Nicasio O. Flores, Complainant,v.Elaine Chao, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionSep 19, 2002
01A13057 (E.E.O.C. Sep. 19, 2002)

01A13057

09-19-2002

Nicasio O. Flores, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.


Nicasio O. Flores v. Department of Labor

01A13057

September 19, 2002

.

Nicasio O. Flores,

Complainant,

v.

Elaine Chao,

Secretary,

Department of Labor,

Agency.

Appeal No. 01A13057

Agency Nos. 00-11-009;

00-11-010;

00-04-011;

00-06-012;

00-05-013;

00-09-014;

00-03-085

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 the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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

employed as a District Director, GS-14, at the agency's Employment

Standards Administration, Wage and Hour Division in the San Antonio, Texas

District Office. Complainant sought EEO counseling and subsequently

filed six formal complaints on October 5, 1999, alleging that he was

discriminated against when:

(1) on the bases of his national origin (Hispanic), sex (male),

and age (age 58, D.O.B. May 7, 1942), he was not selected for the

Deputy Executive Secretary for Operations, GS-0301-15 position,

Vac. No. EXEC-SECY-99-014 (Complaint No. 00-11-009);

on the bases of national origin, age and reprisal for prior EEO activity,

he was not selected for the Senior Executive Candidate Program,

CD-0301-00, Vac. No. SES-99-21 (Complaint No. 00-11-010);

on the bases of national origin, age and reprisal, he was denied

promotion to the Deputy Regional Administrator position in Atlanta,

Vac. No. ESA-99-21 (Complaint No. 00-04-011);

on the bases of national origin, age and reprisal, he was denied

promotion to the Deputy Regional Administrator position in Dallas,

Vac. No. ESA-99-26 (Complaint No. 00-06-012);

on the bases of national origin, age, sex and reprisal, he was denied

promotion to the Deputy Regional Administrator position in Chicago,

Vac. No. ESA-99-22 (Complaint No. 00-05-013);

on the bases of national origin, age, and reprisal, he was denied

promotion to the Deputy Regional Administrator position in San Francisco,

Vac. No. ESA-99-31 (Complaint No. 00-09-014).

Complainant filed his seventh formal complaint on March 24, 2000,

alleging that he was discriminated against when:

on the bases of national origin, age, and reprisal, he was denied

promotion to the Deputy Regional Administrator position in Philadelphia,

Vac. No. ESA-99-60 (Complaint No. 00-03-85).<1>

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.

The FAD found, as to issue one, that complainant failed to establish a

prima facie case of discrimination because he was not treated disparately

from other similarly situated candidates, outside of his protected

classes. The FAD also stated that the selectee had �managed caseloads and

dealt with backlogs in the past, and her application also demonstrated

a sophisticated degree of customer service approval and organizational

culture change management which was required for the position.� As to

issues two through seven, the FAD appears to have assumed, arguendo,

that complainant established a prima facie case of discrimination, and

then found that the agency articulated legitimate, nondiscriminatory

reasons for its action. Specifically, as to issue two, complainant's

score was a 77, compared to numerous candidates who received scores

of 92 or higher, and only their names were referred for consideration.

As to issue three, the selecting official stated that the selectee �best

fits the current needs of the region.� As to issue four, the FAD found

that although complainant and the selectee both demonstrated abilities to

establish program goals and objectives and work toward accomplishing the

mission of Wage and Hour, the selectee contributed to the development

and implementation of the strategic plan, established relationships

with external groups under more difficult circumstances, took over a

problem office and improved morale and productivity, provided excellent

communication skills at all levels, internal and external, and earned

the respect of staff essential to accomplishing the work.

As to issue five, the FAD found that the selectee's supervision of

the Houston District had been �superb, including guiding the strategic

planning, and she had a wealth of knowledge, organizational and effective

communication skills and a breadth of experience and headquarters'

perspective� which the selecting official was looking for. As to issue

six, the selecting official stated that he was looking for someone who

was experienced in the garment and agricultural industries, which are

the major enforcement programs in the Western Region. Additionally,

he asserted that he wanted someone who had excellent person-to-person

skills. The selecting official found the selectee better qualified than

complainant, and cited the selectee's experience. As to issue seven,

the selecting official was not persuaded that complainant was more

suitable for the position than the selectee, and cited, among other

factors, the selectee's �extraordinary� interpersonal skills, and the

fact that his office is one of the most efficiently run in the country.

