07A10096
06-19-2002
Donald R. Czarnecki, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Donald R. Czarnecki v. Department of Transportation
07A10096
June 19, 2002
.
Donald R. Czarnecki,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 07A10096
Agency No. 5995065
Hearing No. 310-A0-5066X
DECISION
Following its July 24, 2001 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 finding that the agency discriminated
against complainant in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. For the following reasons, the Commission reverses the
agency's final order.<1>
Complainant, a GS-13 Supervisor of Automation at the Fort Worth Air
Traffic Control Center in Texas, applied for the GS-14 position of
Supervisory Airway Transportation Systems Specialist. When he was not
selected, complainant filed a formal EEO complaint on May 14, 1999,
alleging that the agency had discriminated against him on the bases of
his race (White) and age (DOB: 02-28-1942). At the conclusion of the
investigation, complainant was provided a copy of the investigative
report and requested a hearing.
Following a hearing, the Administrative Judge found that complainant
established a prima facie case of race and age discrimination when he was
not selected in favor of a non-White applicant, approximately twenty years
his junior. The Administrative Judge found that the agency articulated a
legitimate, nondiscriminatory reason for its selection, namely that the
selectee had shown leadership qualities and demonstrated the ability
�to move ahead and get things done.� The Administrative Judge then
concluded that the inconsistencies in the record rendered the agency's
explanation less than credible. The Administrative Judge noted that
none of three GS-13 incumbents were selected and that they were all over
forty years of age; that an agency official had described the position to
the EEO Counselor as an upward mobility position, not meant for someone
to retire into; that the selectee had only served a 120 day detail to a
supervisory position which complainant had held for many years; that the
selecting official questioned the circumstances surrounding complainant's
�superior� performance evaluation rating but did not question the
selectee's rating even though it had been completed by a coworker
rather than the selectee's supervisor; that the selecting official
did not consider complainant's technical training and certifications
and criticized complainant's writing abilities without justifying the
writing deficiencies evidenced on the selectee's application; and that the
selecting official's statement concerning complainant's problems dealing
with the union was sufficiently rebutted by the union representative.
In sum, the Administrative Judge concluded that complainant proved, by
a preponderance of the evidence, that the agency's explanation for its
selection was a pretext for discrimination. To remedy complainant, the
Administrative Judge ordered the agency to retroactively place complainant
in a GS-14 Manager of Maintenance Operations position, with appropriate
back pay and interest; to award complainant $1,500.00 in compensatory
damages; to pay proven attorney's fees and costs; and to post a notice.
The agency's final order rejected the Administrative Judge's decision.
On appeal, the agency challenges the Administrative Judge's factual
findings, stating that they are �contrary to the great weight of the
evidence presented in the record and at hearing.� The agency also
states that there are no grounds for a finding of race discrimination and
that should the Administrative Judge's finding of age discrimination be
sustained, compensatory damages and attorney's fees are not recoverable.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
After a careful review of the record, we find that the Administrative
Judge's findings of fact are supported by substantial evidence.
The Commission is not persuaded by the agency's argument that the
Administrative Judge's findings amount to �patently inadequate summaries
of the evidence in the record� or that they �represent a mere scintilla
of the voluminous evidence presented at hearing.� While the agency
clearly disagrees with the Administrative Judge's factual findings, we
find that the evidence in the record is more than adequate to support
the Administrative Judge's conclusion that discriminatory intent existed.
The agency is correct that compensatory damages and attorney's fees
and costs are not available under the ADEA. See Falks v. Department
of the Treasury, EEOC Request No. 05960250 (September 5, 1996).
However, the Administrative Judge's finding that complainant was not
selected due to his age does not preclude a finding that race also
illegally motivated the selection. The Administrative Judge found
that complainant established a prima facie case of race discrimination.
In Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000),
a unanimous Supreme Court held that evidence showing that the employer
presented a false reason for a challenged action is sufficient in most
cases to support a finding of discrimination. The Court acknowledged that
in some cases disproving the employer's explanation may not be sufficient
to permit a finding of discrimination. As an example, the Court stated
that a complainant might have �created only a weak issue of fact as to
whether the employer's asserted reason was untrue and there was abundant,
uncontroverted independent evidence that no discrimination had occurred.�
Id. at 2109. In this case, we find that complainant created a strong
issue of fact concerning the falsity of the agency's explanation and that
there is simply no uncontroverted, independent evidence that no race
discrimination occurred. Accordingly, we discern no basis to disturb
the Administrative Judge's award of $1,500.00 in compensatory damages
for stress related medical problems and complainant's entitlement to
attorney's fees.
Therefore, after a careful review of the record, including all statements
submitted on appeal and arguments and evidence not specifically discussed
in this decision, the Commission reverses 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. Complainant shall also submit
his petition for attorney's fees in accordance with this decision and
the Order below.
ORDER
1. Within sixty (60) calendar days of this decision becoming final,
the agency is ordered to offer complainant either the GS-14 Manager
of Maintenance Operations or a substantially equivalent GS-14 position
at a facility within complainant's commuting area. Both parties shall
cooperate to identify an appropriate position for which complainant is
qualified and willing to accept. Failure to accept the offer within
the time period set by the agency will be considered a rejection of the
offer, unless complainant can show that circumstances beyond his control
prevented a response within the time limit.
2. The agency shall award complainant back pay with interest and other
benefits due complainant, for the period from the date that the selectee
was placed into the GS-14 Supervisory Airway Transportation Systems
Specialist position to the date complainant accepts or declines to accept
the offer ordered in the above paragraph. 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) 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 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.�
3. The agency shall pay complainant $1,500.00 in compensatory damages.
4. The agency shall conduct training for its management officials in its
Fort Worth, Texas and surrounding facilities regarding their obligations
under Title VII and the ADEA.
5. The issue of attorney's fees is remanded to the Dallas District
Office. As indicated in the Administrative Judge's decision, complainant
shall submit a verified statement of fees and costs, accompanied by
an affidavit pursuant to 29 C.F.R. � 1614. 501(e). Thereafter, an
Administrative Judge must be assigned in an expeditious manner to further
process the issue of attorney's fees in accordance with the regulations.
6. The agency is 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
foregoing corrective actions have been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Fort Worth, Texas facilities 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
June 19, 2002
__________________
Date
NOTICE TO EMPLOYEES
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 that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq. has occurred
at the agency's Air Route Traffic Control Center in Fort Worth, Texas
(hereinafter 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.
This facility was found to have subjected an employee to race and age
discrimination. The facility was ordered to award the employee with the
position the employee sought, back pay, compensatory damages and proven
attorney's fees. This facility 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 and will not retaliate against employees who file EEO complaints.
This facility will comply with federal law and 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 1614
1 The Commission declines to consider the agency's untimely submission of
a letter dated December 27, 2001, requesting that the case be remanded
to the Commission's Dallas District Office for assignment to another
Administrative Judge due to an alleged conflict of interest.