01a01734and01a03001
02-08-2001
Joanne Munno, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Joanne Munno v. Department of Agriculture
01A01734; 01A03001
February 8, 2001
.
Joanne Munno,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal Nos. 01A01734; 01A03001
Agency Nos. 940623; 950222
Hearing Nos. 100-95-7608X; 100-96-7405X
DECISION
Introduction
On December 8, 1999, complainant timely initiated an appeal from
the November 8, 1999, final agency decision (FAD) concerning her two
equal employment opportunity (EEO) complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> On March 8, 2000,
complainant filed a second appeal, pursuant to 29 C.F.R. � 1614.504(b),
challenging the agency's noncompliance with those portions of the FAD
which complainant contends are not at issue in her December 8, 1999,
appeal. Both appeals are accepted pursuant to 29 C.F.R. � 1614.405,
and are hereby consolidated. For the following reasons, the FAD is
AFFIRMED IN PART AND REVERSED IN PART.
Issue Presented
The issue presented is whether the agency erred in denying complainant a
promotion to the position of Associate Deputy of Procurement Management,
or an equivalent Senior Executive Service (SES) position, as a remedy
for the discrimination and retaliation which the FAD found occurred.
Background
The record reveals that complainant, a GS-15 employee, held various
positions during the relevant time, including Acting Chief, Procurement
Operations Division, Office of Operations (OO), in Washington, D.C.
In December, 1993, the agency issued an Expression of Interest Notice
that stated that SES vacancies in OO and two other departments would soon
be available. The Notice was directed to SES members and SES Candidate
Development Program (SESCDP) graduates, with instructions for submitting
an expression of interest. Complainant, a 1992 graduate of the SESCDP,
submitted an expression of interest, noting a particular interest in
OO positions. Six candidates, including complainant, were referred for
interviews by a panel, the members of which were selected by the Assistant
Secretary of Administration (ASA), who also made the ultimate selection.
One of the panel members (PM1) appeared to have knowledge and opinions
about complainant based on knowledge and information outside of her
application package.<2> Based on a composite of rankings in various
categories by the panel members, complainant was rated "medium" in
all categories except EEO/Workforce Diversity, in which she was rated
"high/medium." The ultimate selectee received "high" ratings in all
categories. The ASA interviewed three candidates. Complainant was not
interviewed, and another candidate ("C1"), was selected in April, 1994,
as Director of OO. C1 had served a detail as Acting Deputy Director
of OO, and had served as Acting Director since January, 1994. C1 had
been previously disciplined for his participation in a scheme to falsify
travel vouchers in excess of $70,000, and during the relevant time was
under investigation for improper use of a government card and not filling
out paperwork when he took a government computer to his home.
After C1 became Acting Director of OO in January, 1994, complainant sought
details to act in an SES-level position within OO. She submitted her
first request to the ASA in writing in January, 1994, but he did not act
on it. She continued to seek acting positions within OO from the ASA,
C1, and PM1 in April and May, 1994, after C1 became Director of OO.
Each time, her request was either not acted on or was denied. In May,
1994, according to complainant, C1 told her that her prior filing of
EEO complaints precluded her from advancing in OO. HT at 219.<3>
In May, 1994, the OO Deputy Director position was filled by a political
appointee (PA1) selected by the Secretary, and was therefore converted
from a career SES position to a political position. It was then decided
that two Associate Deputy positions, one for Procurement Management and
one for Operations, would be filled, in part because the individual who
became OO Deputy Director, as a political appointee, was not permitted
to oversee procurement activities.
On July 11, 1994, the position of Associate Deputy for Procurement
Management was advertised government-wide. Complainant was among the
candidates interviewed by the panel, and was recommended as one of three
finalists.<4> In the various categories assessed, complainant was rated
"high" in four categories and "medium" in three categories. C1 and PA1
interviewed the finalists, and then an additional interview was conducted
by C1 and ASA. C1 then selected C2, another finalist for the position
who had received five "high" ratings, two "medium" ratings, and one
"medium/low" rating from the interview panel. C1 told complainant she
was not selected because she did not have the breadth of experience in
real and personal property matters that C2 had. Experience with real and
personal property matters had been listed as a "desirable" qualification
for the position, as opposed to one of the Executive Core Qualifications
and Technical Mandatory Qualifications required for the position. C1 also
stated that contrary to what was stated in complainant's application, he
did not perceive her responsibilities at that time to include oversight
of the agency's $2 billion procurement program.
