01A05264
08-14-2002
Dan Mathis, Jr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Dan Mathis, Jr. v. Department of Defense
01A05264
08-14-02
.
Dan Mathis, Jr.,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A05264
Agency No. COL-97CA0561E
Hearing No. 140-98-8813X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant maintained that he was discriminated against on the bases
of race (Black) and age (64) when he was not selected for the temporary
position of Acting Produce Department Manager. After the complaint
was investigated and a report of investigation was issued, complainant
requested a hearing before an EEOC Administrative Judge (AJ). Without a
hearing, the AJ issued a finding of discrimination based on race and age
and ordered in relevant part that the agency: (1) provide the complainant
with the opportunity for placement in the position of Acting Produce
Department Manager for a 120 day detail or a substantially equivalent
position; and (2) pay the complainant the difference in pay had he been
assigned to the 120 day detail. The agency agreed to fully implement the
AJ's decision and ordered with respect to item (2) to pay the complainant
the amount due in back pay for a 120-day temporary promotion and credit
complainant for a temporary promotion in his federal service record.
In his complaint, complainant requests reinstatement to his position
as a Store Worker since he had retired from the agency during the
EEO process. Complainant maintains that he was forced to retire due
to the ongoing discrimination that he experienced.<1> We find that
since complainant has retired from the agency, the order to provide
complainant with the opportunity for placement in the position of
Acting Produce Manager for a 120-day detail cannot be carried out.
The rest of the order however, should be implemented. As such, after
a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
establish that discrimination occurred.
ORDER
To the extent that it has not already done so, the agency is ordered to:
1. Within 30 days, pay the complainant the difference in pay as if he had
been assigned to the 120-day temporary promotion and credit complainant
for a temporary promotion in his federal service record.
2. Require and provide EEO training for the members of Commissary
management, including the selecting official.
3. The Commissary shall post a notice, which states that a finding of
discrimination against the agency has been made, and that all employees
are entitled to be free from discrimination. This notice shall be placed
in a prominent location within the commissary where employees regularly
gather and shall remain visible for a period of 90 days.
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 of the
agency's calculation of back pay and any other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Fort Bragg, North Carolina 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.
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).
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 (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
___08-14-02_______________
Date
1 Complainant maintains in his appeal statement that he was forced to
retire due to the ongoing discrimination that he experienced. We note
that this allegation should be processed as a separate complaint of
discrimination under 29 C.F.R. � 1614.106. Complainant is advised that if
he wishes to pursue, through the EEO process, the additional allegation he
raised for the first time on appeal, he shall initiate contact with an EEO
Counselor within 15 days after he receives this decision. The Commission
advises the agency that if complainant seeks EEO counseling regarding
the new allegation within the above 15 day period, the date complainant
filed the appeal statement in which he raised this allegation with the
agency shall be deemed to be the date of the initial EEO contact, unless
he previously contacted a counselor regarding these matters, in which
case the earlier date would serve as the EEO Counselor contact date.
See Alexander J. Qatsha v. Dept. of the Navy, EEOC Request NO. 05970201
(January 16, 1998).