04a40033
01-10-2005
David A. Hashimoto, Petitioner, v. Alphonso Jackson, Acting Secretary, Department of Housing and Urban Development, Agency.
David A. Hashimoto v. Department of Housing and Urban Development
04A40033
January 10, 2005
.
David A. Hashimoto,
Petitioner,
v.
Alphonso Jackson,
Acting Secretary,
Department of Housing and Urban Development,
Agency.
Petition No. 04A40033
Appeal No. 01A24642
Agency No. SE-98-07
DECISION ON A PETITION FOR ENFORCEMENT
On August 17, 2004, the Equal Employment Opportunity Commission (EEOC
or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in David A. Hashimoto v. Department of
Housing and Urban Development, EEOC Appeal No. 01A24642 (May 11, 2004).
This petition for enforcement is accepted by the Commission pursuant
to 29 C.F.R. � 1614.503. Petitioner alleged that the agency failed to
fully comply with the Commission's order.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the bases of race (Asian), national origin
(Asian), and in reprisal for prior EEO activity. Petitioner appealed
the agency's final decision dismissing his complaint to the Commission.
In EEOC Appeal No. 01A24642, the Commission found that the agency
discriminated against petitioner when, on June 8, 1998, he was not
selected at the GS-15 grade level for the Community Builder position.
The order also specified that the agency had to: (1) reimburse back pay
and benefits lost as a result of the agency's failure to select petitioner
to the Community Builder position at the GS-15 level; (2) consider
taking disciplinary action against the responsible management officials;
(3) provide EEO training to the responsible management officials; (4)
post copies of the Notice to Employees for sixty (60) consecutive days,
in conspicuous places at the Seattle Regional Office; and (5) conduct a
supplemental investigation on the issue of petitioner's entitlement to
compensatory damages.
The matter was assigned to a compliance officer and docketed as Compliance
No. 06A40744 on May 11, 2004. On August 17, 2004, petitioner submitted
the petition for enforcement at issue. Petitioner contends that the
agency failed to comply with the EEOC's order, except for a request by the
agency for evidence of compensatory damages which was sent to petitioner
on August 16, 2004. The agency did not respond to petitioner's petition,
but submitted a "Compliance Report" to the Commission on December 23,
2004 which asserts that it has fully complied with the EEOC's order.
ANALYSIS AND FINDINGS
The agency is required to make petitioner "whole" by restoring her
to a position in which she would have been were it not for its acts
of unlawful discrimination. Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418 (1975). It must, therefore, provide a remedy unless it can show,
by clear and convincing evidence, that petitioner would not have been
entitled to that remedy even absent discrimination. Davis v. Department
of Justice, EEOC Request No. 05931205 (September 1, 1994); Day v. Mathews,
530 F.2d 1083, 1085(D.C. Cir. 1976); 29 C.F.R. �1614.501(c)(2).
Back Pay
In its decision on EEOC Appeal No. 01A24642, the Commission ordered the
agency to award petitioner back pay, with interest, for all wages and
benefits lost as a result of the agency's failure to place petitioner
in the GS-15 Community Builder position. The Commission recognizes
that precise measurement cannot always be used to remedy the wrong
inflicted, and therefore, the computation of back pay awards inherently
involves some speculation. Hanns v. United States Postal Services, EEOC
Petition No. 04960030 (September 18, 1997). The Commission has held that
uncertainties involved in a back pay determination should be resolved
against the agency which has already been found to have committed acts
of discrimination. Id. See also Davis v. United States Postal Service,
EEOC Petition No. 04900010 (November 29, 1990); and Besemer v. United
States Postal Service, EEOC Petition No. 04890005 (December 14, 1989).
