05A40177
11-02-1995
Carl Huie, Complainant, v. Michael K. Powell, Chairman, Federal Communications Commission Agency.
Carl Huie v. Federal Communications Commission
05A40177
03-31-04
.
Carl Huie,
Complainant,
v.
Michael K. Powell,
Chairman,
Federal Communications Commission
Agency.
Request No. 05A40177
Appeal No. 01A22474
Agency No. FCC-EEO-00-4
DECISION ON REQUEST FOR RECONSIDERATION
On November 10, 2003, the Federal Communications Commission (agency)
timely initiated a request to the Equal Employment Opportunity
Commission (the Commission or EEOC) to reconsider the decision in Carl
Huie v. Federal Communications Commission, EEOC Appeal No. 01A22474
(September 29, 2003). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. � 1614.405(b). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or more
of the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Id. For the reasons set forth herein, the agency's request
is denied.
BACKGROUND
In the previous decision, the Commission held that the agency retaliated
against the complainant when it failed to select him for the position
of collateral duty equal employment opportunity (EEO) counselor because
his EEO complaints were pending resolution at the time of the selection
decision. On request for reconsideration, the agency claimed, among
other things, that the previous decision overlooked a material fact.
While not conceding that retaliation motivated the selecting official's
decision to not select complainant, the agency's brief argued that even if
a discriminatory reason accounted for the selection decision, so too did
an overlooked non-discriminatory reason: the selecting official believed
that the complainant had lied to a superior about the selecting official.
ROI Ex. 8 at 79-80. For both reasons advanced, the selecting official
decided not to select complainant for the position.
The agency further argued that by overlooking this material fact, the
previous decision applied the wrong legal analysis, i.e., where both
a discriminatory and non-discriminatory reason motivated the agency's
actions, the mixed motive analysis of Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), or that of the Civil Rights Act of 1991, 42 U.S.C. �
2000e-2(m) must be applied.<1> Applying the mixed-motive analysis
produces a remedy different than that ordered by the previous decision.
Either no liability will attach (applying Price Waterhouse, supra) or if
liability is found (applying the civil Rights Act of 1991), the remedy
is limited to declaratory or injunctive relief: instatement into the
position is not an available remedy. The complainant did not address
this argument in his response to the agency's request to reopen.
ANALYSIS
We find the agency's argument, raised for the first time on request
for reconsideration, unavailing. In response to a question about the
application process, the selecting official explained why he did not
select complainant: 1. complainant's four to five pending complaints might
cause a conflict of interest in the office; 2. others might perceive the
agency as �trying to buy [complainant] off;� (ROI 74) 3. complainant
would have access to the agency's complaints processing system and
might breach confidentiality; 4. if selected, complainant would use the
collateral duty EEO counselor position to influence other complainants
against the agency; 5. the selecting official doubted the honesty of
complainant's motive in applying for the position, and believed he would
use the position to harm the agency; and 6. the selecting official had
heard that complainant had stated that if he could get the names of
everyone in the agency's complaints processing system, he could initiate
a class action by contacting them �one by one and bringing them into
[his] complaint system.� ROI 76. The selecting official concluded
by stating �So those were the...reasons that I used to justify my not
selecting [complainant].� Id. Following further discussion about the
selection process, the interviewer asked the selecting official about
complainant's veracity, and at that point, the selecting official put
forward �another reason� for not selecting complainant: that complainant
had lied to a superior about the selecting official. ROI 79-80.
On balance, when comparing the selecting official's first reasons for
not selecting complainant with this later-offered reason, we find the
later-offered reason not persuasive. Indeed, we find that were it a
contributing reason for the non-selection, the selecting official would
have offered it during his initial discussion of his reasons for not
selecting complainant. We find the timing of the last offered evidence
diminishes the selecting official's veracity, and consistent with the
Court's holding in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 517
(1993) (a fact finder may find for the complainant if the employer's
asserted reasons for its actions are not credible), we are persuaded
that unlawful retaliation against the complainant because of his previous
participation in the EEO process, and not retaliation for other non-Title
VII related reasons, motivated the selecting official to not select
complainant.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request does not meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the agency's request.
The decision of the Commission in Appeal No. 01A22474 is affirmed.
There is no further right of administrative appeal on the decision of
the Commission on a Request to Reconsider. The agency shall comply with
the Order in our prior decision as restated below.
ORDER (C0900)
The agency is ordered to take the following remedial action:<2>
A. Within thirty (30) days of the date this decision becomes final,
the agency shall appoint complainant to the position of EEO Counselor
(collateral duty, unpaid) and initiate the appropriate training regimen.
B. Within sixty (60) days of the date this decision becomes final,
the agency shall conduct no less than four (4) hours of training for
all supervisory and managerial employees who participated in the action
herein, addressing these employees' responsibilities with respect to
eliminating discrimination in the federal workplace and under the equal
employment opportunity laws. The training shall place special emphasis
on prevention and elimination of discrimination based on reprisal for
prior EEO activity. The Commission does not consider assignment to
training pursuant to this Order as a disciplinary action.
C. The agency shall consider appropriate disciplinary action against
all supervisory and managerial employees who participated in the
violation herein. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline.
D. The agency is directed to modify its requirements for the position
at issue herein so as to eliminate any bar based upon opposition to
discriminatory practices or participation in the EEO process and to
ensure that all managers and supervisors are aware of their obligation
not to interfere with employees' EEO rights.
E. 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. Copies should be sent
to the complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Washington, D.C. 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.
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
__________________
Date
1 The agency argued that the Civil Rights
Act of 1991 did not apply to a mixed motive action challenged on the
grounds of retaliation. The Commission has held to the contrary. Smith
v. Department of the Navy, EEOC Petition No. 03950060 (Nov. 2, 1995).
2Complainant did not request compensatory damages in remedy of his
complaint.