01A31228_r
09-30-2003
Carolyn B. Cooksie, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Carolyn B. Cooksie v. Department of Agriculture
01A31228
September 30, 2003
.
Carolyn B. Cooksie,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A31228
Agency No. 981011
Hearing No. 100-A0-7384X
DECISION
On May 23, 2002, complainant filed an appeal with the Commission alleging
that the agency failed to comply with a final decision issued by the
agency on September 28, 2001.
The record reveals that during the relevant time, complainant, an SES
employee, was employed as the Deputy Administrator, Farm Loan Program, at
the agency's Farm Service Agency in Washington, D.C. Complainant filed
a formal complaint alleging that she was discriminated against on the
bases of race (Black) and sex (female) when:
Complainant was not selected for the position of Deputy Administrator,
Single Family Housing (DA-SFH), SES-ES-1165-00, advertised under Vacancy
Announcement Number RD-RHS-SES-98-01, on or around July 24, 1998.
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
On July 31, 2001, the AJ issued a decision finding that complainant was
discriminated against on the bases of race and sex, when she was not
selected for the Deputy Administrator position in July 1998.
The agency issued a final decision on September 28, 2001, fully
implementing the AJ's decision as clarified by the AJ's subsequent order
of September 7, 2001. Accordingly, the agency's final decision required
the agency to implement the relief ordered by the AJ. The September 7,
2001 �Clarification Order� by the AJ provided:
I ORDER the Agency to provide [complainant] priority placement for
the next available SES vacancy in RHS [Rural Housing Services] or RD
[Rural Development] for which [complainant] is qualified. Pursuant to
29 C.F.R. � 1614.501(b)(2000), the offer of a position should be made
in writing and should provide [complainant] fifteen days from receipt
to accept or decline the offer. The obligation to provide priority
placement is not ongoing, and the Agency's obligation ceases when
[complainant] either accepts or declines a reasonable offer which meets
the above guidelines.
In her Petition for Enforcement, delivered to the agency on November 15,
2001, complainant notified the agency that she believed the agency was
not in compliance with the July 31, 2001 and September 7, 2001 orders.
Specifically, complainant alleged that she was not offered priority
placement for the next available SES vacancy in RHS or RD for which she
is qualified (or a substantially equivalent position). The agency did
not respond to complainant's November 15, 2001 notice of non-compliance.
Based on the record, we deem the agency's failure to respond as being a
denial of complainant's contentions that the agency has failed to comply
with its final decision.
Complainant subsequently filed an appeal with the Commission. Complainant
maintains on appeal that the agency has not complied with the provision
regarding priority placement as ordered by the AJ. Complainant states
that instead of being offered an SES position in RHS or RD for which
she is qualified, by letter offers dated October 19 and 22, 2001,
the agency offered complainant an administrative position as Deputy
Administrator for Operations and Management, ES-341-00, (DA-OM), which
position does not focus on directing and implementing housing programs,
namely, housing loans and housing development. Complainant argues that,
contrary to the AJ's order, she is only minimally qualified for the
offered position which provides planning, development and administration
for management program policies and operational support.
Additionally, complainant claims the offered position opened on May 17,
2001 and closed on June 15, 2001, more than 45 days before the issuance
of the AJ's initial decision. Complainant contends the offered position
is thus outside the scope of the AJ's order in that it is not the
"next" vacancy occurring or created after the AJ's order was issued.
Complainant therefore requests that the agency be ordered to withdraw
its letter offers of October 19th and 22nd, 2001 and continue its search
for an SES position within RD or RHS, in housing, for which complainant
is qualified. Complainant requests an additional award of attorney's
fees to compensate her for the additional expense she has incurred to
compel the agency to comply with the AJ's orders, including the agency's
failure to adequately calculate the monetary award due complainant.
We find the record before us inadequate to determine whether the agency
has complied with its final decision. We find no documentation regarding
the letter offers of priority placement from
the agency, as described by complainant. Nothing in the file provides
the Commission with a basis upon which to determine whether the agency
has fully implemented the relief ordered by the AJ.
Accordingly, the agency's determination that it implemented the relief
stated in the AJ's September 7, 2001 Clarification Order is VACATED and
the matter is REMANDED for further processing in accordance with the
Order herein.
ORDER
The agency shall provide documentation in the record indicating whether
it has fully implemented the priority placement relief as specified in
the Clarification Order dated September 7, 2001. Within 30 calendar
days of the date that this decision become final, the agency shall issue
a decision on complainant's claim that the agency failed to comply with
the agency's final order dated September 28, 2001, regarding the priority
placement relief.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced below.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
September 30, 2003
__________________
Date