After C2 was selected as Associate Deputy for Procurement Management,
the personnel office discovered he was not technically eligible for
the position because it had been advertised "government-wide" and he
was retired from the Navy at the time of his application. When C1 was
informed of this error and expressed interest in hiring C2 anyway, a new
announcement was issued on December 27, 1994, advertising the position
as open to "all sources." Before applications could be processed,
however, the agency instituted a freeze on all new hires and voluntary
reassignments of senior executives within Departmental Administration,
so the vacancy announcement was canceled. Following the hiring freeze,
Departmental Administration was reorganized, resulting in fewer SES
positions and reassignment of existing senior executives to new functional
areas, including the Associate Deputy for Procurement Management.
Meanwhile, the position of Associate Deputy for Operations in OO was
also advertised in July, 1994, and complainant applied. On November 30,
1994, prior to her panel interview scheduled for December 2, complainant
was told by the EEO Counselor that the ASA regarded complainant as "cold,
distant, stiff and aloof," and that she "lacked conflict management skills
and leadership skills and interpersonal skills." Hearing Transcript
(HT) at 205-06. Based on this information, complainant withdrew from
the interview process, having concluded that her application was futile.
Ultimately, a white female with no prior EEO activity was selected.
Believing she was the victim of discrimination based on the foregoing
events, complainant filed formal EEO complaints with the agency on June
23, 1994 and February 22, 1995. In agency case no. 940623, complainant
claimed she was discriminated against based on race (Caucasian), national
origin (Italian), sex (female), and reprisal (prior EEO claims under
Title VII) when:
(1) in May, 1994, she was not selected for the position of OO Director;
and
(2) in May, 1994, she was not assigned, on an acting basis, to the
position of OO Deputy Director.
In agency case no. 950222, complainant claimed she was discriminated
against based on race (Caucasian), sex (female) and reprisal (prior EEO
activity), when:
(3) she was not selected for the positions of OO ES-102 Associate
Deputy for Procurement Management and OO ES-0342 Associate Deputy for
Operations;
(4) in January, April, June, and August, 1994, she was not assigned,
on an acting basis, to the position of OO Deputy Director; and
(5) in April, June, and August, 1994, she was not assigned, on an acting
basis, to the position of OO Associate Deputy Director for Procurement.
At the conclusion of the investigations, complainant was provided with
copies of the investigative reports, and requested a hearing before
an EEOC Administrative Judge (AJ) on both complaints, which were
consolidated. Following a hearing, the AJ issued extensive findings
and conclusions dated April 12, 1999. With respect to claim (1), the
AJ found compelling evidence that C1 was preselected for the Director of
OO position for discriminatory reasons. However, the AJ also found the
agency had demonstrated by clear and convincing evidence that complainant
would not have been selected for the position, even in the absence of the
demonstrated discrimination in favor of C1, because at least one other
candidate ranked higher than complainant in the application process.
The AJ further concluded that complainant had not proven discrimination
with respect to claim (2), but that complainant had proved discrimination
with respect to claims (3), (4), and (5).<5> In particular, the AJ
found that complainant's non-selection for the Associate Deputy for
Procurement Management position (claim 3) was based on sex discrimination
and reprisal. The AJ found that C1 was not credible when he testified
that he selected C2 over complainant on the ground that complainant was
not overseeing $2 billion in procurement operations for the agency.
The AJ found that complainant:
offered ample evidence in her testimony and the record of numerous
awards and honor[s], the glowing recommendations from other management
officials, and agency documents of her participation and responsibilities
for procurement activities. The record shows that complainant had
experience in real property management, contrary to [C1's] statements.
C1's own recommendations for complainant's applications for procurement
jobs outside USDA undercut his assertion that she lacked the breadth
of experience needed for the position. [C1's] testimony about his
'perceptions' of complainant's application regarding her responsibilities
while detailed to APHIS [the Animal and Plant Health Inspection
Service] and the value of her procurement activities do not comport with
logic or reason.
Recommended Decision at 18 (April 12, 1999).
The AJ noted that C1 conceded that he did not know what complainant
did in terms of her detail to APHIS, and offered no evidence to suggest
that complainant had been untruthful in her application in describing
her procurement duties. The AJ further found that the record showed
complainant could have been placed non-competitively in any SES position,
including the Procurement position, but C1 chose to advertise and fill
the positions through competitive procedures. The AJ also found that
C1 made the initial selection at a time when he had full knowledge
that complainant was actively pursuing her EEO complaints and he was
fully aware of the content of the complaints and management's response
to them. The AJ concluded that had complainant been selected for the
Associate Deputy for Procurement Management position at the time of
the initial job announcement, she would not have been affected by the
subsequent SES hiring freeze.
