01990248
04-19-2002
Rocco Morelli, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Immigration & Naturalization Service, Agency.
Rocco Morelli v. Department of Justice - INS
01990248
04-19-02
.
Rocco Morelli,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Immigration & Naturalization Service,
Agency.
Appeal No. 01990248
Agency Nos. I-88-5560, I-88-5562, I-88-5636, I-89-5700,
I-90-5769, I-90-5813, I-90-5866, I-90-5877,
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, as amended, 42
U.S.C. � 2000e, et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant filed nine complaints in which he claimed that
the agency discriminated against him on the bases of national origin
(Italian-Argentinian) and reprisal for previous EEO activity by not
selecting him for nine managerial, supervisory, or senior investigative
positions between 1988 and 1990. The nine complaints are identified
as follows:
Complaint No. I-88-5560 - February 23, 1988 - (Complaint 1) - VA # 87-45,
Deputy District Director, Phoenix, Arizona.
Complaint No. I-88-5562 - February 22, 1988 -(Complaint 2) - VA # 87-76,
Supervisory Special Agent, New York, New York.
Complaint No. I-88-5636 - December 23, 1988 -(Complaint 3) - VA # 88-63,
Assistant Officer-in-Charge, Rome, Italy.
Complaint No. I-89-5700 - June 20, 1989 -(Complaint 4) - VA # 89-10,
Assistant District Director, New York City.
Complaint No. I-90-5769 - February 5, 1990 -(Complaint 5) - VA # 89-30,
GS-14 Criminal Investigator.
Complaint No. I-90-5813 - July 10, 1990 -(Complaint 6) - VA # 90-14,
Deputy District Director, Rome, Italy.
Complaint No. I-90-5866 - November 13, 1990 -(Complaint 7) - VA # 90-67,
Supervisory Special Agent, New York City.
Complaint No. I-90-5877 - December 12, 1990 -(Complaint 8) - VA # 90-55,
Deputy District Director, San Juan, Puerto Rico.
Complaint No. I-90-5879 - December 12, 1990 -(Complaint 9) - VA # 90-68,
Supervisory Investigator, Miami, Florida.
The agency accepted these nine complaints and consolidated them
for investigation. After conducting two investigations, the agency
notified complainant of his right to request a hearing before an
Administrative Judge. Complainant did not respond to the notice, and
accordingly, the agency issued its final decision, in which it found no
discrimination with respect to complaints (1), (2), (5), (6), and (8),
but did find discrimination with respect to complaints (3), (4), (7),
and (9). The agency awarded equitable relief, including retroactive
promotion to GS-14, back pay and other benefits, and attorneys fees.
The agency also agreed that it would post the appropriate notice.
On appeal, complainant raises three contentions. First, he challenges
the agency's no-discrimination finding on complaints (1), (2), (5), (6),
and (8). Next, he maintains that he should have been awarded retroactive
promotion to GS-15 for at least one year. Finally, he appears to be
asking for compensatory damages, in the form of lost moving expenses
and housing allowances, tuition for his children, and compensation for
losing the opportunity to move to a jurisdiction in which he would not
have had to pay taxes.
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, namely that
complainant was not the best-qualified candidate for the positions in
question. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). With respect to Complaint (1), members
of the review panel who evaluated the candidates for Vacancy No. 87-45
stated that, because complainant was not promoted to GS-13 until June
of 1987, he did not meet the time-in-grade requirements for promotion
to GS-14 in February 1988, when the vacancy opened. As to Complaint
(6), the cut-off score for inclusion in the best-qualified list was 81,
while complainant's score was 74. Regarding the vacancies at issue in
the remaining complaints, the record establishes that, while complainant
made the best-qualified lists for each of those positions, the selecting
officials chose other candidates. We find that the reasons given by the
selecting officials for their choices are legitimate, nondiscriminatory,
and fully supported by the record.
To ultimately prevail, complainant must prove, by a preponderance
of the evidence, that the agency's explanations for not selecting
him were pretexts designed to hide a discriminatory or retaliatory
motivation. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(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). Complainant should bear in mind that agencies generally have
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. Vanek v. Department of the Treasury,
EEOC Request No. 05940906 (January 16, 1997); Kohlmeyer v. Department
of the Air Force, EEOC Request No. 05960038 (August 8, 1996); Burdine,
450 U.S. at 259. Disbelief of the agency's articulated reasons alone does
not compel a finding of discrimination as a matter of law, but disbelief
of the reasons put forward by the agency, together with the elements of
the prima facie case, may suffice to show intentional discrimination.