The FAD concluded that complainant failed to establish that the agency's

reasons were pretexts for discrimination.

On appeal, complainant restates his argument that his qualifications

are superior to many of the selectees, not in his protected classes.

Complainant additionally asserts that it is noteworthy that �the overall

approving official for all of the GS-15 and above positions was [the

Assistant Secretary], a Black male, who along with a group of White

SES types, was actively involved in developing and promoting Black and

White candidates to GS-15 and SES promotions to my detriment and other

qualified Hispanic applicants.� (Complainant's Statement in Support of

Appeal, p. 2). The agency request that we affirm the FAD.

As an initial matter we note that, as this is an appeal from a FAD

issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the

agency's decision is subject to de novo review by the Commission. 29

C.F.R. � 1614.405(a). Under the ADEA, it is "unlawful for an employer

... to fail or refuse to hire or to discharge any individual or

otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because

of such individual's age." 29 U.S.C. � 623(a)(1). When a complainant

alleges that he or she has been disparately treated by the employing

agency as a result of unlawful age discrimination, "liability depends

on whether the protected trait (under the ADEA, age) actually motivated

the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,

610 (1993)). "That is, [complainant's] age must have actually played a

role in the employer's decisionmaking process and had a determinative

influence on the outcome." Id.

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

He must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

Assuming, arguendo, that complainant established a prima facie case

of discrimination as to all of the issues<2>, we turn to the agency to

articulate legitimate, nondiscriminatory reasons for its actions. As to

issue one, the selecting official asserted that a staffing specialist in

Personnel (P1) told him that two certificates would be developed for the

position, and that he would first be provided with the Delegated Examining

certificate, and if he did not make a selection from that certificate,

he would be given the merit promotion certificate. See Record of

Investigation (ROI), Tab F-3, at p. 2. The selecting official stated

that complainant's name was not on the Delegated Examining certificate,

and he selected the selectee from that certificate. Id. P1 stated that

complainant was considered only under the merit promotion announcement,

and a certificate was not issued under that announcement. Id., at

Tab F-5, p. 2. Therefore, we find that as to issue one, the agency

met its burden of articulating a legitimate, nondiscriminatory reason.

We find that the agency also met its burden as to the remaining issues,

in that management listed certain personal qualities, performance and/or

experience of the selectees and asserted that they were not possessed

to the same extent by complainant.

In an attempt to establish pretext, complainant argues that management has

a history of failing to promote Hispanics to GS-15 and above positions.

He contends that management has intentionally failed to select him for the

promotions at issue in favor of less qualified individuals, not in his

protected classes. After a careful review of the record, we find that

despite complainant's excellent qualifications, he has not established,

by a preponderance of the evidence, that the agency's reasons for the

nonselections at issue are pretexts for discrimination or retaliation.

In so finding, we further note that the evidence of record fails to

indicate that complainant's age actually played a role in the employer's

decision-making process and had a determinative influence on the outcome.

The agency has broad discretion to set policies and carry out personnel

decisions, and should not be second-guessed by the reviewing authority

absent evidence of unlawful motivation. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the

Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may

be able to establish pretext with a showing that his qualifications

were plainly superior to those of the selectee. Wasser v. Department of

Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,

647 F.2d 1037, 1048 (10th Cir. 1981). Complainant has not persuaded the

Commission that his qualifications rose to the level of being plainly

superior to the selectees.

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 affirm the agency's

final decision.

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

September 19, 2002

__________________

Date

1 We note that by letter, dated January 13, 2000, the agency indicated

that, in response to complainant's letter of January 3, 2000, it had

amended complainant's complaint. It additionally stated �your request

to amend the continuing violation date of June 1999 to September 1995 is

denied.� On appeal to the Commission, complainant has not challenged

the dismissal of the portion of his complaint alleging a continuing

violation between 1995 and 1999. Therefore, the matter will not be

specifically addressed in the instant decision.

2 We note that the record indicates that two Hispanic males, over the

age of 40, were selected for the position in issue two.