Following a hearing on damages, the AJ issued additional findings and
conclusions, dated September 30, 1999, recommending the following
remedies: (a) placement in the position of Associate Deputy for
Procurement Management, or a comparable Senior Executive Service (SES)
position for which complainant is qualified, providing any necessary
training to make her qualified for the SES position; (b) back pay with
interest, and other benefits, from the date of the initial selection
for the Associate Deputy for Procurement Management in 1994 until the
date of complainant's placement into an SES position; (c) additional
back pay to the extent individuals who acted in the position of OO
Associate Deputy Director for Procurement received any additional pay;
(d) lost earnings from the Thrift Savings Plan (TSP) and "the lost value
of any back pay that complainant would have earned in investments";
(e) restoration of 68.5 hours of sick leave taken as a result of the
agency's discriminatory actions; (f) non-pecuniary damages in the amount
of $150,000; (g) past pecuniary losses in the amount of approximately
$15,000; (h) certain future pecuniary losses, not to exceed $150,000, to
be reimbursed by the agency as incurred by complainant; (i) reasonable
attorney's fees and costs; and (j) EEO training, disciplinary action,
and posting of a notice in accordance with 29 C.F.R. � 1614.501(a)(1).
While the AJ did not specify which remedies, or portions thereof, were
attributable to each of the claims on which she recommended a finding of
liability, the SES promotion recommended by the AJ was to the position of
Associate Deputy for Procurement Management, which was at issue in claim
(3), or a comparable SES position for which complainant is qualified.
The agency's FAD, issued November 8, 1999, only adopted in part the AJ's
recommended decision.<6> Specifically, the FAD found that complainant
only proved discrimination with respect to claims (4) and (5), but not
claims (1) and (3). With respect to claim (3), the FAD stated that
"the agency does not deny that complainant met all required mandatory
managerial and technical criteria for the position," but that C2 was
"the stronger candidate overall." FAD at 10.
In awarding remedies, the FAD rejected the AJ's recommendation that
complainant be promoted to OO Associate Deputy Director for Procurement
Management or an equivalent SES position, citing the following reasons:
(a) since the FAD only found discrimination with respect to claims four
and five, which involved complainant having been chilled in an application
process and having been denied an assignment to a position on an acting
basis, she was not legally entitled to promotion as a remedy; (b) the
position of OO Associate Deputy Director for Procurement Management
has been abolished, and the functions redistributed;<7> (c) but for the
encumbered position referenced in n.7, supra, there is no position in the
Department which is directly comparable to the position identified by the
AJ; (d) the AJ's findings in her recommended decisions on the merits and
damages portray complainant as someone with "serious psychological and
emotional difficulties who has undergone psychotherapy treatment . . . who
will require further such treatment for the indefinite future," based on
which the agency "is not convinced that [she] is ready for the demands
of performing in an SES-level senior management position," FAD at 5; and
(e) since 1996, complainant, in her capacity as a manager, has had ten
discrimination complaints filed against her by subordinate employees.
Accordingly, rather than the promotion to an SES position recommended
by the AJ, the FAD awarded complainant a step increase to Grade 15,
step 10, in her current position, and management skills training.
The FAD additionally awarded complainant back pay and benefits, with
interest, as of the date of the initial selection for the Associate Deputy
for Procurement Management in 1994, as though she had been promoted to
a GS-15, step 10 position, as well as restoration of 68.5 hours of sick
leave, $250,000 in non-pecuniary damages, $15,000 in past medical and
other expenses, reasonable attorney's fees and costs upon receipt of a
fee petition with a verified statement, EEO training for the responsible
management officials, consideration of disciplinary action, and posting
of an appropriate notice.
In appeal no. 01A01734, complainant asserts, by counsel, that the FAD
erred in denying her the promotion to Associate Deputy for Procurement
Management, or a substantially equivalent SES position, as recommended
by the AJ. Her notice of appeal states that she seeks to appeal "only
from the findings and conclusions of the agency in the FAD concerning
the agency's refusal to implement those portions of the decisions of
the AJ dated April 12, 1999 and September 30, 1999, dealing with the
promotion of [complainant] to the [SES] and the back pay and benefits
flowing therefrom." Complainant has submitted an affidavit on appeal
addressing the FAD's conclusion that she is not fit for an SES position.
