07A00024
10-08-2002
Franklin N. Hunt, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Franklin N. Hunt v. Defense Logistics Agency
07A00024
October 8, 2002
.
Franklin N. Hunt,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 07A00024
Agency No. XL-97-050
Hearing No. 160-98-8140X
DECISION
On February 29, 2000, an Equal Employment Opportunity Commission (EEOC or
Commission) Administrative Judge (AJ) issued a decision finding that the
agency<1> violated Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., when on or about May 6, 1997,<2>
it informed the complainant that he was not selected for promotion to
the position of Quality Assurance Specialist, GS-12.<3>
The agency stated in its April 10, 2000 final order declining to implement
the AJ's decision that it received the decision on March 3, 2000. As the
agency declined to fully implement the AJ's decision, it had until April
12, 2000, to issue its final order and file an appeal with the Commission.
29 C.F.R. � 1614.110(a). Upon review of the record, we find that while
the final order is dated April 10, 2000, the agency did not file an
appeal with the Commission until April 17, 2000, five days after the
expiration of the agency's 40-day time limit. It was filed by facsimile.
As noted by the attorney for the complainant, the agency conceded in its
appeal cover letter that while the final order was issued on April 10,
2000, it inadvertently omitted the Commission from mailing of the appeal.
The agency included the final order with its appeal, and none of these
documents were filed with the Commission until April 17, 2000.
The agency has offered inadequate justification for an extension of the
applicable time limit for filing its appeal. Accordingly, because the
agency filed an untimely appeal, we find that on April 10, 2000, the
Administrative Judge's decision became the final action of the agency.
29 C.F.R. �� 1614.109(i). Therefore, the agency's appeal is dismissed.
In his timely appeal from the agency's final order, the complainant
argues that he is entitled to more than the $5,000 in nonpecuniary
compensatory damages awarded by the AJ. The award is supported by the
record and is affirmed.
On appeal, the complainant, through counsel, does not contest the amount
of attorney fees and costs awarded by the AJ, and argues that he is
entitled to additional attorney fees for costs for representational
work done on appeal. He does not submit a claim for a specified amount
of attorney fees and costs at this time. As the complainant is the
prevailing party, he is entitled to attorney fees and costs under for
representational activity incurred after January 10, 2000, when his last
claim for fees and costs was submitted to the AJ. He is entitled to these
fees and costs in accordance with 29 C.F.R. � 1614.501(e). Instructions
on how to file for them can be found in Order H0900, printed below.
The Commission directs the agency to provide relief consistent with the
Administrative Judge's decision, as restated in the Order below.
ORDER
The agency is ordered to take the following remedial action:
1. Within 30 calendar days of this decision becoming final, the agency
shall make an unconditional offer to place the complainant in the
position he would have occupied, or if justified by the circumstances,
a substantially equivalent position.<4>
2. The agency shall determine the appropriate amount of back pay
with interest and other benefits due complainant, pursuant to 29
C.F.R. � 1614.501, retroactive to on or about May 6, 1997, no later
than 60 calendar days after the date this decision becomes final.
The 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 the complainant for the undisputed amount within 60 calendar
days of the date the agency determines the amount it believes to be due.
The 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. Within 30 calendar days after this decision becomes final, the
agency shall pay the complainant $23,565 in attorney fees and costs.
(This covers fees and costs through January 10, 2000).
4. Within 30 calendar days after this decision becomes final, the agency
shall pay the complainant $5,000 in compensatory damages.
5. The agency shall ensure that neither the complainant nor any other
employee will be subjected
to discrimination and/or retaliation at its Defense Contract Management
Agency facility in East Hartford, Connecticut.
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 complainant,
including evidence that the corrective action has been implemented.
The agency shall copy the report and its supporting documentation to
the complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Defense Contract Management Agency,
East Hartford, Connecticut 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.
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.
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).
COMPLAINANT'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
October 8, 2002
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ________________ which found
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Defense Contract Management Command Agency, at its East Hartford,
Connecticut facility, supports and will comply with such Federal law and
will not take action against individuals because they have exercised their
rights under law. The EEOC found that an individual was discriminated
against in violation of Title VII when the individual was not promoted.
The East Hartford, Connecticut facility will offer to promote the
affected individual, pay the individual back pay and other benefits,
compensatory damages, and attorney fees and costs.
The East Hartford, Connecticut facility will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1Effective March 27, 2000, the command which was subject to the complaint
became a separate agency, i.e., the Defense Contract Management Agency
(DCMA). However, DCMA notified the EEOC that the Defense Logistics
Agency would continue to process the claim.
2The AJ found that the complainant was informed on or about May 6, 1997.
Page 4, AJ decision.
3The agency defined the complaint as whether the complainant was
discriminated against when the job opportunity announcement (JOA) for
this position was cancelled. The AJ found the JOA was cancelled to
discriminatorily eliminate the complainant from consideration, and that
the agency failed to show by clear and convincing evidence that he would
not have been selected absent discrimination.
4This position was the one advertised in JOA #219-97, i.e., Quality
Assurance Specialist, GS-1910-12, with the Defense Contract Management
Command (now agency), Defense Contract Management District East, Technical
Assessment Group, in East Hartford, Connecticut. Consistent with the
AJ's decision, the position should be offered retroactive to on or about
May 6, 1997, when the complainant learned of the cancellation.