04980027
12-16-1999
) Petition No. 04980027
Karen S. Morgan, )
Petitioner, )
) Petition No. 04980027
v. ) Appeal No. 01961336
) Agency No. 94-00264-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
On June 18, 1998, petitioner requested enforcement of the Order set forth
in Morgan v. Department of the Navy, EEOC Appeal No. 01961336 (March
4, 1998). Pursuant to that Order, the Commission directed the agency
to redress petitioner following a finding of racial discrimination.
The Commission accepts the petition pursuant to the provisions of 29
C.F.R. � 1614.503.<1> For the reasons set forth below, the Commission
denies the petition.
The prior decision found that the agency discriminated against petitioner
when she was not selected for a GS-09 position in December 1993.
We ordered the agency, inter alia, to offer petitioner retroactive
installment to a GS-09 position with all step and grade increases which
would have accrued between December 1993 and her installment, based
on a comparison with the selectee's performance and an assumption that
petitioner would have met all performance requirements satisfactorily;
and to determine the appropriate amount of back pay, interest and other
benefits due.
Petitioner contends that since the agency promoted the selectee,
petitioner would have been promoted but for the discriminatory
non-selection. We note that the selectee's promotion to a GS-11 position
was competitive. When a promotion to the next level is not automatic
but rather based on merit selection with other candidates, the Commission
is reluctant to assume that an individual, absent a discriminatory act,
would have subsequently received such promotion. See Ramirez v. United
States Postal Service, EEOC Petition No. 04950024 (February 8, 1996).
Moreover, we note that petitioner, who accepted a GS-9 position in August
1994, was subsequently promoted to a GS-11 position in October 1994,
and a GS-12 position in October 1995. The selectee was not promoted
to a GS-11 position until June 1995, and to a GS-12 position until July
1997.<2> Accordingly, we find that because the selectee's promotion to
a GS-11 position was not automatic, and petitioner's promotions outpaced
the selectee's, petitioner would not be entitled to retroactive relief.
Petitioner also contends that she is entitled to retroactive relief
for any cash awards she may have received but for the discrimination,
based on a comparison with the selectee. The Commission notes that a
back pay award provided as a result of a finding of discrimination in
a non-selection should be calculated as if the petitioner had performed
satisfactory work, or at the Fully Successful level. See, e.g., Wilson
v. Department of Transportation, EEOC Petition No. 04920005 (August 6,
1994). Cash awards are based on the quality of an individual employee's
performance. To allow a petitioner, in a non-selection case, to receive
compensation for a higher level of performance not exhibited, would
be too speculative. See Schellenberg v. Department of Transportation,
EEOC Appeal No. 01944126 (December 13, 1994).
After thorough review, the Commission finds that the agency is in full
compliance with our previous order. Accordingly, we deny the petition.
STATEMENT OF PETITIONER'S RIGHTS ON PETITION FOR ENFORCEMENT
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have
the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in
some jurisdictions have interpreted the Civil Rights Act of 1991 in a
manner suggesting that a civil action must be filed WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision. To ensure
that your civil action is considered timely, you are advised to file
it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this
decision or to consult an attorney concerning the applicable time period
in the jurisdiction in which your action would be filed. If you file
a civil action, YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE
PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING
THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to
do so may result in the dismissal of your case in court. "Agency" or
"department" means the national organization, and not the local office,
facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
December 16, 1999
_______________ ___________________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Petitioner, who asserts that the selectee's GS-12 position has promotion
potential to a GS-13 position, presents no evidence to rebut the agency's
denial of this assertion.