In response, the agency contends, inter alia, that SES promotion, and
back pay and benefits associated with such promotion, are not within
the scope of relief available under claims (4) and (5), and that the
FAD properly rejected the AJ's recommended finding of discrimination
with respect to claim (3) because the selectee was more qualified than
complainant.<8>
In appeal no. 01A03001, complainant contends, pursuant to 29 C.F.R. �
1614.504, that, with the exception of the promotion at issue in appeal
no. 01A01734, the remainder of the relief ordered in the FAD constitutes a
"final decision that has not been the subject of an appeal" with which the
agency is bound to comply pursuant to 29 C.F.R. � 1614.504. In response,
the agency contends that by virtue of complainant's appeal in 01A01734,
the FAD is "the subject of an appeal" and is thus not enforceable pending
issuance of an appellate decision by the Commission.
Analysis and Findings
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).
Claim (3)
Applying the substantial evidence standard of review, we reverse the
FAD with respect to claim (3), and find that the AJ properly concluded
complainant proved by a preponderance of the evidence that she was
not selected as Associate Deputy for Procurement Management based on
reprisal.<9> In reaching this conclusion, we note in particular that
the agency's contention that "the Administrative Judge erroneously found
that complainant had experience in real and personal property sufficient
to qualify for the position," Agency Brief Opposing Appeal at 15,
is undermined by the agency's own finding in its FAD that "the agency
does not deny that complainant met all required mandatory managerial
and technical criteria for the position," FAD at 10. Moreover, the
qualification which the agency now asserts complainant lacked � real
and personal property experience � was added as a qualification on
the list of Knowledge, Skills, and Abilities for the position when
it was re-announced, after C1 learned he could not hire the eventual
selectee based on the prior announcement. Complainant's Affidavit at
� 105.<10> Further, the AJ found that complainant presented unrefuted
witness testimony that the ASA and PM1 were angry with complainant
because she had filed EEO complaints. A former employee testified
that complainant's supervisor had told him that complainant's superiors
expressed a determination to end complainant's career because she "had
poisoned the well" by filing an EEO complaint against senior management.
HT at 129-135. The AJ found that although this testimony was hearsay,
the witness who testified to it was "credible in both his demeanor and
the consistency of his testimony." Recommended Decision at 15-16 n.17
(April 12, 1999). The AJ further found that the agency "did not present
a shred of evidence to rebut or even cross-examine this witness." Id.
Thus, notwithstanding the agency's arguments on appeal that the selectee
was more qualified than complainant, a reasonable fact finder could have
concluded, based on the evidence, that complainant was equally qualified
for the position of Associate Deputy for Procurement Management, and
was not selected because of C1's retaliatory intent. Accordingly,
under the substantial evidence standard of review, we defer to these
factual findings. In light of these factual findings, we conclude that
the FAD erred in finding no discrimination on claim (3). Applying the
relevant legal analysis to the AJ's factual findings, we conclude that
complainant has established by a preponderance of the evidence that she
was not selected as Associate Deputy for Procurement Management because
of retaliation. Accordingly, we reverse the FAD with respect to claim
(3).<11>
SES Promotion Remedy
Based on the foregoing finding of retaliation with respect to claim
(3), we further find that the AJ's recommended promotion of complainant
to the position of Associate Deputy for Procurement Management, or a
substantially equivalent SES position, was proper, and we reverse the
FAD with respect to its denial of this item of relief. In light of this
disposition, we do not reach the agency's contention that promotion to
an SES position is not legally available as a remedy on claims (4) and
(5), which relate to complainant having been chilled from applying for
a particular promotion, and complainant having been denied details to
hold certain SES positions on an acting basis.
The FAD concludes that it is nevertheless inappropriate to promote
complainant to an SES position because of approximately ten EEO
complaints filed against her since 1996 by six different employees. We
find that agency's argument is unsupported by the evidence in the record.
