04A10039_r
01-27-2003
Bharat V. Sheth, Petitioner, v. Thomas E. White, Secretary, Department of the Army, . Petition No. 04A10039 Appeal No. 01974658 Agency No. 09510F0230 Hearing No. 110-98-8307X
Bharat V. Sheth v. Department of the Army
04A10039
January 27, 2003
.
Bharat V. Sheth,
Petitioner,
v.
Thomas E. White,
Secretary,
Department of the Army, .
Petition No. 04A10039
Appeal No. 01974658
Agency No. 09510F0230
Hearing No. 110-98-8307X
DECISION ON A PETITION FOR CLARIFICATION
On April 18, 2001, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for clarification from the agency
requesting clarification of our decision set forth in Bharat V. Sheth
v. Department of the Army, EEOC Petition No. 04A10011 (March 8, 2001).
This petition for clarification is accepted by the Commission pursuant
to 29 C.F.R. � 1614.503.
Complainant filed a complaint in which he alleged that the agency
discriminated against him on the bases of race (Asian), national origin
(India), religion (Hindu), age (51), and in reprisal for prior EEO
activity. Complainant appealed the agency's final decision finding
no discrimination to the Commission. In EEOC Appeal No. 01974658
(Dec. 15, 1998), the Commission found that complainant was subjected to
discrimination when he was not selected for the position of GS-830-12
Supervisory Mechanical Engineer.<1> The Commission ordered the agency
to promote complainant to a GS-830-12 Supervisory Mechanical Engineer
position, or an equivalent position, retroactive to the date the two
selectees (STs) were promoted, together with the appropriate amount of
backpay and other benefits due petitioner.
On September 29, 2000, complainant submitted a petition for enforcement.
Complainant claimed that the agency failed to: (1) promote him to
the GS-12 Supervisory Mechanical Engineer or equivalent position; (2)
determine the appropriate amount of backpay and other benefits due;
(3) to issue a check to him for the undisputed amount of backpay; and
(4) pay his attorney's fees.
In EEOC Petition No. 04A10011, the Commission found that the agency acted
with due diligence in all actions connected to complainant's promotion,
and that delays were unavoidable and beyond the agency's control under
the circumstances of the case. The Commission found, however, that while
complainant was promoted to the GS-12 Supervisory Mechanical Engineer
position, he was then reassigned to a GS-12 Supervisory Environmental
Engineer position which was not substantially equivalent to a Supervisory
Mechanical Engineer position. Specifically, the Commission noted
that the Supervisory Environmental Engineer position was not in the
management job series with accompanying future promotion potential
and did not include the ability to supervise subordinate personnel.
The Commission ordered the agency to reassign complainant to the position
for which he was originally not selected, i.e., as Supervisory Mechanical
Engineer, GS-830-12, or an equivalent position. The decision stated that
the position must have supervisory responsibilities at least equal to
those of the position for which complainant was originally not selected.
Further, the Commission stated that if no such position is now available,
complainant must be given the position occupied by one of the two original
selectees for the Supervisory Mechanical Engineer position, GS-830-12.
On April 6, 2001, the agency filed a request for clarification of
the decision in EEOC Petition No. 04A10011. The agency claimed that
due to an A 76/commercial activities study, the completion of which
resulted in the contracting out of functions within the activity, it is
impracticable for the agency to comply with the EEOC decision. The agency
noted that complainant was retroactively promoted to the position of
GS-12 Supervisory Mechanical Engineer position in compliance with the
Commission's decision. The agency stated, however, that following the
commercial activities study, the GS-12 Supervisory Mechanical Engineer
position, to which complainant was reassigned, was abolished along with
approximately 140 other positions. The agency stated that following
complainant's retroactive promotion, the agency underwent a RIF and that
as a result of the RIF, complainant was scheduled to be down graded to
a GS-7 Draftsman position. The agency stated that since he had just
recently been promoted to the GS-12 Supervisory Mechanical Engineer
position pursuant to the Commission's decision, complainant was offered a
GS-12 Environmental Engineer position in lieu of RIF. The agency argued
that it cannot place complainant in one of the original positions for
which he was not selected because these positions were abolished as a
result of the commercial activities study. The agency noted that the
only remaining supervisory GS-12 position available is a Supervisory
Environmental Engineer position, for which complainant is not qualified.
The agency claimed that it acted in good faith in reassigning complainant
in lieu of RIF and argued that it has complied with the Commission's
previous decision in EEOC Appeal No. 01974658.
In response to the agency's petition, complainant argues that the agency's
request for clarification should be dismissed as untimely. Alternatively,
complainant claims that the GS-12 Supervisory Environmental Engineer
position is substantially equivalent to that of the GS-12 Supervisory
Mechanical Engineer position. Complainant states that he is qualified to
fill the GS-12 Supervisory Environmental Engineer position. Complainant
contends that the Commission should order the agency to place him in
the position of GS-12 Supervisory Environmental Engineer and afford
him a reasonable period of time to attain the experience and knowledge
required to supervise the division. Alternatively, complainant states
that the Commission should remand this matter to an EEOC Administrative
Judge for a determination of whether the position of GS-12 Supervisory
Environmental Engineer is substantially equivalent to that of GS-12
Supervisory Mechanical Engineer and whether complainant is qualified to
fill that position.
Upon review, the Commission finds that the agency is in compliance with
the order set forth in EEOC Appeal No. 01974658. The Commission's
previous decision in EEOC Appeal No. 01974658 ordered the agency to
promote complainant to the position of GS-830-12 Supervisory Mechanical
Engineer, or an equivalent position, retroactive to the date that the two
selectees were promoted. The record reveals that the agency promoted
complainant to the position of GS-830-12 Supervisory Mechanical Engineer
retroactive to September 22, 1991, and paid the backpay and benefits
in accordance with this retroactive promotion.<2> The record further
reveals that in 2000 the GS-12 Supervisory Mechanical Engineer position,
to which complainant was promoted, was abolished along with approximately
140 other positions within the agency. The record reveals that prior
to the abolishment of his position through a RIF, the agency reassigned
complainant to a GS-12 Environmental Engineer position in lieu of the RIF.
The Commission finds that absent discrimination, complainant would have
secured the position of GS-830-12 Supervisory Mechanical Engineer in
September 1991, and therefore would have been subjected to the resulting
RIF in 2000, which abolished the agency's only remaining Supervisory
Mechanical Engineer position.<3> Since the agency restored complainant to
the position he would have been in absent discrimination by retroactively
promoting complainant to the GS-830-12 Supervisory Mechanical Engineer
position effective September 22, 1991, we find that the agency has
fulfilled its compliance in this matter.
CONCLUSION
Based on a review of the record, and for the foregoing reasons, the
Commission GRANTS the agency's Petition for Clarification of the Order in
Bharat V. Sheth v. Department of the Army, EEOC Petition No. 04A10011
(March 8, 2001). We find that the agency fully complied with the
Commission's Order in EEOC Appeal No. 01974658 (December 15, 1998).
Therefore, the Order in EEOC Petition No. 04A10011 is no longer in effect.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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. 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 (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
January 27, 2003
__________________
Date
1The agency filed a request for reconsideration
of the Commission's decision, which was denied in EEOC Request
No. 05990304 (July 21, 2000).
2The record reveals that of the two positions for which complainant was
originally not selected, this was the only position remaining after a
1998 reorganization.
3We note that complainant does not allege that the RIF itself was
discriminatory.