Carl Huie, Complainant,v.Michael K. Powell, Chairman, Federal Communications Commission Agency.

Equal Employment Opportunity CommissionNov 2, 1995
05A40177 (E.E.O.C. Nov. 2, 1995)

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.