The FAD summarily states that the referenced complaints have been settled
or remain pending, yet the agency introduced no evidence regarding the
existence or nature of these complaints into the hearing record, including
at the separate hearing on remedies. It is well settled that the agency
should not base the FAD on evidence which it failed to introduce into the
hearing record. Cf. McGee v United States Postal Service, EEOC Appeal
No. 01982488 (March 12, 1999). The agency has provided no explanation
for its failure to introduce any such evidence into the record, and the
FAD concedes that "the Department has made no judgment as to the overall
merits of the described complaints." FAD at 6.<12>
Further, even assuming we considered the extra-record information on
which the FAD relies, we would find it unpersuasive in light of the
counter-evidence submitted by complainant on appeal, which the agency
has not addressed whatsoever in its opposition brief. Specifically,
in an affidavit appended to her appeal brief, complainant explains the
nature of each of the EEO complaints which have been filed against her
and her defense to each. She further notes that two were resolved in
her favor, two were settled, and the rest are pending. She also asserts
that the FAD misleadingly states that she has 30 subordinates and 10 EEO
complaints, whereas the referenced complaints include those filed prior
to 1998, at which time she had close to 100 subordinates. Complainant
also notes that she received the annual supervisor's award from the
African-American Issues Council in 1996 and the annual supervisor's
award from the APHIS Civil Rights Director in 1997. She also notes
that she received an APHIS performance-based cash award in December,
1999, of $3,000, whereas the average amount of cash awards in the parent
organization, APHIS Marketing and Regulatory Programs-Business Services,
is under $1,000.<13> Moreover, complainant identifies at least four
employees who have been reassigned to her supervision at their own request
as part of settlements of their EEO complaints against other managers.
The agency has not addressed whatsoever in its appeal brief the issue
of EEO complaints on which it relied in the FAD. Nor has the agency
responded to or rebutted the assertions contained in complainant's appeal
brief regarding this issue.
Similarly, to the extent the FAD concludes that complainant's mental
health diagnosis and ongoing mental health treatment are grounds to
exclude her from the SES, we find that the agency's contentions are
unsupported by the record evidence. The FAD concludes that the agency
"is not convinced that the complainant is ready for the demands of
performing in an SES-level senior management position, and believes it
unwise to undertake the risks both for the complainant and the Department
of assigning the complainant to such a position." FAD at 5. However,
notwithstanding extensive testimony adduced at the compensatory damages
hearing regarding complainant's emotional distress, alcohol abuse, weight
gain and other physical symptoms of distress, and strained relationships
resulting from the discrimination at issue, the evidentiary record does
not support the FAD's conclusion that complainant is psychologically
unable to perform in an SES position.<14> In reaching this conclusion,
we note in particular that the agency introduced, and the AJ credited,
expert testimony at the damages hearing to the effect that complainant's
major depression, contrary to her own expert's contention, was not severe.
Although the AJ concluded that complainant's condition worsened in
April, 1999, following a detail which is not the subject of this case,
the fact that the agency proposes to place complainant in a GS-15, step
10, and that she currently holds the equivalent of a GS -15, step 9,
ranking, undermines the agency's conclusion that her depression renders
her unable to hold an SES position.
Moreover, the agency failed to introduce any evidence into the hearing
record that complainant is not qualified to hold an SES position,
even after issuance of the AJ's April 12, 1999 Recommended Decision,
which specifically included as part of the recommended corrective action
that complainant be promoted to the position of Associate Deputy for
Procurement Management or a comparable SES position for which she is
qualified. Notwithstanding that the hearing process thereafter continued,
with discovery relating to relief and a hearing on compensatory damages,
the agency did not introduce any evidence into the record regarding
the "risk" which the FAD found would be posed by placing complainant
in an SES position. To the contrary, both complainant and the agency
adduced evidence at the compensatory damages hearing which indicated
that complainant remained able to perform her job well. Complainant's
psychiatric expert witness testified at the compensatory damages hearing:
a huge source of self-esteem and self-worth for [complainant] is her
ability to function at work. And so she made every effort to keep
going to work and to act at work as if everything was normal, but at
significant cost elsewhere in her life.
HT at 186. She further testified that in her opinion that complainant's
depression affected her, inter alia, as follows:
She [experienced] clear severe major impact on her functioning in her
home, her personal life, her husband, her daughter, her church. She was
able to keep going to work, but she herself, and I think her performance
evaluations reflect, she was not working to the capacity that she was,
but she worked at such a high capacity to begin with that, you know,
her functioning is still, I think, above average, I mean, which again
as I've said, reflects her enormous investment in being able to work.
Her sense of self, her being, her existence is tied to her being able to
work. This is how she got herself out of the situation of her childhood.
And so to have that disrupted is what is so devastating to her.