The agency asserts in its Compliance Report that it paid petitioner
retroactive back pay, with interest, at the GS-15 level for the
period covering March 15, 1998 through June 5, 1999 in the amount
of $9,716.10. The agency further claims that petitioner previously
received reimbursement of back pay in the amount of $3,130.00 for the
period covering June 6, 1999 through January 2, 2000 (the date petitioner
was officially promoted to the GS-15 level). The Compliance Report is
dated December 23, 2004 and does not specify when petitioner received the
reimbursed back pay. In addition, there is no evidence that petitioner
actually received payment. Accordingly, we find that the agency has not
complied with our order with respect to back pay. We remind the agency
that interest is computed on net back pay, rather than gross back pay.
Wrigley v. United States Postal Service, EEOC Petition No. 04950005
(February 15, 1996). In addition, petitioner is entitled to interest
on any unpaid back pay since August 9, 2004 (the 60-day deadline to
calculate and reimburse back pay). Allen v. Department of the Interior,
EEOC Request No. 05970352 (August 11, 1999).
Supplemental Investigation on Compensatory Damages
The agency has provided documentation that it requested evidence of
compensatory damages from petitioner on August 16, 2004. However, this
request was sent to the wrong address. According to statements made by
petitioner in his petition, it appears that he has, nevertheless, received
the request for evidence in support of his claim for compensatory damages.
According to the agency's Compliance Report, petitioner has not yet
responded to such request. There is no other evidence with respect
to this issue in the record. Accordingly, we cannot conclude that the
agency has failed to comply with our order on this issue.
Disciplinary Action and Training for Responsible Management Official
The agency claims that one of the responsible management officials no
longer works at the agency. Accordingly, the agency claims that it could
not implement disciplinary action or training. However, there is no
evidence in the record to support this assertion. Moreover, there were
two responsible management officials involved in the discrimination.
Accordingly, we find that the agency has not complied with our order
with respect to these two issues.
Posting of Notice to Employees
The evidence in the record shows that the agency posted the Notice to
Employees from November 3, 2004 through January 2, 2005. Accordingly, we
find that the agency complied with our order with respect to this issue.
Based upon a review of the record and the submissions of the parties,
and for the foregoing reasons, the Commission grants the Petition for
Enforcement, in part. The Commission finds that the agency has not fully
complied with the Commission's order. The agency shall implement the
order for relief set forth below.
ORDER
1. The agency shall tender to petitioner, in accordance with paragraph
two, set forth below, back pay and benefits lost as a result of the
agency's failure to select petitioner in the Community Builder position
at the GS-15 level under VA02. The back pay period starts on the date
petitioner would have commenced the Community Builder position absent
discrimination (i.e., when all other selectees commenced their positions,
rather than when petitioner actually started his GS-14 level position,
since it appears from the record that petitioner delayed his acceptance
of the position because it was initially graded at the GS-13 level).
The back pay period ends on the date petitioner was promoted to the
GS-15 level.
2. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due petitioner, including all salary
increases, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. Back pay shall
be calculated retroactively starting on the date petitioner was offered
the Community Builder position advertised under vacancy announcement
number OS-MST-98-0002. The petitioner 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 the petitioner for the undisputed amount within
sixty (60) calendar days of the date the agency determines the amount
it believes to be due. The petitioner 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. The agency shall consider taking disciplinary action against the
agency officials found to have discriminated against petitioner (i.e.,
SO1 and SO2). The agency shall report its decision to the Commission.
If the agency decides not to take action, it shall set forth the reason(s)
for its decision not to impose discipline.
4. The agency shall provide EEO training to the agency officials found to
have discriminated against petitioner. The training shall focus on rights
and responsibilities under Title VII. The agency is advised that the
Commission does not consider such training to be a disciplinary action.
5. If petitioner has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he 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.
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 backpay and other benefits due petitioner,
including evidence that the corrective action has been implemented.
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
petitioner. If the agency does not comply with the Commission's order,
the petitioner may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The petitioner 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 petitioner 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 petitioner 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.
PETITIONER'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
January 10, 2005
__________________
Date