07A30014_r
06-02-2004
Peter S. Cardozo, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Peter S. Cardozo v. Department of Homeland Security
07A30014
June 2, 2004
.
Peter S. Cardozo,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.<1>
Appeal No. 07A30014
Agency Nos. 97-4214; 98-4141
Hearing No. 340-99-3268X
DECISION
Following its October 29, 2002 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) finding that the agency retaliated
against complainant when it failed to select him for a GS-13 position and
constructively discharged him, in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
For the following reasons, the Commission reverses the agency's finding
of no discrimination and dismisses complainant's constructive discharge
claim.
Complainant, formerly a customs pilot employed at the agency's San
Diego, California facility, filed formal EEO complaints with the
agency on May 21, 1997 and March 20, 1998, alleging that the agency
had discriminated against him on the basis of age (D.O.B. March 8,
1943), and in reprisal for prior EEO activity when he was not selected
for a GS-13 position in March 1997 and again in October 1997. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an AJ. On April 18,
2000, complainant further raised before the AJ a claim that the agency
subjected him to discrimination on the basis of disability in connection
with the constructive discharge.
The record reveals that complainant began his career as a pilot in
private industry in 1965. In January 1991, complainant filed an
EEO complaint alleging age discrimination after the agency failed
to select him for pilot positions in 1988, 1989, and 1990. In 1991,
complainant was hired by the agency as a GS-11 customs pilot. In 1992,
complainant was promoted to a GS-12 customs pilot. In April and November
1996, complainant testified on behalf of two coworkers at two Merit
Systems Protection Board (MSPB) hearings, one of which involved an age
discrimination claim. On September 17, 1996, complainant applied for
a GS-13 pilot position. The Deputy Assistant Commissioner officially
made the selection based on placement on the best qualified list and the
recommendations of the Aviation Branch Chief. Complainant was on the
best qualified list. The Aviation Branch Chief, who testified that he
was aware of complainant's participation in the MSPB hearings, said that
his recommendations were based exclusively upon evaluations submitted
by instructor pilots and the supervisors of the applicants. On March
4, 1997, the agency selected three applicants for the position, but
complainant was not selected. On October 15, 1997, two more applicants
were selected for the same position, but complainant's name was not on
the best qualified list and he was not selected.
According to the vacancy announcement, the core tasks of the position
consisted of performing as pilot-in-command of a high performance fixed
and/or rotary aircraft while undertaking covert missions, high speed
interceptions, and pursuing aircraft identified as suspected violators of
customs-related laws. The position also involved working as an armed law
enforcement officer who conducts searches and makes arrests and seizures.
Complainant had twenty years of law enforcement experience and possessed
a Federal Aviation Administration airline transport certificate with 4,660
flying hours. Three pilots who had worked with complainant testified that
he was an excellent pilot, and an instructor pilot testified that he was
a good pilot. A former customs pilot testified that a supervisor once
told him complainant �would never be promoted because of the �stink' made
to come on board.� Complainant also testified that the same supervisor
told him on two occasions that there had been a deal not to promote him
to a GS-13 position. The supervisor denied that he made the alleged
statements. Complainant testified that he was regularly referred to
by coworkers with ageist epithets, such as �gramps,� �old man,� �old
timer,� �and geezer,� and that in October 1997, someone wrote �you &
your gun are old, worn out and don't work� next to his name on a board.
Complainant's supervisors testified that they did not recommend
complainant because of complainant's reluctance to perform surveillance
missions, lack of technical skill/technical knowledge, and problems
with operating switches. The supervisors further testified that
they did not recommend complainant because he did not volunteer much,
frequently tried to avoid flying the C-210 aircraft, and only possessed
minimum qualifications. However, complainant received an �excellent�
performance evaluation during the period preceding the selections.<2>
The Branch Chief testified that he did not include complainant on the
selection roster submitted on December 13, 1996 to the Deputy Assistant
Commission because none of the flight instructors or supervisors
recommended complainant for the position. On March 18, 1997, the Branch
Chief prepared a memorandum documenting the bases for his recommendations,
which he testified were
based on verbal evaluations made in December 1996 from the instructor
pilots and supervisors. The Branch Chief also prepared a memorandum
in September 1997 documenting the bases for his recommendations for
the second round of selections. The Branch Chief requested narrative
evaluations of all applicants on the best qualified list from the
instructor pilots and supervisors. Complainant's name was not on the list.
