07A20097
09-04-2003
Virginia A. Vasquez, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
Virginia A. Vasquez v. Department of Homeland Security
07A20097
09-04-03
.
Virginia A. Vasquez,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency. <1>
Appeal No. 07A20097
Agency No. I-99-W128
Hearing No. 350-AO-8298X
DECISION
Following its June 6, 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 discriminated
against complainant on the basis of reprisal. The agency also requests
that the Commission affirm its rejection of the AJ's order to award
compensatory damages in the amount of $1,200 and attorney's fees in
the amount of $7,308.75. Complainant also filed a timely appeal of the
agency's final order. Complainant requests that the Commission affirm
the AJ's finding that the agency retaliated against her. Complainant also
requests that the AJ's decision finding no discrimination as to her other
claims, denial of her costs, and the AJ's determination of attorney's
fees, be reversed. For the following reasons, the Commission reverses
in part and affirms in part the agency's final order.
BACKGROUND
Complainant, an Attorney employed at the agency's Office of District
Counsel, Phoenix District Office facility, filed a formal EEO complaint
with the agency on August 18, 1999, alleging that the agency had
discriminated against her on the bases of national origin (Hispanic),
sex (female), and reprisal for prior EEO activity when:
she was not selected for the position of Deputy District Counsel on or
about February 26, 1999;
she was subjected to a hostile working environment for engaging in
prior EEO activity;
she was retaliated against for engaging in EEO activity when she was
scheduled to appear in court 10 days in April 1999, and her request to
reduce that number to five was not immediately granted, and when the
supervisor called her EEO Counselor to reschedule her appointment due
to a conflict with her work duties.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that complainant failed to establish
discrimination based on national origin, sex discrimination and hostile
work environment with respect to claims #1, #2, and part of #3. The AJ
found, however, that complainant had been discriminated against on the
basis of retaliation when her supervisor interfered with her right to
engage in the EEO process when he rescheduled her appointment with an EEO
Counselor. The AJ found that the supervisor's contact and rescheduling
of complainant's EEO counseling session amounted to interference with
the EEO process. The AJ awarded complainant $1,200 in non-pecuniary
compensatory damages. The AJ also ordered that a claim for attorney's
fees and costs be submitted. The AJ retired before complainant's
attorney's fees issue was decided so the attorney's fees issue was
assigned to another AJ. The AJ awarded attorney's fees in the amount
of $7,308.75, which he decided was for that portion of the complaint
that had been successful. Complainant was not awarded costs because
the attorney failed to provide documentation substantiating costs.
The agency's final order rejected the AJ's decision. On appeal,
the agency maintains that the AJ erred by finding that complainant
was reprised against when her supervisor called the EEO Counselor and
rearranged complainant's meeting time. The agency agreed, however,
with the AJ's finding of no discrimination with respect to all of
complainant's other claims.
On appeal, complainant maintains that the AJ was correct when he
found that she had been subjected to reprisal when her supervisor
rescheduled her meeting with the EEO Counselor. Complainant contends
that her supervisor never asked complainant's permission to contact
the EEO Counselor directly, or to ascertain if she had any objection
to his doing so. She maintains that her supervisor made no attempt to
determine whether other attorneys were available to �cover� and, in fact,
rejected one attorney's offer to do so. Complainant also contends that
the selectee for the position of Deputy District Counsel was pre-selected
for the position. Finally, complainant contends that the AJ erred with
respect to finding no discrimination as to her other claims and erred
when he denied her costs and determined the amount of attorney's fees.
ANALYSIS
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.
Further, the Commission notes that in Crespo v. United States Postal
Service, EEOC Request No. 05920842 (September 17, 1993), the Commission
held that the agency has a continuing duty to promote the full realization
of equal employment opportunity in its policies and practices. This duty
extends to every aspect of agency personnel policy and practice in the
employment, advancement, and treatment of employees. Agencies shall,
among other things, ensure that managers and supervisors perform in
such a manner as to effectuate continuing affirmative application and
vigorous enforcement of the policy of equal opportunity.
Nonselection
Based on a review of the evidence, we find that substantial evidence
supports the AJ's findings as to all claims. With respect to issue #1,
the nonselection, we find the articulated reason given by the agency
for preferring the selectee over complainant was clear and specific and
allowed complainant a full and fair opportunity to demonstrate pretext.
The agency maintained that although complainant had superior immigration
experience, it was not sufficient to overcome the selectee's superiority
in managerial and supervisory experience. Accordingly, the Commission
must determine whether the record establishes that the proffered reasons
were not the true reasons for complainant's nonselection. This can be
established either directly by a showing that a discriminatory reason
more likely motivated the agency or indirectly by a showing that the
proffered explanation is unworthy of credence. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981).
Regarding the subjective nature of the selection process, we note that
the Courts have held that Title VII does not protect against errors in
judgment regarding qualifications, only against decisions motivated
by unlawful animus. Turner v. Texas Instruments, 555 F.2d 1251 (5th
Cir. 1977). Pretext may be demonstrated by showing that complainant's
qualifications are observably superior to those of the selectee. See Bauer
v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Dept. of
Education, EEOC Request No. 05970561 (August 6, 1998). However, the
agency has the discretion to choose from among candidates with different
but equally desirable qualifications so long as the decision is not based
upon an unlawful motivation. Canham v. Oberlin College 666 F.2d 1057
(6th Cir. 1981); and Burdine supra.
