01974697
03-03-1999
Klain W. Garriga, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Klain W. Garriga, )
Appellant, )
) Appeal No. 01974697
v. ) Agency No. 95-63285-002
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the bases of race (Hispanic)<1>, sex (male), age (DOB 2/17/49), and
physical disability (gun shot wounds), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq. Appellant alleges he was discriminated against
when he was not placed on the Promotion Nomination List (LIST) on February
24, 1995, for GS-14 Special Agent positions. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is VACATED and REMANDED.
The record reveals that during the relevant time, appellant was employed
as a GS-1311-13 Special Agent at the Little Creek, Norfolk, Virginia
office of the Activity. On February 1, 1995, the Activity published
General Administrative Message 25A-008, announcing that a Special Agent
Nomination Board (BOARD) would be convened to review and recommend
for a LIST candidates for GS-14 and GS-15 Special Agent positions.
After members of the BOARD considered promotion packages of one hundred
and fifty seven candidates, including appellant, the BOARD recommended,
and the Director approved, the inclusion of nineteen individuals on
the LIST. Appellant was not one of the nineteen selected candidates
for inclusion on the LIST. Of the nineteen candidates recommended,
sixteen were Caucasian males, one was a Caucasian female, and two were
Black males.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on April 25, 1995.
At the conclusion of the investigation, appellant was provided a copy
of the investigative file and informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. Appellant requested that the agency issue a FAD.
In its FAD, the agency concluded that appellant failed to establish
a prima facie case of race discrimination, noting that none of
the selecting officials were aware that appellant was Hispanic,
and that the investigator's conclusion that appellant established a
prima facie case of race discrimination because he was �perceived as
white� was �illogical and inconsistent.� The agency concluded that
�Management's denial of knowing that Complainant was Hispanic cannot be
then transformed into discrimination because he was considered White.�
However, no information about the National Origin of any of the selected
or non-selected candidates was ascertained. See supra footnote 1.
The FAD also concluded that because appellant presented insufficient
evidence that he had a specific physical or mental impairment which
substantially limited one or more major life activities as defined by
the Rehabilitation Act, appellant failed to establish a prima facie case
of disability discrimination.
The FAD then concluded that the agency proffered legitimate,
nondiscriminatory reasons for not including appellant among the candidates
recommended for inclusion on the LIST, namely, that each of the BOARD
members who reviewed the promotion packages consistently stated that while
appellant had significant experience and was a good candidate, his breadth
of supervisory, leadership, or management experience was lacking and he
lacked significant experience in more complex assignments, as compared to
those recommended for inclusion on the LIST. The FAD also noted that an
EEO official was present as a non-voting member of the BOARD, and that he
noted that sex, race, age, and disability data were not readily available
to the BOARD members, and that no discriminatory statements respecting any
of these bases were uttered by any BOARD member. The FAD also noted that
the one female included on the LIST was more qualified than appellant, and
that ten of the nineteen selected candidates were over forty years of age.
Although the FAD concluded that appellant was not as qualified as the
nineteen selected candidates, we note that neither appellant's promotion
package, nor the promotion packages of the nineteen selected candidates,
were made a part of the record. The investigator provided an affidavit
stating that she examined the promotion packages of appellant and the
nineteen selected candidates, and based on her analysis, she concluded
that four of the selected individuals had packages of lesser quality than
that of appellant, and that therefore management's proffered reasons for
not selecting appellant for inclusion on the LIST were pretextual. See
investigative file, pages 69-72. The FAD discounted the investigator's
conclusions, noting that her analysis was incomplete and unclear, and her
conclusions were thus inappropriate and erroneous. The FAD concluded that
appellant failed to demonstrate by a preponderance of the evidence that
he was discriminated against under any of his alleged bases. Appellant
raises similar arguments on appeal to those he raised before the agency.
The agency stands on the record and requests that we affirm its FAD.
After a thorough review of the record, we find that the evidence is
insufficient to allow a determination on the merits of appellant's
allegations of discrimination under any of appellant's alleged bases.
Our regulations and the EEOC Management Directive for 29 C.F.R. Part 1614
require agencies to develop a complete and impartial factual record.
See 29 C.F.R. � 1614.108(b) and EEOC Management Directive for 29
C.F.R. Part 1614, EEO-MD-110, at 5-1 (October 22, 1992). As indicated
in this decision, important records, such as the promotion packages of
appellant and the nineteen candidates selected for inclusion on the LIST,
as well as other information which would buttress or rebut the agency's
stated reasons, such as the National Origin of the candidates referred
to the LIST and the BOARD members, were not included in the record.
See Tyndall v. Veterans Administration, EEOC Appeal No. 01944524
(September 20, 1995). We therefore VACATE the agency's finding of no
discrimination, and REMAND this matter for a supplemental investigation in
accordance with the following ORDER, and the applicable EEOC Regulations.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall ensure that the investigator obtains information
concerning the National Origin of the BOARD members, the nineteen
individuals on the LIST, and the other candidates considered by
the BOARD. The investigator shall prepare a chart detailing the ages,
genders, national origins, and disability status of each of the nineteen
selectees, as well as the other candidates considered by the board.
The agency shall also ensure that the investigator notes any evidence in
appellant's promotion package which demonstrates that the BOARD members
could have known of appellant's Hispanic national origin.
2. The agency shall ensure that the investigator obtain from the agency
copies of the promotion packages of the nineteen selectees included
on the LIST and for appellant. Upon obtaining such information, the
investigator shall review and summarize each selectee's and appellant's
qualifications, which were relevant to the selection process, and
summarize his or her analysis.
3. The agency shall ensure that the investigator permit the appellant
to supplement the record with any documentation which may demonstrate
that he has physical or mental impairments known to the agency and which
substantially limit one or more major life activities.
4. The agency shall ensure that the investigator obtain any other
affidavits, records or statistics not specifically requested in this
ORDER, and not inconsistent with this opinion, which may be relevant in
determining the veracity of appellant's complaint allegations.
5. The agency shall ensure that the investigator complete a supplemental
investigation within one-hundred and twenty (120) calendar days of
the date this decision becomes final. Thereafter, the agency shall
provide the appellant, within thirty (30) calendar days from the date
the agency completes the supplemental investigation, an opportunity to
respond to the supplemental investigative report. The agency shall then
take any action appropriate and consistent with appellant's response,
and issue a new final agency decision within thirty (30) calendar days of
appellant's response or, if appellant fails to respond, within thirty (30)
calendar days following the last day appellant would have been permitted
to respond. Copies of the completed supplemental investigation and
new final agency decision must be submitted to the Compliance Officer,
as referenced below.
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 the
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 the
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. � 1614.604(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 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 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 (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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We note that appellant's complaint, which raised Hispanic as Race
discrimination, is more appropriately designated as National Origin
discrimination. However, the analytical framework utilized under either
classification is the same.