0520100196
04-13-2010
Alexander Koudry, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Alexander Koudry,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Request No. 0520100196
Appeal No. 0120080343
Agency No. ED20056900
DENIAL
The agency timely requested reconsideration of the decision in Alexander
Koudry v. Department of Education, EEOC Appeal No. 0120080343 (November
2, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to 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).
The record reveals that on September 6, 2005, complainant filed an EEO
complaint alleging that he was discriminated against on the basis of
disability (Chron's Disease) and in reprisal for prior protected EEO
activity when:
1. On May 25, 2005, complainant received a "successful" rather than
"highly successful" or "outstanding" performance evaluation for the
performance period of May 1, 2004 to April 30, 2005; and
2. On April 13, 2005, complainant was not selected for the position
of Supervisory Management and Program Analyst, GS-15, advertised under
Vacancy Announcement OCIO-2005-0030.
At the conclusion of the investigation of the complaint, complainant
was provided with a copy of the report of investigation and notice
of his right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with complainant's request, the agency issued a
final decision (FAD) pursuant to 29 C.F.R. � 1614.110(b). In its final
decision, the agency found that complainant was not subjected to unlawful
discrimination.
Complainant appealed the final agency decision to the agency.
In a decision dated November 2, 2009, the Commission determined that
complainant established a prima facie case of disability discrimination
and reprisal. The Commission also determined that the agency failed
to set forth, with sufficient clarity, the reasons for complainant's
performance evaluation rating of "successful" such that complainant
had a full and fair opportunity to demonstrate that the agency's
reason was pretextual. Alexander Koudry v. Department of Education,
EEOC Appeal No. 0120080343. The Commission further determined that the
agency failed to provide a sufficient articulation of its reasons for
rating complainant "successful" because the first-line supervisor's
investigative affidavit merely provided a general description of the
evaluation process; broadly stated that complainant performed only at the
"successful" level; and, provided no specific information explaining why
he assigned the "successful" rating to complainant. The Commission also
concluded that the agency did not overcome complainant's prima facie
case of discrimination here because it did not clearly set forth its
reasons for rating complainant "successful."
With respect to claim 2, the Commission found that the agency failed to
overcome complainant's prima facie case of discrimination because the
record did not contain any rating or voting sheets, testimonial evidence,
notes taken contemporaneous with the interviews, sworn declarations,
discovery responses, deposition testimony, or signed written statements
of any person connected with the selection process that explained the
rankings of the candidates and why the selectee was ultimately chosen
but complainant was not selected. The Commission noted that an unsigned
and undated document in the record that summarized the applications of
the selectee and complainant and an affidavit from a supervisor who was
not involved in the selection process were not sufficient to meet the
agency's burden of production.
Consequently, the Commission ordered the agency to revise complainant's
EDPAS performance evaluation for the period May 1, 2004 to April 30,
2005 to reflect an overall "outstanding" performance rating; give an
unconditional written offer to complainant to place him in a GS-15
Supervisory Management and Program Analyst position, or substantially
equivalent position; determine the appropriate amount of back pay and
benefits complainant is entitled to receive; provide Rehabilitation Act
training to the responsible management officials; consider disciplining
the responsible management officials; and, conduct a supplemental
investigation to determine complainant's entitlement to compensatory
damages.
In its request for reconsideration, the agency maintains that the
Commission should remand this matter so that it can supplement the
record with further evidence supporting its actions. The agency further
maintains that the record contains more evidence in support of the
agency's decision not to select complainant than the documents referenced
by the Commission in our previous decision, including the applications of
the selectee and complainant and the best qualified list. Additionally,
the agency contends that it is "troubling" that the Commission presumed
that it discriminated against complainant when it gave him a "fully
successful" rating because "the supervisor's affidavit does not forcefully
oppose all of the complainant's allegations." The agency further argues
that the constraints of conducting an investigation without a hearing
before an AJ should mitigate the Commission's view of the record in
this case.
Upon review, we note that the agency does not challenge our conclusion
that complainant established a prima facie case of reprisal and disability
discrimination. The agency maintains that its decision to not select
complainant for the position of Supervisory Management and Program
Analyst is supported by the inclusion in the record of the best qualified
list and the complainant's and selectee's applications. However,
we note that while the agency's burden of production is not onerous,
it must nevertheless provide a specific, clear, and individualized
explanation for a non-selection so that complainant is provided with an
opportunity to prove that the agency's explanation was a pretext for
discriminatory animus. See Carolyn V. Boston v. United States Postal
Service, EEOC Appeal No. 0120042074 (May 26, 2004) (Commission held that
the agency failed to meet its burden of production by merely stating in
two short affidavits that the selectee was "not the best qualified for
the position"); see also EEOC v. Target Corp, 460 F.3d 946, 959 (7th
Cir. 2006) (employer should have articulated what qualities applicant
failed to meet in order to articulate a legitimate, nondiscriminatory
reason such that the applicant knows what evidence to present in order
to establish pretext). The job applications and best qualified list do
not provide a specific, individualized explanation why the agency did
not select complainant or why it chose the selectee for the position,
providing us with no insight on how complainant's qualifications
were evaluated in comparison to the selectee's qualifications for the
position. Likewise, the agency only explained the general mechanics of
the performance evaluation process but failed to provide an individualized
explanation for complainant's specific rating.
