01973255
06-24-1999
Henry A. Thomas, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs Agency.
Henry A. Thomas, )
Appellant, )
) Appeal No. 01973255
v. ) Agency No. 95-0773
) Hearing No. 110-95-8386X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (Black), sex
(male), reprisal (prior EEO activity), age (53), and physical disability
(pulmonary condition, hypertension and visual problems), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791, et seq. Appellant alleges he was
discriminated against when: (1) he was assigned more work than other
employees in the Human Resources Management Service (HRMS) for about
twelve (12) months in 1993-1994; and (2) he was not selected for the
position of GS-12 EEO Specialist, and the position remained open until
the vacancy notice was canceled in October, 1994. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED in PART and REVERSED in PART.
The record reveals that in October 1993, appellant, a GS-11 Human Resource
Management Specialist<1> at the agency's Dorn V.A. Hospital in Columbia,
South Carolina (facility), applied for an announced GS-12 EEO Specialist
position (P1) in the Director's office. While appellant's name appeared
alone on a promotion certificate for the position forwarded to the
Director, who was the Selecting Official (SO), the SO noted on the
certificate he wanted to consider additional applicants before making
the selection.<2> However, after the SO requested additional applicants,
the Chief of HRMS approached other employees about performing EEO manager
functions on a collateral duty basis. The SO later testified that due
to potential staffing reductions, he decided not to fill P1, but the
vacancy announcement for the position was not officially canceled until
November 1994.
However, in August and September 1994, agency Circulars 00-94-2 and
10-94-093 were issued, stating that agency EEO Officers were required
to appoint EEO Program Managers to be responsible for all aspects of
each facility's EEO complaint program, but the appointee could not be
a facility employee or from the agency region's HRMS. As a result,
a GS-4 Medical Clerk (�selectee�; a Black male with a 40% disability)
was erroneously assigned to the position of GS-4 EEO Program Manager as
a collateral duty, and subsequently, a GS-13 Health Systems Specialist
(White male; no disabilities) was later appointed as temporary EEO Manager
with supervisory responsibility for complaint processing. In November,
1994, the agency announced a vacancy for a newly created EEO Specialist
GS-5, Target GS-9 position (P2) at the facility, and the selectee was
placed in P2 on or about January 5, 1995. As a result, the function of
EEO Specialist, which is performed at other agency facilities by persons
graded no lower than a GS-9 and frequently at the GS 12/13 level, was
filled by a GS-5 at the instant facility.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on September
15, 1995, alleging that the agency had discriminated against him as
referenced above. At the conclusion of the investigation, appellant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a Recommended Decision (RD) finding appellant established a prima
facie case of discrimination on the bases of race and disability when
he was not selected for P1, and the position remained open until the
announcement was canceled in October, 1994.<3> The AJ further concluded
that appellant failed to establish a prima facie case of discrimination
on any bases regarding his non-selection for P2.
In response to appellant's prima facie case regarding the nonselection,
the AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that it did not fill P1 due to budgetary
constraints, and the vacancy remained open erroneously. However,
the AJ found that appellant met his burden in demonstrating that the
agency's articulated reason was more likely than not a pretext for
discrimination on the bases of race and disability, as the position,
contrary to agency policy, remained open for over a year.<4> The AJ
further found that SO's testimony regarding his reasons for canceling P1
were not credible and that his actions in failing to expand the candidate
pool after not choosing appellant was evidence of discriminatory animus
against appellant. Moreover, the AJ found that the fact that there were
no Black managers in the Director's office was further evidence that the
articulated reasons for not promoting appellant to P1 were pretextual
in nature.