After considering the qualifications of complainant and the selectee, we
do not find that complainant's qualifications for the position were so
plainly superior as to require a finding of pretext. Bauer v. Bailar,
647 F. 2d 1037, 1048 (10th Cir. 1981). We find the record does not
reflect that the selection decision was so questionable as to indicate
that reprisal, sex, or national origin discrimination, rather than the
qualifications of the selectee, were the motivation for the selection.
Concerning complainant's claim of preselection, we note that while
evidence of preselection may operate to discredit the employer's
explanation for its employment decision, preselection per se does not
constitute discrimination when it is based on the qualifications of the
preselected individual and not on a prohibited basis. See McAllister
v. United States Postal Service, EEOC Request No. 05931038 (July 28,
1994). The Commission finds, therefore, that even if the selectee was
preselected, this does not indicate that reprisal, sex, or national origin
discrimination were involved in the decision not to select complainant.
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. As such, the Commission, agrees with
the AJ's finding of no discrimination.
Hostile work environment
With respect to issue #2, complainant's hostile work environment claim,
we agree that complainant failed to show that she was subjected to
harassment which was sufficiently severe or pervasive to create a hostile
work environment. The record shows that complainant was subjected to
three incidents of scolding by her supervisor over a three year period.
Considering the nature and limited frequency of the incidents, we agree
that complainant has not shown that she was subjected to a hostile
work environment. Thus, the finding of no discrimination was correct.
Protected EEO activity
With respect to issue #3, the Commission agrees that complainant failed
to establish discrimination based on her national origin, sex, and
reprisal when her request to reduce her days in court from ten days to
five days was not immediately granted. We find the record shows that
complainant's request although not immediately granted was ultimately
granted. Further, we agree that rather than encouraging the realization
of equal employment opportunity in the workforce, the supervisor's
action of rescheduling complainant's meeting with the EEO Counselor,
could have had a potentially chilling effect on the ultimate tool that
employees have to enforce equal employment opportunity � the filing of
an EEO complaint. As such, we find that substantial evidence supports
the AJ's finding that the call made to the EEO Counselor constituted
adverse treatment which was reasonably likely to deter complainant's
protected activity. We are unpersuaded by the agency's argument that it
was the EEO Counselor's idea, and not the supervisor's idea, to reschedule
the meeting. As such, we agree with the AJ's finding of discrimination.
Costs and attorney fees
The Commission also agrees that the AJ properly awarded complainant
compensatory damages in the amount of $1,200 and attorney's fees in the
amount of $7,308.75. The Commission agrees, that complainant's attorney
should have been compensated for only the time spent on the successful
reprisal claim and not the time spent on the three unsuccessful claims.
The Commission also agrees that the AJ was correct in not awarding
costs to complainant because complainant's attorney failed to provide
documentation regarding proof of costs.
Accordingly, we discern no basis to disturb the AJ's findings.
The findings of fact are supported by substantial evidence, and the
AJ correctly applied the appropriate regulations, policies, and laws.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
reverses in part and affirms in part the agency's final order and remands
the matter to the agency to take corrective action in accordance with
this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
(1) Within sixty (60) calendar days of the date this decision becomes
final, the agency shall provide EEO training on the topic of retaliation
against employees who engage in protected activity to the supervisor
identified as being responsible for rescheduling complainant's meeting
with the EEO Counselor.
(2) Within thirty (30) days of the date on which this decision becomes
final, and to the extent it has not already done so, the agency shall
tender to complainant non-pecuniary compensatory damages in the amount
of $1,200 and attorney fees in the amount of $7,308.75.
(3) The agency shall post a notice of the finding of discrimination for
sixty (60) days, as set forth below.
(4) The agency shall consider taking disciplinary action against the
supervisor identified as being responsible for rescheduling complainant's
meeting with the EEO Counselor. The agency shall report its decision.
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 the
discipline.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Phoenix District Office 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
___09-04-03_______________
Date
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 violations
of the Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. (Title VII), 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 Department of Homeland Security, INS facility, Phoenix,
Arizona confirms its commitment to comply with these statutory provisions.
The Department of Homeland Security, INS facility, Phoenix, Arizona
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The Department of Homeland Security, INS facility, Phoenix, Arizona has
been found to have discriminated against an employee based on reprisal.
The Department of Homeland Security, INS facility, Phoenix, Arizona has
been ordered to provide compensatory damages and attorney's fees to the
affected employee and provide training regarding EEO laws under Title
VII to the appropriate supervisor. The Department of Homeland Security,
INS facility, Phoenix, Arizona 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 Department of Homeland Security, INS facility, Phoenix, Arizona
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 16141 The Complaint herein was originally filed against
the Department of Justice, Immigration and Naturalization Service (INS).
INS is now a component of the Department of Homeland Security.