01A12006
01-23-2002
Leonard David Fair, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Leonard David Fair v. Department of the Navy
01A12006
January 23, 2002
.
Leonard David Fair,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A12006
Agency No. DON 94-65923-013
Hearing No. EEOC No. 140-97-8004X
DECISION
Complainant timely initiated an appeal from the agency's final action
(FAD 2), concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges he was discriminated against on the basis of reprisal (prior EEO
activity), when he was graded improperly in comparison to the selected
candidates and not selected for one of two temporary (not to exceed one
year) Aircraft Mechanic Leader positions, WL-8852-10, from Merit Promotion
Certificate No. 260-94-2 under Merit Promotion Announcement No. 74-94-2.
For the following reasons, the Commission modifies FAD 2.
The record reveals that complainant, an Aircraft Mechanic, WG-8852-10,
employed at the agency's Naval Aviation Depot, Marine Corps Air Station,
Cherry Point, North Carolina, filed a formal EEO complaint with the
agency on September 8, 1994, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant was provided a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision on September 29, 2000 (AJ Decision 1), finding
discrimination based on reprisal when complainant was not selected for
one of the Aircraft Mechanic Leader position. The AJ further indicated
that he would conduct a supplemental hearing to determine compensatory
damages and attorney's fees and costs upon final review of the case and
directed that the agency inter alia offer complainant placement
in the position of Aircraft (A/C) Mechanic Leader, WL-8852-10 (Work
Leader) or a substantially equivalent position in addition to applicable
back pay.
The agency in a December 14, 2000, final action (FAD 1) adopted the
AJ's discrimination finding, but found that the AJ erred in fashioning
the applicable remedies, by awarding complainant a promotion and back
pay as if the position had been permanent. Subsequently, the AJ, in a
decision dated December 15, 2000 (AJ Decision 2), clarified his first
decision to indicate that the position in issue was not to exceed one
year and that the back pay would be limited to a period of one year.
The agency then issued a second FAD (FAD 2), dated December 21, 2000,
indicating that the agency would fully implement the AJ's decision as
its final action in this matter.
Complainant appealed from FAD 2. On appeal, complainant argues that FAD
2, in implementing AJ Decision 2, was issued with no legal justification
set forth within the body of the FAD and was based solely on ex parte
communication from the agency with the AJ, depriving complainant of due
process and fundamental fairness in the EEO process. Complainant thus
argues, as a result of the ex parte communication, that he was denied
appropriate make-whole relief, to the extent that one of the Selectees
was placed into one of the positions in question on a temporary basis,
and without further competition, following one year of incumbency,
was converted to permanent status. In addition, complainant argues that
he has been denied his right to establish and be awarded compensatory
damages. Finally, complainant argues, that if he prevails on appeal,
he is entitled to reasonable attorney's fees and costs for the expenses
incurred in obtaining legal representation in the bringing and maintaining
of this appeal.
In reply, the agency acknowledges that complainant is entitled to be
placed in the same position as ultimately afforded to the selectees in
this case,<1> and indicates that it initiated action to retroactively
promote complainant to a permanent WL-10 position effective August 7, the
date of the original selection in this case. The Request for Personnel
Action (SF-52) was attached to the reply. The agency, however, submits
that the appropriate manner to deal with the compensatory damages and
attorney's fees issues is to remand the issues to the agency.
Complainant responded to the reply essentially agreeing with the agency
that he was entitled to be retroactively promoted to the permanent WL-10
position, as set forth by the agency. Complainant nevertheless argues
that the agency's ex parte communication with the AJ deprived
him of due process and fundamental fairness in the EEO process.
Complainant argues that the issues of compensatory damages and attorney's
fees should be remanded to an AJ.
ANALYSIS AND FINDINGS
Due Process and Fundamental Fairness in the EEO Process
The agency, in response to the appeal, did not dispute that it engaged
in ex parte communication with the AJ after AJ Decision 1 and before
AJ Decision 2. Complainant's concern over the issuance of FAD 2,
implementing AJ Decision 2, after the agency presumably engaged in ex
parte communication with the AJ, is reasonable. However, we find that
the ex parte communication was at most harmless error.
Complainant argues that, as a result, he was denied appropriate
make-whole relief, to the extent that he was not automatically converted
to a permanent position. Complainant thus emphasizes that AJ Decision
2 erred in concluding that the position for which he was to be placed
was not to exceed one year and that back pay would be for a period of
one year.
As previously indicated, the agency acknowledges that complainant is
entitled to be placed in the same position as ultimately afforded to
the selectees in this case, and indicates that it initiated action
to retroactively promote complainant to a permanent WL-10 position
effective August 7, 1994, the date of the original selection in this
case. The agency also acknowledged that due to the number of years
that had passed since the effective date of the promotion, several
SF-50's reflecting not only the retroactive promotion, but all of the
step increases and salary adjustments, would have to be initiated, and
that the agency would provide all relevant SF-50s to the Commission.