HT at 190-91. The agency's own psychiatric expert did not testify to
the contrary, and at no time did any witness, expert or lay, testify
that complainant's depression rendered her unable to perform in an
SES-level position. To the contrary, the agency itself called the Deputy
Administrator for Management and Budget, herself an SES-level employee,
to testify at the compensatory damages hearing that complainant's
alleged emotional distress was undetectable at work. This supervisor,
under whom complainant previously performed an SES-level detail, and
under whose management complainant continued to work at the time of
the compensatory damages hearing in July, 1999,<15> testified "there
has never been a time when [complainant] didn't do her work and do it
well . . . She's on time with things, she's punctual, and she does a
good job." HT at 224. In light of this undisputed record evidence,
proffered by the agency itself, the FAD's conclusion that placement of
complainant in an SES-level position poses a "risk" is untenable.
Finally, the FAD also concluded that the position of Associate Deputy
for Procurement Management no longer exists under the same title, and
further that no SES-level position for which complainant was qualified was
unencumbered. Neither of these circumstances warrants the alternative
remedy of a step increase to a GS-15, step 10, position that the FAD
awards instead. Rather, the Commission has repeatedly held that if
placement in an appropriate position is not possible, the employer must
find a way to make the victim of discrimination whole until such placement
can be accomplished. Finlay v. United States Postal Service, EEOC Appeal
No. 01942985 (April 29, 1997) (citing Tyler v. United States Postal
Service, EEOC Request No. 05870340 (February 1, 1988)). Accordingly,
if there is truly no unencumbered SES position for which complainant
is qualified at this time, the agency must provide front pay until
such a position becomes available and complainant is placed in it. Id.
In the alternative, the agency may, as complainant suggests in her brief,
reclassify her current position to an SES position, inasmuch as she has
already graduated from the SES candidate program.<16>
Noncompliance
By letter dated May 3, 2000, the agency requested that appeal no. 01A03001
be administratively closed as a duplicate of appeal no. 01A01734.
As noted above, appeal no. 01A03001 is not a duplicate appeal, but
rather an appeal from the agency's decision on complainant's allegation
of non-compliance pursuant to 29 C.F.R. � 1614.504. Complainant
satisfied the procedure set forth in � 1614.504 by notifying the agency
EEO Director, in writing, of the alleged non-compliance within 30 days
of when the complainant knew or should have known of it. Complainant
contends that because her notice of appeal and brief purported to
limit her appeal to the issue of the FAD's denial of promotion to an
SES position as a remedy, the remainder of relief awarded in the FAD
is immediately enforceable notwithstanding the pendency of the appeal.
Following the agency's response, advising that it would not implement
the referenced relief pending complainant's appeal to the Commission,
complainant appealed this alleged non-compliance with the FAD pursuant
to � 1614.504.
In the circumstances of this case, the agency correctly concluded, by
virtue of complainant's subsequently filed appeal, that the agency's
November 8, 1999 FAD did not constitute a "final action that has not
been the subject of an appeal" pursuant to 29 C.F.R. � 1614.504(a).
Complainant's reliance on Commission decisions stating that an agency is
bound by its own finding of discrimination is misplaced. The referenced
line of authority merely stands for the well-settled proposition that
an agency may not itself rescind its prior finding of discrimination.
See, e.g., Brewer v. Babbitt, EEOC Appeal No. 01972835 (February 22,
2000) (agency is bound by its own finding of discrimination and cannot
relitigate the issue on appeal); Rousseau v. Department of Education, EEOC
Appeal No. 01920410 (January 21, 1992) (no express authorization in EEOC
regulations for agency to rescind a FAD that had found discrimination);
see also Peace-Jackson v. Department of Labor, EEOC Request No. 05950754
(May 12, 1997) (once an appeal to the Commission has been taken,
the Commission's jurisdiction over that appeal affords it discretion
over whether to permit the rescission of an agency's final decision);
cf Warren R. Johnson v. Environmental Protection Agency, EEOC Request
No. 05950140 (March 26, 1996) (agency could not include claims under
the appellate jurisdiction of the Commission in a FAD dismissing the
remainder of complaint).
While agencies may not unilaterally act to rescind their FADs, the
Commission has always retained the discretion to review any aspect of
a complaint on appeal, and to reverse or modify an agency's finding on
any issue in the complaint, or any aspect of relief ordered, regardless
of what
issues are raised by the parties on appeal. As the Commission has
explained in the Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110) at 9-10 (November 9, 1999):
Although the Commission has the right to review all of the issues in
a complaint on appeal, it also has the discretion not to do so and may
focus only on the issues specifically raised on appeal.
