01a42012
07-20-2005
Edward C. Johnson, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Edward C. Johnson v. Department of the Interior
01A42012
July 20, 2005
.
Edward C. Johnson,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A42012
Agency Nos. WBR-01-016 & WBR-01-032
Hearing Nos. 380-2001-08218X & 380-2002-8078X
DECISION
Complainant filed an appeal with this Commission concerning the agency's
alleged non-compliance with an agency final action.
A review of the record reveals that, during the relevant time, complainant
was employed as a Utilityman at the Yakima Field Office, Bureau of
Reclamation (BOR). Believing that he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed two formal
complaints on March 1, 2001 and August 7, 2001. In the first complaint
(Agency No. WBR-01-016), complainant alleged discrimination on the
basis of age when, on November 30, 2000, complainant was not selected
for the position of Craftsman, BB-4742-00, that was advertised under
Vacancy Announcement No. UCAO-01-09. In the second complaint (Agency
No. WBR-01-032), complainant alleged discrimination on the basis
of reprisal when he was subjected to a hostile work environment and
transferred to another work crew on May 10, 2001.
At the conclusion of the investigation, complainant received a copy
of the investigation report and requested a hearing before an EEOC
Administrative Judge (AJ). A hearing was held before an AJ on August
26th, August 27th, September 12th and September 25, 2003. Following the
hearing, the AJ issued a decision on September 29, 2003, finding that
the agency discriminated against complainant on the basis of age when
the agency failed to select complainant for the craftsman position in
November 2000. The AJ further found that the agency did not discriminate
against complainant on the basis of reprisal for prior EEO activity for
allegedly treating complainant differently or subjecting him to a hostile
work environment and then transferring him between February and May 2001.
On November 24, 2003, the agency issued a decision finding discrimination.
The agency fully implemented the AJ's decision.
The agency ordered the following relevant remedies:
The BOR is ordered to reconduct the selection for Vacancy Announcement
No. VACO-01-09. Neither [the Water Storage Supervisor at the Yakima
Field Office] or any other BOR official involved in the previous
selection process shall participate in this current selection. The BOR
shall complete the selection process within 30 calendar days of the
[agency's] final order.
If [complainant] would have been selected for the position in the absence
of age, the BOR shall place either [complainant] in the craftsman
position retroactive to the date on which the selectee assumed the
duties of the position. The BOR shall accomplish this action within
45 calendar days of the date this decision becomes final.
If one of the other candidates would have been selected absent
age discrimination, the BOR is not required to provide retroactive
placement in the position or back pay to [complainant]. In this case,
[complainant] will be issued a final decision to this effect with
appropriate appeal rights.
On January 27, 2004, complainant initially filed a petition with the
Commission for enforcement of the provision 1 of the remedy in the
agency's November 24, 2003 final decision.
Subsequently, on April 6, 2004, the agency issued a decision finding
that the selection process of Vacancy Announcement UCAO-01-09<1> was
conducted in a non-discriminatory manner without regard to complainant's
age and in accordance with the agency's November 24, 2003 decision.
The agency stated that complainant's application was reviewed along with
other qualified applicants and complainant was not selected.
Thereafter, complainant appealed to the Commission from the agency's
April 6, 2004 decision on the reselection process. Complainant has not
indicated the reason as to his appeal.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that a final decision
that has not been the subject of an appeal or civil action shall be
binding on the agency. It further provides that if a complainant believes
that the agency has failed to comply with the terms of a decision, he
may request that the terms of the decision be specifically implemented
or that the complaint be reinstated for further processing.
Upon review of the record, we find that complainant failed to show that
the agency did not comply with provision 1 of the remedy in the agency's
November 23, 2003 final decision. The record indicates that none of the
BOR officials involved in the previous selection process were involved
in the reselection process. Significantly, on December 4, 2003, the
Supervisory Human Resources Specialist, Pacific Northwest Region Human
Resources Office, mailed various documents to the BOR Area Manager,
Northern California Area Office, Shasta Lake, California. The Area
Manager had no involvement in the initial selection process. The Area
Manager was advised that the Region had to go through the process of
making an independent, non-discriminatory selection for the Craftsman
position, Vacancy Announcement UCAO-01-09. The Area Manager was asked
to perform the role of Subject Matter Expert and Selecting Official.
The Area Manager agreed to undertake this process. During the entire
process, the Area Manager was never informed of the name of complainant,
never informed of the specifics of the EEO complaint(s) giving rise to
the reselection process, nor was he informed as to who was the final
selection for the position. Furthermore, the Area Manager had no
contact with the previous selecting official. Moreover, complainant has
not challenged that any BOR official involved in the previous selection
process participated in the reselection process. Therefore, under
the circumstances, we find that the Area Manager acted in good faith and
the agency substantially complied with provision 1 of the remedy in the
agency's November 24, 2003 final decision.
The agency's decision that it is in compliance with its November 24,
2003 final decision is AFFIRMED.
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 (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
July 20, 2005
__________________
Date
1Formerly Vacancy Announcement VACO-01-09.