05A00373
03-14-2002
Ralph J. Perez, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Ralph J. Perez v. Small Business Administration
05A00373
3/14/02
.
Ralph J. Perez,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Request No. 05A00373
Appeal No. 01962111
Agency No. 03-93-371
DENIAL OF REQUEST FOR RECONSIDERATION
The Small Business Administration timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Ralph J. Perez v. U.S. Small Business Administration, EEOC
Appeal No. 01962111 (January 11, 2000). EEOC Regulations provide that
the Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
BACKGROUND
Complainant was employed as a Business Development Specialist,
GS-1101-12, with the Minority Business Development Agency, of the
Department of Commerce, in New York when he filed the instant complaint.
Complainant alleged in his complaint that because of his National Origin
(Puerto Rico), he was not selected for several supervisory positions
with the Small Business Administration (hereafter SBA or agency) between
1990 and 1992. Specifically, complainant alleged that in June 1990,
he was not selected for a Deputy Assistant position advertised under Job
Opportunity Announcements (JOA) #90-39, in April 1991, he was not selected
for a Deputy Regional Administrator position advertised under JOA #91-12,
in March 1992, he was not selected for a Deputy Regional Administrator
position advertised under JOA #DRA-01, and on an unspecified date,
he was not hired for the position of Branch Manager, GM-340-14, in the
agency's New York District Office.
In its previous decision, the Commission held that complainant was
untimely in challenging his non-selection for positions advertised under
JOA #90-39, JOA #91-12 and JOA #DRA-01. With respect to the Branch
Manager position, however, the Commission found that complainant made a
timely challenge of his non-selection for this position. Addressing the
merits of this non-selection, the Commission held that the agency's
re-advertising of the Branch Manager position, in search of someone
with �banking experience,� was highly suspect, since such experience
was not listed in the vacancy announcement that it used to re-advertised
the position. Ultimately, the Commission found that the agency engaged
in discriminatory actions when it denied complainant the opportunity
to compete for the Branch Manager position by limiting the qualified
applicants to SBA employees.
In its request for reconsideration, the agency contends that the
Commission erred when it held that it cancelled JOA #92-09 for
discriminatory reasons. As such, the agency argues that complainant's
qualifications' were not �observably superior� to those of the other
candidates and the person ultimately selected for the Branch Manager
position. The agency also argues that in reaching its finding of
discrimination, the Commission failed to apply the proper standards and
burdens of proof enunciated in McDonnell Douglas and its progeny.<1>
In this regard, the agency argues that complainant was not similarly
situated to the Selectee because she was not selected from the same list
of eligibles on which complainant's name appeared as a result of the JOA
#92-09 Vacancy Announcement. The agency also argues that the Commission
failed to require complainant to show pretext by a preponderance of
the evidence.
In responding to the agency's request for reconsideration, complainant,
through his attorneys, argues that the agency's request fails to meet the
criteria specified for reconsideration in the pertinent EEOC regulations,
and he asked that the Commission's previous decision be affirmed.
ANALYSIS AND FINDINGS
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The brief submitted
by the agency, in support of its request articulated a stronger
rationale justifying the challenged agency action than that developed
in the EEO investigation. The statement of the District Director and
the unsigned statement of the Regional Director submitted during the
agency's investigation were fairly vague and evasive of the reason why
they decided to re-announce the Branch Manager position and limit the
field of applicants to only agency employees.<2> If, in fact, the
main reason was that the managers wanted to get someone with banking
experience, then it was clearly demonstrated in our previous decision that
complainant had such experience. In our previous decision, we properly
focused on the reason for cancelling the initial Vacancy Announcement,
rather than on the qualifications of the complainant and applicants
for the Branch Manager position. In this respect, our reliance on
the decision in Jerry Strain v. United States Postal Service was well
placed.<3> Moreover, we observe that a request for reconsideration is
not a second chance to raise arguments and evidence which were available
to the agency and should have been raised on appeal. We also note
that although the requirement that a complainant apply for a contested
position is generally part of the prima facie case formulation, there
are instances where failing to apply will not defeat a prima facie case,
in situations such as this one. See Mabel Y. Ford v. Department of
Health and Human Services, EEOC Appeal No. 01956161 (May 30, 1997).
It was established in McDonnell Douglas that a prima facie case may be
established in selection cases if there are facts, which otherwise left
unexplained, could lead one to conclude that the action was based on
discriminatory motives. See McDonnell Douglas at 793. The decision
in EEOC Appeal No. 01962111 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial actions:
1. The agency shall offer complainant the position of Branch Manager,
GM-340-13/14, or a substantially equivalent position, as of the effective
date of the selection under the subsequent Vacancy Announcement JOA
#92-08. Complainant shall also be awarded back pay, seniority and other
employee benefits from that date.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. 1614.501), no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back pay
and/or benefits, the agency shall issue a check to the complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant may
petition for enforcement or clarification of the amount in dispute. The
petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. Complainant is entitled to an award of reasonable attorney's fees
incurred in the processing of the claim (including appeals) regarding
the discriminatory recission and readvertisement of the Branch Manager
position.
3. The agency shall conduct an investigation into what compensatory
damages appellant may be entitled to as a result of the disability
discrimination. See Jackson v. United States Postal Service, EEOC
Appeal No. 01923399 (November 12, 1992), request to reopen denied, EEOC
Request No. 05930306 (February 1, 1993); Carle v. Department of Navy,
EEOC Appeal No. 01922369 (January 5, 1993). The agency shall afford
appellant sixty (60) days to submit additional evidence in support
of his claim for compensatory damages. Within sixty (60) days of its
receipt of appellant's evidence, the agency shall issue a final decision
determining appellant's entitlement to compensatory damages, together
with appropriate appeal rights. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled, "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its New York District Office, Melville,
New York 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
3/14/02
__________________
Date
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 Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at 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.
The Small Business Administration, New York District Office, Melville,
New York, supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The Small Business Administration, New York District Office, Melville, New
York, has remedied the employee affected by the Commission's finding by
retroactively awarding him a Branch Manager, GS-13/14, position, with back
pay and benefits and by remanding for a supplemental investigation into
compensatory damages. The Small Business Administration, New York District
Office, Melville, New York, 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.
The Small Business Administration, New York District Office, Melville,
New York, 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 See McDonnell Douglas v. Green, 411 U.S. 792 (1973).
2 At this juncture, we take cognizance of complainant's argument that
he in fact received the highest rating on the best qualified list of
those candidates found to be qualified for the branch Manager position
as a result of JOA #90-12. See Report of Investigation (ROI) Ex. 18B.
3 EEOC Appeal No. 01921225 (November 30, 1992).