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In 1996, Marcelino Perez, who works for the Defense Logistics Agency in Pennsylvania, applied for, but didn't get, one of several supervisory positions. He contacted his agency's Equal Employment Opportunity Office to protest the decision.

Two months after Perez talked to the EEO counselor, his supervisor rated him "fully successful" on a periodic performance review, a lower grade than the "exceptional" rating Perez had been awarded six months earlier. His supervisor was one of the candidates selected for the job Perez had applied for. Perez, who is Hispanic, said his supervisor had not expressed any concerns about the quality of his work in the time between the two reviews.

Perez then filed an administrative grievance with the agency. As a result, the agency changed his rating from "fully successful" to "highly successful," which is just below "exceptional." But Perez, who had been awarded "exceptional" ratings in 1994 and 1995, filed a complaint against the Defense Department for discriminating against him during the job selection process and retaliating against him on his subsequent performance evaluation.

An administrative judge decided that the agency had retaliated against Perez on his performance evaluation, but had not discriminated against him when he wasn't chosen for one of the supervisory positions. The selecting official testified that Perez was not chosen because he had been suspended for five days on grounds of sexual harassment and allegedly tried to take credit for a co-worker's idea.

The agency accepted the judge's decision on the discrimination portion of the complaint, but rejected the finding of retaliation. When Perez appealed to the Equal Employment Opportunity Commission, the commission upheld the administrative judge's decision, and directed the DLA to change Perez' performance rating from "highly successful" to "exceptional" and retroactively award him any applicable bonuses or benefits. The EEOC also directed the agency to expunge from Perez' record any negative references to his performance during the period in question.

"While a 'highly successful' rating may be a favorable one, it is nonetheless lower than an 'exceptional' rating and therefore qualifies as an adverse action," the EEOC's decision said.

Marcelino S. Perez v. Defense Department, EEOC (Appeal No. 01990218), April 4, 2002.

Customs Discrimination Suit

Hispanic agents at the Customs Service filed a class action suit against the government last week alleging discrimination and unfair promotion practices dating back to the 1970s.

The suit alleges that at the Customs Service, which is part of the Treasury Department, Hispanic agents received inadequate training, were denied promotions and received disproportionate assignments to dangerous undercover work. The suit also alleges that the department failed to compensate Hispanic agents for their Spanish language ability and had allowed systemic retaliation and harassment to fester at Customs for decades.

About 500 employees have joined the suit, according to Shannon Murphy, a spokeswoman for the law firm Shaffer, Rapaport & Schmidt LLP. The firm is representing the agents.

The Customs Service would not comment on the lawsuit, which was filed in the U.S. District Court for the District of Columbia. "This matter is before the courts, and therefore it would be inappropriate for us to discuss it at this time," the agency said in a statement.

The suit is one of three pending discrimination suits against the Treasury Department. The others involve black agents at the Secret Service and the Bureau of Alcohol, Tobacco and Firearms.

President Bush signed legislation Wednesday requiring agencies that lose or settle discrimination and whistleblower cases pay judgments out of their own budgets. Those judgments are currently paid out of a general government fund.

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