The agency's FAD adopted the AJ's RD regarding the findings of no
discrimination on the issues of disparate workload and non-selection
for P2, but rejected the AJ's findings of discrimination. On appeal,
appellant contends that the FAD erred in reversing the AJ's findings of
discrimination and contends that the findings of discrimination based
on race and disability should be upheld. The agency, in response,
contends that its FAD is supported by the evidence.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that appellant
established a prima facie case of discrimination on the bases of race and
disability when he was not selected for P1, and the position remained
opened for over a year, contrary to agency policy. Cancellation of
a job vacancy is not a bar to establishing a prima facie case where
there is evidence of discrimination. See McDuffie v. Department of the
Navy, EEOC Request No. 05880134 (1988). We further agree with the AJ's
finding that the agency's articulated reasons for not selecting appellant
are not credible and are a pretext for unlawful discrimination based
on race and disability. The AJ found that the SO's testimony was not
credible regarding his reasons for not selecting appellant for P1, and
for creating P2 as a GS-5, Target 9, rather than at a higher grade level.
An AJ's credibility determinations are entitled to deference due to the
judge's first-hand knowledge through personal observation of the demeanor
and conduct of the witnesses at the hearing. Walker v. Social Security
Administration, EEOC Request No. 05980504 (April 8, 1999). The Commission
finds no compelling reason to disagree with the credibility determinations
of the AJ. Therefore, it is the position of the Commission to REVERSE
the agency's decision in part and find that appellant was discriminated
against based on race and disability when the agency did not select him
for P1 and subsequently canceled the position. In all other respects
the agency's FAD is HEREBY AFFIRMED.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall offer appellant the GS-12 EEO Specialist position at
the agency's Dorn V.A. Hospital. Appellant shall be granted a 30-day
period to accept or reject the position. Appellant shall also be
awarded back pay, seniority and other employee benefits from the date
the GS-5 EEO Specialist position was filled, approximately January 5,
1995, along with any incurred and reasonable attorney's fees.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable), if any, and other benefits due appellant,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The appellant 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 appellant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The appellant
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 below.
2. The agency shall conduct a supplemental investigation on the issue
of appellant's entitlement to compensatory damages and shall afford
appellant an opportunity to establish a causal relationship between
the discrimination and any pecuniary or non-pecuniary losses. See
Carle v. Department of the Navy, EEOC Appeal No 01922369 (January 5,
1993).<5> The appellant shall cooperate in the agency's efforts to
compute the amount of compensatory damages and shall provide all relevant
information requested by the agency. The agency shall issue a final
decision on the issue of compensatory damages. 29 C.F.R. � 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
3. The agency shall also provide training to relevant officials on
equal employment opportunity and disability law in the federal workplace.
4. The agency is further directed to submit a report of compliance, as
referenced below. The report shall include supporting documentation of
the agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Dorn V.A. Hospital, in Columbia,
South Carolina, 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 below within ten
(10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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)(Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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 that a
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq. has occurred at the agency's Dorn V.A. Hospital
in Columbia, South Carolina (hereinafter �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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The 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 facility was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the basis of
race and physical disability. The facility shall therefore remedy
the discrimination by retroactively offering the position originally
sought to the individual, providing the monetary award due him,
providing back pay from the effective date of the promotion, and
providing proven compensatory damages and other benefits. The facility
shall also provide training to relevant officials on equal employment
opportunity and disability law in the federal workplace. The facility
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws.
The 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
1 Appellant's duties included tracking EEO complaints, preparing agency
affirmative action plans, and preparing an annual EEO update.
2 The agency does not dispute that appellant was qualified for P1.
3 The AJ found that appellant established a prima facie case of
discrimination on the basis of race as he is a member of a protected group
who was qualified for P1 and the position remained open after he was not
selected. The AJ found the prima facie case of disability discrimination
as appellant is a qualified individual with a disability and the SO was
more likely than not aware of appellant's disabling condition when he
applied for P1, as he requested reasonable accommodation costing several
thousand dollars.
4 In finding the agency's articulated reasons to be pretextual, the AJ
noted that the newly created facility EEO Specialist position was filled
at the GS-5 level while other agency EEO Manager/Specialist positions
were classified at the GS-9 through GS-12/13 level.
5 In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992); request for reconsideration denied, EEOC Request
No. 05930306 (February 1, 1993), the Commission held that Congress
afforded it the authority to award such damages in the administrative
process. See also Cobey Turner v. Department of the Interior, EEOC
Appeal Nos. 01956390 and 01960518 (April 27, 1998).