The instructor pilots and supervisors testified that they did not know
why complainant was not included on the best qualified list.
Following a hearing, the AJ found that the agency did not discriminate
against complainant on the basis of age when it failed to select him for a
GS-13 pilot position, but did retaliate against him for his participation
in EEO activity. The AJ also found that the agency retaliated against
him when it constructively discharged him. The AJ further found that
complainant failed to demonstrate that the agency perceived him as
having a visual impairment (Presbyopia) that substantially limited him
in a major life activity.
The agency's final order rejected the AJ's finding that the agency
retaliated against complainant when it failed to select him for a GS-13
position and constructively discharged him. On appeal, the agency argues
that the AJ's finding that the agency failed to proffer persuasive reasons
why it did not select complainant is not supported by substantial evidence
in the record. The agency points out that supervisors testified that
complainant had deficiencies in technical skill, cockpit management,
surveillance management, and overall attitude that made him less
qualified for the position. The agency further maintained that in
1996, a supervisor in his notes documented that complainant had been
counseled for failing to keep abreast of scheduling changes and failure
to report to work on time. The agency further argues that the AJ erred
when she allowed complainant to amend his complaint to add the claim of
constructive discharge although complainant had elected to pursue this
matter with the MSPB.
Nonselection
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Regarding complainant's retaliation claim, a complainant can 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 or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she 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). The nexus may be shown
by evidence that the adverse action followed the protected activity
within such a period of time and in such a manner that a reprisal
motive may be inferred. Simens v. Department of Justice, EEOC Request
No. 05950113 (March 28, 1996) (citations omitted). The Commission's
policy on retaliation prohibits any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in a protected activity. See EEOC Compliance
Manual Section 8, "Retaliation" No.915.003 at pp. 8-13 (May 20, 1998).
Complainant established that he engaged in EEO activity in 1991 and
1996. The Branch Chief testified that he was aware of complainant's
EEO activity. The agency subjected complainant to adverse treatment when
it failed to select complainant for a GS-13 pilot position in March and
October 1997. Complainant alleged that shortly after his March 1997
nonselection, a supervisor told him that he would never be promoted
because of the "stink" he �made to come on board�. Complainant further
maintains that the supervisor also told him that there had been a deal not
to promote him to a GS-13 position. We find that these alleged comments
after complainant's March 1997 nonselection create a nexus between his
nonselection and his prior EEO activity from which a retaliatory motive
can be inferred. Consequently, we find that complainant established a
prima facie case of retaliation.
Turning to the legitimate, non-discriminatory reasons proffered by the
agency for its actions, the agency maintained that it did not select
complainant because he lacked the mechanics, judgment, and attitude
required to be a GS-13 pilot. However, we note that the alleged
deficiencies in complainant's qualifications referenced by the agency
were only documented in the personal notes of one supervisor. There is
no indication in the record that complainant received any written
feedback documenting the alleged deficiencies from his supervisors.
Moreover, complainant had far more combined law enforcement and flying
experience than the selectees and possessed the highest civil flight
rating available. In contrast, one selectee had no law enforcement
experience, and three of five selectees had less total flying hours
than complainant. Finally, we find it significant that complainant's
name was left off the best qualified list submitted to supervisors for
evaluation for a second round of GS-13 selections, yet agency officials
were unable to explain why.
The AJ found that this evidence established that the agency's explanation
was a pretext for retaliation. In Reeves v. Sanderson Plumbing Products,
Inc., 120 S.Ct. 2097 (2000), a unanimous Supreme Court held that evidence
showing that the employer presented a false reason for a challenged action
is sufficient in most cases to support a finding of discrimination.
In this case, we find, as did the AJ, that complainant has met his
burden in establishing that the agency's articulated reasons for his
non-selection, viz., that he was deficient in technical skill, cockpit
management, surveillance management, and overall attitude, were pretext
to disguise discrimination based on reprisal.
