Jose L. Diaz, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionSep 16, 2002
01A11972 (E.E.O.C. Sep. 16, 2002)

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