0720060013
11-15-2007
Leonard Henry Sr, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Leonard Henry Sr,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07200600131
Hearing No. 310-2004-00214X
Agency No. 200L-0635-2003102008
DECISION
On the same date as its October 26, 2005 final order, the agency filed a
timely appeal, concerning the captioned complaints, which the Commission
accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection
of that portion of the decision of the EEOC Administrative Judge (AJ),
wherein she determined that complainant was entitled to back pay and a
promotion to GS-8 retroactive to December 3, 2002. The agency otherwise
adopts the AJ's finding of race discrimination when complainant was
not selected for the position of Supervisory Program Support Assistant.
The agency also accepts the relief ordered by the AJ, i.e, attorney's
fees in the amount of $22,697.21 and $25,000.00 in compensatory damages.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Medical Technician, in Oklahoma City, Oklahoma. The record
shows that on June 2, 2002, complainant was promoted to a GS-6 Medical
Records Technician position.
On August 14, 2002, management announced a Supervisory Program Support
position at the GS- 6/7/8 levels. On August 22, 2002, complainant
applied for this position. On October 9, 2002, Human Resources (HR)
rated complainant qualified for the position, but at the GS-6 level,
because he did not qualify for promotion to the GS-7 or GS-8 level.
Specifically, the agency determined that complainant did not meet
applicable specialized experience and time-in-grade requirements at GS-7
or GS-8 levels. On December 3, 2002, management selected a Hispanic
applicant for the position.
On March 12, 2003, complainant contacted an EEO Counselor and filed a
formal EEO complaint on April 12, 2003, alleging that he was discriminated
against on the bases of race (Black) and color (Dark-Brown) when he was
not selected for the position of Supervisory Program Support Assistant,
GS-303-6/7/8.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on August 16, 2004. On
September 14, 2005, the AJ issued a decision finding race discrimination.2
As make-whole relief, the AJ ordered the agency to place complainant
in the position of Supervisory Program Support Assistant, GS-8,
retroactive to December 3, 2002, with back pay and benefits; $25,000.00
in non-pecuniary damages and $22,697.21 in attorney's fees and costs,
and the posting of a notice regarding the finding of discrimination.
FINAL AGENCY ACTION
In its final action, the agency adopted the AJ's findings of
discrimination and the remedial relief. However, it rejected the
AJ' s finding that complainant's promotion and back pay at the GS-8
level must be calculated from December 3, 2002. The agency alleged
that complainant's promotion and back pay at the GS-8 level, should
be calculated from June 1, 2004, the date complainant met applicable
specialized experience and time-in-grade requirements for promotion to
the GS-8 level.
CONTENTIONS ON APPEAL
In its appeal, the agency contends that the position of Supervisory
Program Support Assistant was advertised in August 2002, as a
GS-303-6/7/8. According to the vacancy announcement, candidates were
required to meet a time-in-grade requirement of one year of service
at the next lower grade level. The agency argues that complainant was
determined to be a qualified candidate at the GS-6 level, but he lacked
the specialized experience and time-in-grade to be eligible for selection
at the GS-7 and GS-8 levels. The agency asserts that complainant received
his GS-6 on June 2, 2002, so at the time he submitted his application
for the Supervisory Program Support Assistant position, he had been
a GS-6 for less than three months. The agency further contends that
complainant was unqualified for the GS-8 position in December 2002,
because according to the Office of Personnel Management (OPM) he did
not meet the time-in-grade requirements of one year at the GS-7 level.
STANDARD OF REVIEW
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
ANALYSIS AND FINDINGS
As an initial matter, we find that as neither party disputes the
AJ's finding of discrimination, we hereby AFFIRM that determination.
We also AFFIRM the AJ's determination regarding compensatory damages
and attorney's fees, as neither the agency nor complainant disputes
the amounts.
Pursuant to 29 C.F.R. � 1614.501(b)(1)(i), when an applicant has
been discriminated against, the agency shall offer the applicant the
position that the applicant would have occupied absent discrimination,
or a substantially equivalent position. As part of complainant's "make
whole" remedy, the AJ determined that complainant should be promoted to
the position of Supervisory Program Support Assistant, GS-8, and awarded
back pay. In addressing the issue of back pay, the AJ ordered that the
agency determine the appropriate amount of back pay with interest and
other benefits due complainant for the period from December 3, 2002,
to the present and tender that amount to complainant.
Upon review, we find that the AJ correctly found that as a result of the
discriminatory non-selection complainant should be retroactively promoted.
However, we slightly modify the retroactive promotion of complainant to
the position. Specifically, we conclude that even absent discrimination,
complainant was not entitled to a GS-8 level position until June 1, 2004.
We find that the agency has presented clear and convincing evidence that
on December 3, 2002, complainant did not meet applicable specialized
experience and time-in-grade requirements for promotion to the GS-7
or GS-8 level. The record reveals that complainant did not meet the
requirements for the GS-7 level until June 2003, and for the GS-8 level
until June 2004. Accordingly, we modify the AJ's decision to award
complainant back pay and interest and other benefits commensurate with
his eligibility in accordance with the Order below.
CONCLUSION
In conclusion, for the reasons set forth above, we find that the agency's
decision to modify the AJ's award of remedies was proper and is hereby
AFFIRMED. The agency is directed to implement, to the extent it has
not already done so, the modified award as set forth below.
ORDER (C0900)
The agency is ordered, to the extent it has not already done so, to take
the following remedial action:
(1) The agency shall within thirty (30) calendar days of the date
this decision becomes final, promote complainant to the position of
Supervisory Program Support Assistant, GS-6, retroactive to December 3,
2002; at the GS-7 level retroactive to June 1, 2003; and at the GS-8
level, retroactive to June 1, 2004.
(2) 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) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision;"
(3) Pay compensatory damages to complainant in the amount of $25,000.00;
(4) Pay attorney's fees in the amount of $22,697.21;
(5) Provide EEO training to all responsible management officials regarding
their obligations under Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq.; and
(6) The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. If the agency decides to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date (s).
(7) 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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Oklahoma City, Oklahoma facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (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 (S0900)
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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 15, 2007
__________________
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
(Title VII), as amended, 42 U.S.C. � 2000e et seq. has occurred
at the Department of Veterans Affairs, in Oklahoma City, Oklahoma.
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.
The Department of Veterans Affairs supports and will comply with
such federal law and will not take action against individuals
because they have exercised their rights under law.
The Department of Veterans Affairs was found to have discriminated
on the basis of race when complainant was not selected for the
Supervisory Program Support Assistant position. The agency was
ordered to provide the complainant an employment offer, back pay,
attorney's fees, compensatory damages, and training, as well as
consider disciplinary action against the responsible managerial and
supervisory employees on their responsibilities and obligations
under the federal anti-discrimination statutes. This facility
will ensure that supervisors and management officials will abide
by the requirements of all federal equal employment opportunity
laws and will not retaliate against employees.
The facility 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 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2The AJ included a footnote in her decision which stated "Because
the color of the other applicants was unavailable, and no evidence
was presented during the hearing, color will not be discussed in this
decision."
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0720060013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0720060013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848