Chairperson answered, �his processing was not delayed by the USMS.
The previously mentioned complaint was a factor because we felt that we
needed additional information on the circumstances.� At this point in
time, the Chairperson did not deny knowing of complainant's EEO complaint
although she was asked directly if she had such knowledge.
It was only after a second set of question from the EEO Investigator,
that the Chairperson denied having any knowledge of complainant's prior
EEO activity. When asked by the Investigator if she knew of complainant's
prior EEO activity when she asked for additional information, the
Chairperson indicated that the only information the Panel had was that
provided by complainant on Form 85-P. According to the Chairperson, this
form asked complainant if he �had ever been involved in any lawsuits or
civil judgments.� The Chairperson added, in her supplemental affidavit,
which is unsigned, that the Panel had requested additional information
in the past on other candidates in order to ascertain what liabilities
may exist with the applicants.
The statement given by the Chairperson in her supplemental affidavit
is inconsistent with the statement she gave in her initial affidavit.
The Chairperson's denial of any knowledge of complainant's prior EEO
activity is further undermined by the testimony of an agency staff
person (hereafter Staffer) (African American, prior EEO activity) who
conducted complainant's suitability review and is a member of the agency's
Background Investigation Division. This Staffer averred that Form 85-P
is a �Questionnaire for Public Trust Positions,� and that it does not
ask any questions regarding the candidates involvement in any lawsuits or
civil judgments. Further, the Staffer indicated that the Chairperson and
the other members of the Panel would have obtained access to information
regarding complainant's lawsuit from the Background Investigative File.
This file, according to the Staffer, established that complainant had
filed �suits� with the Ft. Lauderdale Human Rights Commission and the
EEOC, when complainant was not selected for a Police Officer position
with the Ft. Lauderdale Police Department. The Staffer added that the
background investigation established that the Human Rights Commission
ruled in complainant's favor, and the case was ultimately settled.
In his appeal, complainant provided un-rebutted testimony that he gave
information to the agency staff on his EEO complaint, prior to June 1998.
It is unclear to the Commission why with access to this information,
the DRP felt a need for additional information regarding complainant's
background. What is clear to us, however, is that at the time the Panel
members requested additional information on complainant, they were aware
of his prior EEO activity and it was that knowledge which prompted two
of the three Panel members to ask for additional information regarding
complainant's suits. Consequently, we find that a causal connection does
exist between complainant's EEO activity and his ultimate non-selection
for the Deputy Marshal position. Despite this finding, we also hold
that the agency articulated legitimate non-discriminatory reasons for
requesting additional information on complainant. Namely, the Chairperson
indicated that they requested such additional information in the past
to ascertain what liabilities or performance problems complainant had
as a candidate for the Deputy Marshal position.
Based on the above discussion, we find that the agency has articulated
a legitimate non-discriminatory reason for not selecting complainant
for one of the Marshal positions. Specifically, the agency stated that
complainant was not selected for the Marshal position because he was not
cleared for employment when the selection decision was made. The agency
also asserted that the Panel members had legitimate questions, which
resulted in a delay in approving complainant's eligibility for employment.
Because the agency articulated a legitimate non-discriminatory reasons
for the challenged personnel action, complainant must demonstrate
that the reason is pretextual and/or that the agency was motivated by
discriminatory animus in not selecting him for the Marshal position.
Upon reviewing the record as a whole, the Commission finds that
complainant failed to show by a preponderance of the evidence that the
reason articulated by the agency for his non-selection was a pretext
for discrimination. In his appeal, complainant succeeded in showing
that the members of the DRP were aware of his prior EEO activity when
they requested additional information in his case. Complainant, did not
show by a preponderance of the evidence, however, where the request for
additional information was driven by discriminatory animus as opposed to
the agency's asserted reason that it wanted to ensure that the candidates
it voted into the selection pool were suitable for the Deputy Marshal
position. It may be argued that the members of the DRP were overly
cautious when the ordered additional information on complainant, and
such arguments may in fact be accurate. However, unless the Commission
finds that the agency's action was prompted by discriminatory animus,
the Commission will not second guess the agency's business judgment in
this matter. See Burdine, 450 U.S. at 259, see also Dorothy Schaeffer
v. Department of Transportation, EEOC Appeal No. 01A10518 (February
14, 2001).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's finding of no
national origin discrimination or reprisal in relation to complainant's
nonselection for the Deputy Marshal position.
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 (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
9/16/02
__________________
Date