The agency attributes its failure to sufficiently explain its actions on
the lack of a hearing before an AJ, but the agency is charged with the
obligation to develop an adequate investigative record whether or not
the matter will be heard before an AJ. 29 C.F.R. � 1614.108. Thus,
the agency failed to set forth with sufficient clarity a legitimate
reason for its actions, which deprived complainant of a full and fair
opportunity to demonstrate that the agency's explanations are a pretext
for unlawful discrimination. See Parker v. United States Postal Service,
EEOC Request No. 05900110 (April 30, 1990): Lorenzo v. Department of
Defense, EEOC Request No. 05950931 (November 6, 1997). The agency has
therefore failed to overcome complainant's prima facie case of reprisal
and disability discrimination. See Prevo v. Federal Deposit Insurance
Corporation, EEOC Appeal No. 01972832 (March 10, 2000).
Contrary to the agency's assertion that we must now remand this matter
to give the agency the opportunity to supplement the record, the
Commission has often found discrimination outright when agencies failed
to sufficiently explain its actions. See Brenda Yee v. Department of
the Interior, EEOC Appeal No. 0120061381 (July 11, 2008); Ken Leung
v. United States Postal Service, EEOC Appeal No. 0120063435 (June 8,
2007); Robert E. Johnson v. Department of Homeland Security, EEOC
Appeal No. 0120072888 (December 18, 2008); Emma Blathers v. Department
of Veterans Affairs, EEOC Appeal No. 0120073432 (December 10, 2009).
Consequently, we conclude that our previous decision properly found that
complainant was subjected to reprisal and disability discrimination.
Accordingly, after reconsidering 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 decision in EEOC Appeal No. 0120080343 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The agency
shall comply with the Order as set forth below.
ORDER
To the extent that the agency has not done so, the agency is ordered to
take the following actions:
A. The agency shall revise complainant's EDPAS performance evaluation
for the period May 1, 2004 to April 30, 2005 to reflect an overall
performance rating of "Outstanding."
B. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall give an unconditional written offer to
complainant of placement in the permanent position of Supervisory
Management and Program Analyst (GS-343-15) in the Washington, D.C. office
or a substantially equivalent position. Complainant shall have 15 days
from receipt of the offer within which to accept or decline the offer.
Failure to accept the offer within the 15-day period will be considered a
declination of the offer, unless complainant can show that circumstances
beyond his control prevented a response within the time limit. If the
offer is accepted, appointment shall be retroactive to the date the
applicant would have been hired. If no substantially equivalent position
is available, then the agency shall pay complainant front pay within
sixty days of the date it determined that no position was available.
Front pay shall be awarded until complainant has been placed in the
appropriate position as stated above. If there is a dispute regarding
the exact amount of front pay, the agency shall issue a check to the
complainant for the undisputed amount within sixty days of the date the
agency determines the amount it believes to be due. 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."
C. The agency shall determine the appropriate amount, from the time
he should have been selected, of back pay, with interest, and other
benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no later
than sixty (60) 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;"
D. The agency shall provide training to the responsible agency officials
regarding their obligations under the Rehabilitation Act within 90 days of
the date this decision becomes final. If any of the responsible agency
officials are no longer employees of the agency, then the agency shall
furnish documentation of their departure date(s).
E. The agency shall consider taking appropriate disciplinary action
against the responsible agency officials within 90 days of the date this
decision becomes final. The agency shall report its decision to the
Compliance Officer, referenced herein. 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
agency officials have left the agency's employment, then the agency
shall furnish documentation of their departure date(s).
F. The agency shall undertake a supplemental investigation to determine
complainant's entitlement to compensatory damages under the Rehabilitation
Act. The agency shall give complainant notice of his right to submit
objective evidence (pursuant to the guidance given in Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request
objective evidence from complainant in support of his request for
compensatory damages within 45 days of the date complainant receives the
agency's notice. No later than 90 days after the date that this decision
becomes final, the agency shall issue a final decision addressing the
issue of compensatory damages. The final decision shall contain appeal
rights to the Commission. The agency shall submit a copy of the final
decision to the Compliance Officer at the address set forth herein.
G. The agency shall provide a report of its compliance with Paragraphs
A to F of this Order to the Compliance Officer as referenced below.
Copies must be sent to complainant and his representative.
POSTING ORDER (G0900)
The agency is ordered to post at its Washington, D.C. 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.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
______4/13/10____________
Date
2
0520100196
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100196