Thus, the parties cannot circumscribe the Commission's appellate authority
to review any or all issues it deems appropriate in a particular appeal.
For this reason, the agency was not in non-compliance under � 1614.504,
and the agency's decision to this effect is affirmed.
Conclusion
After a careful review of the record, the Commission finds that the AJ
properly found that complainant was retaliated against when she was not
selected as Associate Deputy for Procurement Management, and that the AJ
properly recommended that, as part of the appropriate remedy, complainant
be promoted to that position or a substantially equivalent SES position,
with back pay and benefits calculated accordingly. Therefore, after
a careful review of the record, including complainant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the FAD is REVERSED to the extent it did not
find retaliation proven on claim (3) and order placement in an SES-level
position as part of the remedy, with attendant back pay and benefits.
The FAD is therefore AFFIRMED IN PART AND REVERSED IN PART, as set forth
in the foregoing decision, and the agency is ORDERED to take remedial
actions in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action within thirty
(30) days of the date this decision becomes final:
(1) Promote complainant to an SES position for which she is qualified
which is substantially equivalent to the Associate Deputy for Procurement
Management position for which she was not selected, or, in the event no
such position is available, pay complainant front pay, including all
other benefits of employment and the value of earnings to her Thrift
Savings Plan (TSP) account, until such time as such position becomes
available, and at that time promote her to the available position.
(2) Pay complainant back pay, with interest, as well as all other
benefits of employment which would thus apply pursuant to 29 C.F.R. �
1614.501, including the value of lost earnings to complainant's TSP
account, calculated from the date of her initial non-selection.<17>
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."
(3) Pay complainant $250,000 in non-pecuniary compensatory damages,
and $15,000 in past pecuniary damages, as ordered by the FAD.
(4) Restore to complainant 68.5 hours of sick leave, as ordered by the
FAD.
(5) Award complainant reasonable attorney's fees and costs.
(6) Provide training to USDA officials involved in the instant complaints
regarding their obligations under federal equal employment opportunity
laws.
(7) Take appropriate disciplinary actions against officials of the
agency who were responsible for the discriminatory conduct at issue in
the instant complaints.
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Office of Operations in Washington,
D.C., 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
February 8, 2001
__________________
Date
1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into
effect. These regulations apply to all federal sector EEO complaints
pending at any stage in the administrative process. Consequently, the
Commission will apply the revised regulations found at 29 C.F.R. Part
1614 in deciding the present appeal. The regulations, as amended, may
also be found at the Commission's website at www.eeoc.gov.
2Although PM1 denied discussing anything other than the application
package, another panel member testified at the hearing on the instant
complaints that PM1 made less than supportive comments about complainant
that appeared to be based on information outside complainant's
application.
3Complainant had met with the ASA in January, 1994, and informed him
that she believed she was being discriminated against. According to
complainant, the ASA's only response during the meeting was to ask
her if she had a sense of humor. HT at 185. The ASA did not recall
this meeting. Complainant had also filed a formal EEO complaint on
January 11, 1994, in which she alleged that the former Director of OO
had discriminated and retaliated against her, inter alia, by opposing
her selection and participation in the SESCDP, and by not considering
her for the positions of Deputy Director for the Office of Operations,
vacant since 1993, or Chief of the Procurement Division, which had
been vacant for two years. The January 11, 1994 EEO complaint was
settled by a May 10, 1994, written agreement, pursuant to which the
agency agreed to detail complainant to an SES position for 150 days.
Complainant subsequently alleged the agency breached this agreement, and
on appeal this Commission found the agency had breached the agreement.
Munno v. Department of Agriculture, EEOC Appeal No. 01950343 (November
29, 1995).
4C1 concedes that complainant was eligible to be placed non-competitively
in any SES position for which she was technically qualified. HT at 366.
Complainant asserts that C1 told her that she should apply through the
competitive process instead so that she would feel better about herself.
5The AJ did not find discrimination on all bases raised by complainant
for claims (1) and (3). With respect to claim (1), the AJ found
discrimination on the bases of race, sex, and reprisal, but not national
origin. With respect to claim (3), the AJ found discrimination on
the bases of sex and reprisal, but not race. With respect to claims
(4) and (5), the AJ found discrimination on the bases of race, sex,
and reprisal.
