0420080003
04-22-2010
Denise Bergren, Petitioner, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Denise Bergren,
Petitioner,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Petition No. 0420080003
Appeal No. 0720060007
Agency No. 5025039
DECISION ON A PETITION FOR ENFORCEMENT
On January 23, 2008, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Denise Bergren v. Department of Transportation,
Appeal No. 0720060007 (June 12, 2007). This petition for enforcement
is accepted by the Commission pursuant to 29 C.F.R. � 1614.503.
Petitioner was an employee of the Federal Aviation Administration
(the agency) working as a Flight Service Specialist in the Longmont,
Colorado facility. Petitioner applied for the positions of Operations
Supervisor and Temporary Operations Supervisor, was found to be qualified
for the positions, but was not selected. The selectees were men. On March
25, 2002, petitioner filed an EEO complaint alleging discrimination on
the basis of sex (female) when she was not selected as an Operations
Supervisor and was not selected for a detail to an Operations Supervisor
position. On September 8, 2005, the Administrative Judge found that the
Agency discriminated against petitioner. The AJ, among other things,
ordered the agency to offer petitioner the Operations Supervisor position,
and retroactive backpay with interest.
On October 3, 2005, petitioner and approximately 200 additional employees
classified as Flight Service Specialists agency-wide, were separated from
employment with the agency as a result of a reduction-in-force (RIF).
Following the RIF, petitioner accepted a position at Lockheed Martin at
Denver Flight Service Station.
The agency rejected the AJ's decision. On October 19, 2005 the agency
appealed to the Commission. In EEOC Appeal No. 0720060007 (June 12,
2007), the Commission concurred with the AJ's finding that petitioner
proffered evidence which establishes that the agency's articulated
reasons for not selecting her for the position at issue were more
likely than not a pretext for sex discrimination. Specifically, the
Commission concurred with the AJ's finding that the agency's explanations
for not selecting petitioner were unworthy of credence and that there
were inconsistencies and weaknesses in management's explanations for
petitioner's nonselection.
In light of the determination that sex discrimination had occurred,
the decision ordered the agency to: (1) offer petitioner in writing
the position of Operations Supervisor, or an equivalent position;
(2) determine the appropriate amount of back pay with interest; (3)
pay compensatory damages to petitioner in the amount of $27,000.00;
(4) pay attorney's fees in the amount of $56,835.00; (5) provide EEO
training to all responsible management officials; (6) take appropriate
disciplinary action against the responsible management officials; and
(7) post a notice that discrimination occurred in its Denver Automated
Flight Service facility. The matter was assigned to a Compliance Officer
and docketed as Compliance No. 0620070698 on June 13, 2007.
On January 23, 2008, petitioner submitted the petition for enforcement
at issue. Petitioner contends that the agency failed to provide her
retroactive placement into the position of Operations Supervisor, or
an equivalent position, with full back pay and benefits. Specifically,
petitioner stated that the agency offered her a position in Kenai, Alaska,
as opposed to the Denver, Colorado area; and it only paid petitioner
retroactive back pay from 12/01/2001 until 10/3/2005, because of the
agency reduction-in-force (RIF) in October 2005. Petitioner alleged that
on October 23, 2005, she was separated by the RIF, while both of the
individuals who were selected for promotion in 2001, instead of her,
remained employed with the agency after the RIF.
In its February 19, 2008 response to the Commission, the agency indicates
and submitted documentation that it did comply with the Commission order.
With respect to the offer to petitioner of the position of Operations
Supervisor, the agency offered petitioner a position as an Operations
Supervisor in its Kenai, Alaska Flight Station. After the RIF, the
only Flight Station still under the control of the agency was the one in
Kenai, Alaska. Therefore, the only Flight Service Operations Supervisor
position that the agency could offer petitioner was in Kenai, Alaska.
There was no other equivalent position in the agency. On September 12,
2007, petitioner declined the offer.
The agency also indicates that it paid petitioner backpay from December 1,
2001 through October 3, 2005. The agency paid petitioner from the date
of the nonselection until the day of the RIF. The agency also paid
petitioner compensatory damages and attorney's fees as ordered. The
Agency provided notice to the OFO that the responsible management
officials retired and therefore could not be given EEO training or
disciplined. Finally, the Agency arranged for posting of the Notice at
the Lockheed Martin facility, since the FAA no longer had a Flight Service
Station in Denver. The agency requests that the petition be denied.
ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.503(a) provides that a petitioner may
petition the Commission for enforcement of a decision issued under the
Commission's appellate jurisdiction.
As a preliminary matter, we note that petitioner does not indicate that
the agency has not complied with the provisions of our order in EEOC
Appeal No. 0720060007 pertaining to compensatory damages, attorney's
fees, training or discipline. We therefore confine our decision herein
to the relief petitioner states she has not received, specifically,
the matter of her placement into the Operations Supervisor position,
or an equivalent position, and the amount of her backpay with interest.
We find that the agency has substantially complied with our order with
regard to offering petitioner the position. The record shows that the
agency offered petitioner the Operations Supervisor position in Kenai,
Alaska, which petitioner denied. We find that the original position
no longer existed, because petitioner's facility was closed, so the
agency offered the only substantially equivalent position available at
the only location available. We note that the proffered position was
identical in duties, responsibilities, pay and grade. The record shows
that petitioner had several options before and after the RIF: she could
have competitively bid for another position at the agency and she was
eligible for two selection programs for all Flight Services Specialists
at the agency. Petitioner chose not to take advantage of these options,
and instead accepted a position with Lockheed Martin at the Denver Flight
Station. The record reveals that most of the Flight Service Specialists
previously employed with the agency were reabsorbed by Lockheed Martin.
Backpay
The purpose of a back pay award is to restore to petitioner the income she
would have otherwise earned but for discrimination. See Davis v. United
States Postal Service, EEOC Petition No. 04900010 (November 29, 1990).
We find that the agency has substantially complied with our order. The
evidence shows that the agency paid petitioner retroactive backpay with
interest from December 1, 2001 until October 3, 2005, the day of the
RIF, for the amount of $30,593.49. Petitioner main argument is that the
individuals previously selected for the positions she applied for in 2001,
are still employed by the agency and that she would have remained employed
absent the discrimination. Accordingly, petitioner challenged the
agency's calculation of backpay only until October 3, 2005. In the instant
case, the record shows that on October 3, 2005, petitioner and another 200
employees classified as a Flight Service Specialists were removed from
their employment as a part of a RIF. Moreover, the majority of Flight
Service Specialists working as Operational Supervisors were subjected
to the RIF and were no longer working with the agency. The record also
shows that the individuals selected for the positions petitioner applied
in 2001, are still employed because they bid for different positions.
Petitioner had the opportunity to bid for a different position both
before and after the RIF, but instead, she accepted a position at the
Lockheed Martin company. We further find petitioner's contention that
absent the discrimination she would not be part of the agency's RIF
too speculative. The Commission has previously held that "it would be
speculation to try to forecast how complainant's future career would
have played out absent the discrimination." See Brown v. United States
Postal Service, EEOC Appeal No. 0720070022 (June 14, 2007). Therefore,
we find that under these circumstances, i.e., with the agency's RIF in
October 2005, the agency's calculation of backpay restores petitioner
the income she would have otherwise earned but for the discrimination.
CONCLUSION
Based upon review of the record, the Commission finds that the agency
has complied with the Order in Denise Bergren v. Department of
Transportation, Appeal No. 0720060007 (June 12, 2007). Accordingly,
the Commission denies petitioner's petition for enforcement.
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
April 22, 2010
__________________
Date
2
0420080003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0420080003