Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionApr 18, 2014
0720130032 (E.E.O.C. Apr. 18, 2014)

0720130032

04-18-2014

Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.


Complainant,

v.

Anthony Foxx,

Secretary,

Department of Transportation

(Federal Aviation Administration),

Agency.

Appeal No. 0720130032

Hearing No. 570-2009-00765X

Agency No. 200922470FAA02

DECISION

Dismissal of Agency's Appeal

By Notice of Appeal both dated and faxed on July 22, 2013, the Agency filed an appeal with this Commission from the April 10, 2013 Administrative Judge's decision finding the Agency retaliated against Complainant with respect to two non-selections in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

The record indicates that the Administrative Judge's (AJ's) decision was faxed to the Agency on April 11, 2013. The hearing record was received by the Agency on April 16, 2013. On May 24, 2013, the Agency issued its final order declining to implement the AJ's decision. Simultaneously, on May 24, 2013, the Agency filed a notice of appeal with the AJ rather than the EEOC's Office of Federal Operations as required by 29 C.F.R. �� 1614.110(a) and .403(a).

On July 22, 2013, the Agency apparently realized its error and filed its appeal with the Office of Federal Operations. In that appeal, the Agency conceded that it erred in originally filing its appeal with the AJ and requested that its mistake be excused. The Agency justified its error as a result of "turmoil" within its legal department due to extra duties imposed on it to provide legal advice to management regarding the proper implementation of sequestration-related furloughs.

The Commission has previously held that when provided with the proper address, filing at the wrong address does not constitute a proper filing. See Pacheco v. United States Postal Service, EEOC Request No. 05930700 (September 10, 1993) (appeal untimely when sent to wrong address despite receipt of proper instructions); Meggitt v. United States Postal Service, EEOC Appeal No. 01A40408 (February 3, 2004) (above principle applied to a formal complaint that was untimely filed). We find that the Agency failed to properly file its appeal in a timely manner. We also find that it has failed to provide adequate justification for waiving the time limits for filing its appeal.

Accordingly, the Agency's July 22, 2013 appeal is hereby DISMISSED as untimely filed. See 29 C.F.R. � 1614.403(c). Therefore, the AJ's decision becomes the final decision in this matter.

The AJ's Decision

In her decision, which followed a three-day hearing, the AJ concluded that Complainant had been unlawfully retaliated against for engaging in protected EEO activity when she was not selected for the positions of Safety Management System (SMS) Policy Manager position (advertised under Vacancy Announcement AWA-AJS-09-MM46191-12525) and SMS Promotion Manager position (advertised under Vacancy Announcement AWA-AJS-09-MM56572-12645).

The AJ found that Complainant "was the plainly superior candidate" for both the Policy Manager and Promotion Manager positions. The AJ found that the Agency's selection process "was fraught with inconsistencies which raised questions about the legitimacy of its conclusions." The AJ noted that with respect to the Policy Manager position, the objective evidence revealed that Complainant's application and interview performance were rated plainly superior to the selectee, but the selecting official chose to ignore the objective evidence of her superior qualifications. The AJ did not find the selecting official credible.

Likewise for the position of Promotion Manager, the AJ found that Complainant scored higher than the selectee. The AJ emphasized that the selectee did not technically qualify for an interview because she did not have experience "in managing multifunction groups in the formulation of policy, plans, and strategies pertinent to safety management" which was identified as a Selective Placement Factor. In the initial screening, the Agency found the selectee did not have any qualifications related to this factor, and the AJ indicated that she should not have been considered further. The AJ again found that Complainant's qualifications were plainly superior to that of the selectee.

The AJ also reviewed the interview process and found it to problematic and unreliable. Although a scoring system was developed, it was not used consistently. The AJ noted that the interview panel's conclusions were not supported by its actual scores which raised questions about the legitimacy of its recommendations.

In conclusion, the AJ found that the evidence established that it was more likely than not that the decision not to select Complainant for promotion to either the Safety Promotion Manager position or Safety Policy Manager position was motivated by retaliation for Complainant's prior protected EEO activity.

Despite the dismissal of the Agency's appeal, we have carefully reviewed the record in this case compiled during the investigation and at the hearing. We conclude that substantial evidence supports the AJ's conclusion of unlawful retaliation with regard to the two non-selections. We find no basis to disturb the AJ's decision.

Accordingly, the AJ's decision finding that Complainant was unlawfully retaliated against in the two referenced non-selections is AFFIRMED. The matter is REMANDED to the Agency to comply with the Order of the AJ, as set forth below.

ORDER

Within 30 days of the date this decision becomes final, the Agency is ordered to take the following remedial and corrective actions:

I. The Agency shall offer to promote Complainant to the position of Safety Promotion Manager or Safety Policy Manager, or a substantially equivalent position, retroactive to June 11, 2009.

2. The Agency shall determine the appropriate amount of back pay plus interest and other benefits due to Complainant pursuant to 29 C.F.R. � 1614.501 and 5 C.F.R. � 550.805. Complainant shall cooperate with the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, the Agency shall issue a check to Complainant for the undisputed amount within 30 days of the date this decision becomes final. Complainant may contest the Agency's back pay award in accordance with the appellate procedures.

3. The Agency shall pay Complainant the amount of $85,000 in non-pecuniary compensatory damages.

4. The Agency shall require the responsible selecting official (identified in the AJ's decision by name) to take eight (8) hours of EEO training in the provisions of Title VII of the Civil Rights Act of 1964, with an emphasis on non-discrimination and the prohibition against retaliation for engaging in protected EEO activity.

5. The Agency shall pay reasonable attorney's fees of $140,406.90 and costs of $9,309.40.

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.

POSTING ORDER (G0610)

The Agency is ordered to post at its Office of Safety in Washington, DC, 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 (H0610)

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 (K0610)

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 77960, Washington, DC 20013. 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 (M0610)

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), at 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 77960, Washington, DC 20013. 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 (S0610)

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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

April 18, 2014

__________________

Date

2

0720130032

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0720130032