6Inasmuch as the agency's decision was issued prior to the November
9, 1999, effective date of the Commission's revised federal sector
regulations, see n.1, supra, the agency was not required to file its
own notice of appeal with respect to those portions of the AJ's decision
with which it disagreed. To the extent complainant argues on appeal that
the agency was required to file its own notice of appeal in this case,
this is incorrect.
7The FAD asserts that a position was established to which some of the
duties contemplated for the position of Associate Deputy Director for
Procurement Management were reassigned, together with other duties, to
a different, newly established position which is currently encumbered
by an extremely qualified person whom the agency declines to displace.
FAD at 4.
8Complainant has filed a motion to strike the agency's brief, contending
that the Office of Federal Operations erred in granting the agency's
request for an extension of time in which to file. Our regulations
expressly provide that the time limits contained in Part 1614 "are subject
to waiver, estoppel, and equitable tolling." 29 C.F.R. � 1614.604(c).
Moreover, the Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (MD-110) at 9-13 (November 9, 1999), explains that
failure to comply with � 1614.404 appellate procedures will only result in
sanctions in the absence of good cause shown for the failure to comply.
In the instant case, the Office of Federal Operations acted within its
discretion to grant the agency's request for an extension of time within
which to file its brief.
9In light of this disposition, we need not reach the issue of the AJ's
finding that complainant's non-selection was additionally based on sex
discrimination.
10Moreover, the AJ found that at the time of her application, complainant
was detailed to APHIS where, among other things, she was responsible
for APHIS's real property program. While the agency contends on appeal
that complainant had only been in the detail for two weeks when she
submitted her written application for the Associate Deputy position,
C1 testified that he had no knowledge of what complainant's position at
APHIS entailed. HT at 367. Moreover, the agency concedes, FAD at 5,
that complainant's position at APHIS entailed the management of real and
personal property. Further, C1 conceded at the hearing that complainant
had received an outstanding performance rating based, inter alia, on
her work in procurement. HT at 366-68.
11In reaching this conclusion, we do not rely upon the AJ's statement that
the selection of a white male candidate "runs counter to the consistent
agency statements that it wanted to improve the representation of women
and minorities in the SES ranks." Recommended Decision (April 12, 1999)
at 19.
12The hearing record did contain complainant's affidavit testimony that
the agency instituted a policy during the relevant time of considering
the number (without regard to merit) of EEO complaints pending against
managers as a factor in their annual appraisals, thus encouraging
complainants to file meritless complaints against their supervisors.
See Complainant's Affidavit at ��152-153.
13Complainant further attests that C1 had EEO complaints pending against
him at the time he was selected by the agency for SES, and misconduct
charges relating to use of a government credit card for personal purchases
were also pending. C1 also had previously been disciplined by the agency
for fraudulent use of travel vouchers. Additionally, complainant notes
that C1 remains in his position notwithstanding having been adjudicated
to have discriminated against complainant in this very case, whereas
complainant has never been found to have engaged in discrimination.
See Complainant's December, 1999, Affidavit at ��30-31.
14The AJ noted in her September 30, 1999, decision on remedies that
the instant case only addresses two formal EEO complaints filed by
complainant. In addition to these, and one that was previously settled,
see n.3, supra, the AJ noted that complainant filed two additional
pending EEO complaints not at issue in this case. One of these additional
complaints addresses complainant's "April, 1999, detail to an unclassified
position with unclassified duties," an action which complainant alleges
she was told "was taken because she needed a job with less stress."
Recommended Decision at 7 (September 30, 1999). The AJ noted that
nothing in her decision should be construed as a comment on the merits
of anything other than the two complaints at issue in this case. Id.
The same is true of the instant Commission decision.
15HT at 220, lines 10-11.
16We note that there is no legal impediment to ordering placement in
an SES position as a remedy, notwithstanding that the selection may
be subject to approval by the Office of Personnel Management (OPM).
See Gregory v. Department of the Navy, EEOC Appeal No. 01960034 (November
6, 1996) (proper remedy is for agency to select complainant as its
candidate for the position in question, which selection will then be
subject to OPM approval where required).
17The AJ indicated in her September 30, 1999, decision, at 3 n.6, that
the record did not reveal the exact date on which the initial selection
at issue was made, but that it occurred between November 1, 1994 and
December 27, 1994. The agency is directed to determine the relevant
date in November or December, 1994, to use for purposes of the back
pay calculation.