Subsequently, complainant agreed with the agency. Accordingly, the
Commission finds that the parties agree that complainant is entitled
to make-whole relief effective August 7, 1994, including retroactive
promotion to a permanent WL-10 position.
Compensatory Damages and Attorney's Fees and Costs
The Commission has directed that where complainant has claimed
compensatory damages and where the AJ determines, on the merits of the
complaint, entitlement to compensatory damages because of intentional
discrimination or retaliation, the AJ is supposed to calculate the amount
of compensatory damages to be awarded by the agency. EEOC's Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO-MD-110) at 7-11 (As revised, November 9, 1999). In complaints where
compensatory damages have been claimed and a hearing is held, the AJ may,
in his/her discretion develop the record on the compensatory damages claim
during the hearing on the merits on the complaint or may bifurcate the
proceeding and develop the record on the compensatory damage claim after
a finding of discrimination. Id. at 7-11 to 7-12. Additionally, the
Commission has directed that where a party is represented by an attorney,
an AJ is authorized to award a complainant reasonable attorney's fees
and costs incurred in the processing of a complaint where the AJ issues
a decision finding discrimination in violation of Title VII. Id. at
7-12 to 7-13. Indeed, the AJ in both AJ Decision 1 and AJ Decision
2 indicated that he was going to conduct a supplemental hearing to
determine compensatory damages and attorney's fees and costs upon final
review of the case. The AJ did not do so. See also id. at 8-11 (The AJ
shall transmit to the agency a report of findings and recommendations
on the complaint, including a recommended decision, systemic relief or
the class, and any individual relief, where appropriate, with regard to
the personnel action or policy that gave rise to the complaint.) In sum,
the AJ's responsibility in this case was unfinished, since he did not
determine compensatory damages and attorney's fees and costs.
Additionally, complainant's request for attorney's fees pursuant
to the appeal is granted. See Management Directive-110 at 11-1 to
11-2 (�prevailing party� is a complainant who has succeeded on any
significant issue that achieved some benefit the complainant sought in
filing the complaint). In the present case, complainant, on appeal,
has requested and been granted the opportunity to prove compensatory
damages and attorney's fees.
The issues of compensatory damages and attorney's fees and costs must be
remanded to the Hearings Unit. Thereafter the AJ must issue a decision
on these issues in accordance with 29 C.F.R. � 1614.109, and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110 within
forty days of receipt of the AJ's decision. Complainant then may appeal
the agency's final action, involving the merits and/or relief, including
damages and attorney's fees and costs.
CONCLUSION
The Commission agrees with the agency's and the AJ's findings of
discrimination. 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,
we MODIFY the agency's final decision (FAD 2) and REMAND the matter to
the Hearings Unit (Part I) and to the agency (Part II) to take remedial
actions in accordance with this decision and the ORDER below.
ORDER
Part I. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Charlotte, North Carolina,
District Office. Thereafter the Administrative Judge shall issue a
decision on these issues in accordance with 29 C.F.R. � 1614.109, and
the agency shall issue a final action in accordance with 29 C.F.R. �
1614.110 within forty (40) days of receipt of the Administrative Judge's
decision. The agency shall submit copies of the Administrative Judge's
decision and the final agency action to the Compliance Officer at the
address set forth below.
Part II. The agency is ordered to take the following remedial actions:
Within thirty (30) days from the date this decision becomes final, the
agency shall offer complainant retroactively the Aircraft Mechanic Leader
position, WL-8852-10, or a substantially equivalent position, effective
August 7, 1994. The offer shall be made in writing. Complainant shall
be given a minimum of fifteen (15) days from receipt of the offer of
promotion within which to accept or decline the offer. 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.
The agency shall determine, on a make-whole basis, the appropriate
amount of back pay (with interest, if applicable) and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. The amount
of back pay (with interest, if applicable) and other benefits due
complainant shall be awarded from August 7, 1994. 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."
The agency is directed to conduct immediate training to the officials
responsible for its actions in this matter, who were found to have
discriminated against complainant, when he was not selected for
the Aircraft Mechanic Leader position. The agency shall address the
officials' responsibilities with respect to eliminating the discrimination
in the workplace and all other supervisory and managerial responsibilities
under equal employment opportunity law.
The agency shall post a notice in accordance with the paragraph entitled
�Posting Order� below.
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 backpay 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 Cherry Point, North Carolina,
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.
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 whichto 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
January 23, 2002
Date
1 The agency acknowledged that both selectees for this announcement were
selected for a one-year temporary promotion, and that at the end of the
one-year term, both selectees' temporary promotions were extended for a
four-year term. The agency also acknowledged that during the four-year
temporary appointment, both selectees were converted without competition
to a permanent WL-10 position.