0520140537
03-13-2015
Complainant v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Complainant
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Request No. 0520140537
Appeal No. 0120112237
Agency No. HS-10-ICE-00443
DENIAL
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120112237 (July 25, 2014). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
BACKGROUND
Previous Decision
In our previous decision, we reversed the Agency's final decision, finding that Complainant established that he was subjected to discrimination as alleged. Specifically, we found that Complainant established that the Agency's reasons for not selecting him for the Deportation Officer position at issue were pretext for discrimination based on race.
ARGUMENTS ON RECONSIDERATION
Agency's Request for Reconsideration
In its request for reconsideration, the Agency, in pertinent part, reiterates that the selecting officials valued the selectees' work in the Travel Unit, and Complainant had no such experience. The Agency maintains that, although Complainant had been employed by the Agency for approximately 13 years, he did not have the experience sought by the selecting officials. The Agency asserts that, although we determined that Complainant's qualifications were plainly superior based on his performance appraisal record, the candidates were not required to submit their ratings and the selecting officials did not consider such ratings. The Agency also argues that our previous decision erred in noting that Complainant was given a rating score of 96, while two of the selectees were given ratings of 92 and 90. The Agency states that the recommending and selecting officials did not know these rating scores because the certificates used to make the selections did not contain them. The Agency additionally maintains that we improperly relied on Complainant's supervisor's belief that Complainant was more qualified than many of the selectees. The Agency asserts that the supervisor did not possess the same information as the selecting officials. The Agency additionally argues that we improperly relied on Complainant's unsupported assertions that assignment to the Travel Unit was neither voluntary nor based on requests, and that only one other Deportation Officer had prior experience in the Travel Unit. Lastly, the Agency asserts that we erred in relying on employees' testimony that the Agency had a history of not selecting African-American candidates for the Deportation Officer position.
ANALYSIS AND FINDINGS
Upon review, we find the Agency has not met the criteria for reconsideration. As noted above, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here. Notwithstanding the Agency's arguments in its request, there is no dispute that all of the selectees were outside Complainant's protected class and most had less experience in the Agency overall. There is also no dispute that Complainant's supervisor felt that Complainant should have been selected, and more than one employee stated the Agency had a history of not selecting African-American employees for the position. While the Agency may disagree with the previous decision, it has not shown that that McDonnell Douglas tripartite analysis was improperly applied or that the decision in fact was clearly in error.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120112237 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ordered to take the following remedial actions within 60 days of the date this decision becomes final:
(1) Retroactively promote Complainant to the position of Deportation Officer, GS-12, or a substantially equivalent position, as of September 8, 2009.
(2) Provide Complainant back pay from September 8, 2009, until the date he is placed in the position of Deportation Officer. The Agency shall determine the appropriate amount of back pay (with interest, if applicable) and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in 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 and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
(3) Conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages incurred as a result of the Agency's discriminatory actions in this matter. The Agency shall afford Complainant 60 days to submit additional evidence in support of a claim for compensatory damages. Within 45 days of its receipt of Complainant's evidence, the Agency shall issue a final decision determining Complainant's entitlement to compensatory damages, together with appropriate appeal rights.
(4) The Agency shall provide a minimum of eight hours of EEO training to all responsible management officials in the Boston Field Office regarding their responsibilities under EEO laws, with a special emphasis on Title VII.
(5) The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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. If any of the responsible management officials have left the Agency's employment, then the Agency shall furnish documentation of the departure date(s).
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 evidence that corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Boston Field Office in Burlington, Massachusetts, copies of the attached notice facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (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
March 13, 2015
Date
2
0520140537
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140537