Constructive Discharge
After informing the agency that he suffered from an eye condition
(Presbyopia), the agency relieved complainant of all pilot duties on
October 8, 1997 and reassigned him to surveillance duties. On May 1,
1998, the agency informed complainant that he had been found unfit for
duty as a pilot and stated that he must either seek reassignment or
disability retirement. In June 1998, complainant elected to retire
effective August 17, 1998.
In December 1998, complainant appealed his �constructive discharge�
to the MSPB. In a decision dated February 4, 1999, the MSPB dismissed
complainant's appeal as an untimely appeal. Complainant then raised his
�constructive discharge� before an AJ on April 18, 2000, as a request
to amend his complaints filed May 21, 1997 and March 20, 1998.
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person
may elect to initially file a mixed case complaint with an agency or may
file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. �
1201.151, but not both. 29 C.F.R. � 1614.302(b). Moreover, whichever
is filed first shall be considered an election to proceed in that forum.
See Dillon v. United States Postal Service, EEOC Appeal No. 01981358
(December 23, 1998)(citing Milewski v. United States Postal Service,
EEOC Request No. 05920429 (June 11, 1992)).
In this matter, complainant appealed his constructive discharge claim to
the MSPB prior to raising it within the EEO process. Although the MSPB
appeal was dismissed as untimely, complainant's election to pursue his
claim of constructive discharge with the MSPB was not extinguished; thus,
complainant is precluded from pursuing the same matter through the EEO
process. Therefore, we find that the AJ improperly allowed complainant
to amend his complaint to include the claim of constructive discharge.<3>
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
directs the agency to take remedial action in accordance with this
decision and the Order set forth below.
ORDER
The agency shall provide complainant with the following remedial relief:
The agency shall retroactively promote complainant to a GS-13 pilot
position, retroactive to the effective date of the March 4, 1997
selections for the GS-13 promotions.
The agency shall determine the appropriate amount of back pay owed to
complainant (with interest), which shall equal the differential between
complainant's salary as a GS-12 and that of a GS-13 for the period from
the effective date of the March 4, 1997 selections until he retired
effective August 17, 1998.
The agency shall take corrective, curative, and preventative actions to
ensure that violations of federal EEO law will not recur, including, but
not limited to, providing training in employment discrimination law for
the agency officials involved in the decision not to promote complainant.
The Commission does not consider training to be a disciplinary action.
The agency shall consider taking appropriate disciplinary action against
the responsible management officials. The Commission does not consider
training to be disciplinary action as noted above. The agency shall
report its decision to the compliance officer. 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. If any
of the responsible management officials have left the agency's employ,
the agency shall furnish documentation of their departure date(s).<4>
POSTING ORDER (G0900)
The agency is ordered to post at its San Diego, California facility 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.
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 (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:
______________________________ __June 2, 2004___________
Stephen Llewellyn Date
Acting Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of the ADEA has occurred at the agency's San Diego, California
facility (hereinafter this facility).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have retaliated against an employee when he was
not selected for a promotion. The facility was ordered to retroactively
promote the employee with back pay and interest. This facility will
ensure that officials responsible for personnel decisions and terms and
conditions of employment will abide by the requirements of all federal
equal employment opportunity laws and will not retaliate against employees
who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1 The complaint herein was originally filed against the Department
of Treasury, U.S. Customs Service. The U.S. Customs Service is now a
component of the Department of Homeland Security.
2We note that applicants only submitted performance evaluations for the
preceding year.
3We note that during the hearing, the agency objected to the AJ's decision
to amend his complaint to include the constructive discharge claim.
The AJ did not address the agency's request to procedurally dismiss
this matter and responded that the agency's objections should instead
be raised by the agency on appeal to the Commission.
4We note that because complainant prevailed on a reprisal claim under the
Age Discrimination in Employment Act, he is not entitled to compensatory
damages and attorney's fees. LaForte v. Secretary of the Interior,
EEOC Appeal No. 01986877 (August 30, 2001).