Hicks, 509 U.S. at 511; EEOC Enforcement Guidance on St. Mary's Honor
Center v. Hicks (April 12, 1994); Huerta v. Department of the Air Force,
EEOC Request No. 05930802 (April 1, 1994). Complainant may satisfy this
burden by showing that his qualifications for the various positions were
plainly superior to those of the selectees. 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 done so, nor has he identified any other means by
which pretext could be established. Instead, he merely states that
he appeals from that portion of the final decision which stated, �the
totality of the record fails to sustain his claims of national origin or
reprisal when he was not selected for any of the vacancies at issue in
complaints (1), (2), (3), (5), (6), and (8).� With regard to complaints
(1) and (6), complainant has not presented any documents or sworn
statements tending to show that he was excluded from the best-qualified
lists for the Phoenix and Rome positions for any reason other than his
lack of sufficient time-in-grade experience for the former and his review
panel rating for the latter. With respect to the other complaints, the
agency provided evidence sufficient to support its determination that the
various selectees had the edge over complainant in terms of qualifications
for the position. The qualifications of the selectees were extensively
documented. For example, the selectee for the supervisory special agent
position in New York had supervised 15 agents for fifteen months, and had
headed a task force for several years before that. The selectee for the
coordinator position, also in New York, had supervised between 10 and
20 agents as an acting supervisor for approximately two years, and had
been given ratings of outstanding in his three most recent performance
evaluations. Moreover, this selectee had provided information in his
application which was specifically tailored to the selection criteria,
whereas complainant's application merely described his investigative
experience but did not address those criteria. In the same vein, the
selectee for the deputy district director position in Puerto Rico had 12
years of general management experience, 7 years of management experience
in a similar position, knowledge of program management, and demonstrated
ability to manage resources. Based upon our review of the record,
we agree with the agency that complainant has not met his burden of
proving that the agency's articulated reasons for not selecting him for
any of the above-referenced positions were pretextual. We now address
complainant's claims regarding the adequacy of relief granted.
Once discrimination is found, the agency is required to make complainant
"whole" by restoring him to a position where he would have been were it
not for unlawful discrimination. Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418 (1975). Where, as here, the agency's discriminatory actions resulted
in complainant's failure to attain a promotion, complainant is entitled
to receive a promotion retroactive to the date of the discriminatory
nonpromotion, as well as back pay for up to two years prior to the date
that he filed his discrimination complaint. 29 C.F.R. � 1614.501(c)(1).
In this case, complainant was notified that he was not selected for
Vacancy Announcement # 88-63 on December 14, 1988, and filed Complaint
# I-88-5636 two days later. The back pay period therefore begins on
December 14, 1988, and ends on the effective date of his voluntary
resignation, which according to information available in the record,
occurred in December of 1997. He is likewise entitled to interest on
his back pay award, but the period for which interest is computed runs
from November 21, 1991, the effective date of the Civil Rights Act of
1991 which authorized interest on back pay awards, to the date of his
effective resignation. See Landgraf v. USI Film Products, 511 U.S. 244
(1994).
On appeal, complainant contends that he should have been retroactively
promoted to GS-15, and awarded commensurate back pay, for at least one
year prior to his resignation. To sustain such a claim complainant must
show that he would have been given a promotion to GS-15 if he had gotten
the GS-14 position, either competitively or through the career-ladder
promotion process. Complainant points to no evidence in the record
tending to show either that he was entitled to a career-ladder promotion
or that, in a non-career-ladder track, his performance was likely to
merit a promotion to GS-15. Without such evidence, any assumption that
complainant would have received a promotion beyond GS-14 is speculative
at best. See Ritchie v. United States Postal Service, EEOC Request
No. 05980501 (February 11, 1999). Accordingly, we find that complainant
has not shown that he is entitled to retroactive promotion to GS-15.
Complainant also contends on appeal that he is entitled to compensation
for lost moving expenses, housing allowances, tuition expenses for his
children, and compensation for having lost the opportunity to move to
a tax-free jurisdiction as a result of not being selected for the Rome
position advertised in Vacancy # 88-63. The Supreme Court held that the
compensatory damages provision of the Civil Rights Act of 1991 was not to
be retroactively applied to pre-Act conduct and would preclude an award
of compensatory damages for any acts of alleged discrimination occurring
prior to November 21, 1991. Landgraf, supra. Since the acts complained
of occurred between December of 1988 and December of 1990, before the
effective date of the Civil Rights Act of 1991, complainant would not be
entitled to compensatory damages in connection with those acts. McCaskill
v. Department of the Army, EEOC Request No. 05940312 (January 6, 1995);
Laverdure v. Department of Interior, EEOC Request No. 05931186 (June 14,
1994). Consequently, complainant is not entitled to moving expenses,
housing allowances, tuition reimbursement, or compensation for having
to pay taxes.
After a review of the record in its entirety, it is the Commission's
decision to affirm the agency's final decision and to award relief in
accordance with our order below.
ORDER (D0900)
Unless it has already done so, the agency is ordered to take the following
remedial action:
The agency shall determine the appropriate amount of back pay, with
interest and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. For the purpose of computing back pay and
benefits due complainant, the agency shall assume that complainant had
been awarded the position of Assistant Officer-In-Charge, GS-14, in Rome,
Italy, on December 14, 1998, and that he voluntarily resigned in December
1997. Back pay and benefits shall be computed from December 14, 1988
through the effective date of Complainant's resignation in December 1997.
Interest on back pay shall be computed from November 21, 1991, through
the effective date of Complainant's resignation. 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."
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii), he 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.
The agency shall post at its headquarters in Washington, D.C., 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.
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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____04-19-02_____________
Date