01976628
08-20-1999
Larry Brown, Sr., Appellant, v. 95-98SR Bill Richardson, Secretary, Department of Energy, Agency.
Larry Brown, Sr., )
Appellant, )
) Appeal No. 01976628
v. ) Agency Nos. 95-59SR
95-98SR
) Hearing Nos. 110958357X
Bill Richardson, ) 110958358X
Secretary, )
Department of Energy, )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaints of unlawful employment
discrimination on the basis of race (Black) and reprisal (prior EEO
activity), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. In his first complaint, appellant
alleges he was discriminated against when: (1) a White male co-worker
(CW) was non-competitively promoted to the SG-15 Division Director
position (Position) in the Office of Safeguards and Security (OSS),
thereby eliminating the opportunity for him to compete for the Position;
(2) he was not selected to act as the OSS Director (D) during D's absence
from the office despite his name being on a list of those to act in this
capacity on a rotating basis; (3) D undermined appellant's authority and
caused confusion by directly assigning tasks to his subordinates without
his knowledge or consent; (4) his Division was given an inordinate
amount of work and responsibility without sufficient personnel, as
compared to the other two Divisions in OSS; and (5) D was derogatory
and negative during his midyear performance review. In his second
complaint, appellant alleges that: (6) D assigned a difficult employee
to his division for the purpose of undermining his performance and the
performance of his division. The appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is REVERSED and REMANDED.
During the relevant times, appellant was employed at the agency's
Savannah Rivers Operations Office, OSS, Aiken, South Carolina. At the
time of his first complaint, filed on February 10, 1995, appellant
was a GS-14 Supervisory Physical Security Specialist in the Security
Management Division of the OSS. At the time of his second complaint,
filed on April 17, 1995, appellant was a GS-14 Deputy Director of the
Security Management Division in the OSS.
After the agency completed an investigation of both complaints, appellant
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) Administrative Judge (AJ). Following a hearing, the AJ issued
a Recommended Decision (RD) finding no discrimination.
In January 1992, while appellant was Deputy Director of the Security
Management Division, he was assigned the dual role of Acting Director and
Deputy Director of the Safeguards and Evaluation Division. He served in
that capacity until April 1993, when D informed him he was assigned to
the position of Director of the Security Management Division<1>. In June
1993, appellant executed a Settlement Agreement with the agency concerning
his EEO complaint against a former supervisor. In September 1993,
appellant was assigned to the position of Deputy Director of the Security
Management Division. Appellant was informed by personnel officials that
the Division Director positions were GS-15's, and that placement in these
positions was competitive. In December 1993 appellant was assigned the
responsibilities of the Director of the Security Management Division,
but not the position, along with his duties as Deputy Director. The two
Director positions remained vacant all together for a period of three
years, although the agency had the authority to fill it upon D's request
to do so. After appellant complained that a White male had been assigned
to the position of Acting Director of the Safeguards and Evaluation
Division, a third division in OSS, he was again assigned to the position
of Acting Director of the Security Management Division, effective April
1995, in addition to his role as Deputy Director of that Division.
While attending a management program at Harvard University, which was
part of his Settlement Agreement, CW was noncompetitively promoted to
the Position in November 1995. According to the record, this promotion
was improper and is the subject of an Inspector General investigation.
The record shows that although he originally denied knowledge of the
promotion, D was fully aware of it, possibly from its inception. Appellant
alleges that D clandestinely arranged for the noncompetitive promotion to
exclude him from competing for it, as required by personnel rules, because
appellant would have been selected based on his superior qualifications.
The record confirms that appellant's education and experience are
substantially superior to that of CW.
Appellant's additional allegations, as enumerated above, all occurred
during the time period discussed above.
The AJ concluded that appellant failed to establish a prima facie case of
race discrimination with respect to allegations 2 through 6 because he
did not provide sufficient evidence to support an inference of illegal
racial motivation. Instead, the AJ held that each of the alleged
actions was the reflection of D's hard-nosed management style, which
he consistently used with everyone. The AJ also found that appellant
and D had a personality and management style clash, which was also
a nondiscriminatory motivational factor. Moreover, with respect to
allegations 4 and 6, the AJ determined that the agency reorganization
was an additional non-discriminatory factor.
With respect to allegation 1, the AJ did find that appellant established
a prima facie case of race discrimination because the he showed
that a similarly situated employee, not in his protected class, was
promoted to the Position while he was not given an opportunity to do so.
However, the AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the personnel
office made a mistake when it upgraded the Position, resulting in
a noncompetitive promotion for CW. In his pretext analysis, the AJ
essentially found that this reason was true, but that D recognized the
error and nonetheless facilitated the personnel action because of a
personal desire to have CW promoted. The AJ held that racial animus
was not a component of this desire, and found no discrimination.
In analyzing appellant's reprisal claim, the AJ found that he established
a prima facie case with respect to all six allegations, given the close
temporal proximity between appellant's EEO activity and the allegations
at issue. However, the AJ again held that the reasons proffered by the
agency, which are identical to those articulated in the racial claim
analysis above, were not pretextual and that the evidence as a whole
does not demonstrate that D was motivated by reprisal against appellant
for his EEO activity and the Settlement Agreement he obtained.
The agency's FAD adopted the AJ's RD, finding no discrimination and
no reprisal. Appellant makes no new contentions on appeal<2>, and the
agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
evidence supports the AJ's and agency's conclusion that no racial
discrimination or reprisal occurred with respect to allegations 4
and 6 which appear to be a legitimate consequence of the agency's
reorganization. We also find that the evidence supports the AJ's
finding of no discrimination or reprisal with respect to allegation 3
because the record shows that D directly interfered with subordinate
staff in other Divisions in the same manner as he did with appellant's
staff. See McDonnell Douglas v. Green, 411 U.S. 792 (1973) and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976).
However, with respect to allegations 1, 2, and 5, we find that both racial
animus and reprisal were significant motivating factors in D's actions in
each of these incidents. While we agree with the AJ that these incidents
are a reflection of D's management style and personality conflict with
appellant, they are only partially so, with both affidavit and hearing
testimony showing that D in many instances treated the white managers,
principally CW, more favorably than appellant. We conclude that D's
actions suggest both discriminatory animus and reprisal sufficient to
make a finding of discrimination.
With respect to allegation 1, given that the AJ found that D's testimony
was not credible, and that he was intimately involved in the CW's
promotion process, taking advantage of the opportunity when appellant
would be out of the office for an extended period of time, and that the
matter subsequently was placed under an Investigator General inquiry, we
conclude that the agency's articulated reasons were at least partially
untrue and a pretext for discrimination and reprisal. Specifically,
we find that although the personnel office might have made a simple
error, due to inexperience in classifying and grading positions for a
reorganization, D recognized and took full advantage of the error to
promote CW. D made no attempt to have appellant's position re-graded
to a GS-15, nor did he ask that the remaining vacant Division Director
position be advertised for competitive promotion, given that appellant
would have been the obvious selectee. Further evidence of D's animus in
this respect was his previous failure to fill the two vacant Director
positions, allowing them to remain vacant for three years, knowing that
the selection had to be competitive, which would result in appellant's
appointment given his superior credentials and direct experience in this
and similar division director positions on an �acting� basis. Therefore,
we concur in the AJ's credibility determinations, but find that D's
reasons were a pretext for discrimination and reprisal. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
With respect to allegations 2 and 5, although the AJ found that D treated
everyone consistent with his management style, we nevertheless find that
racial animus and reprisal is demonstrated because D did not subject
the White managers to the same conduct. Specifically, we find that
the evidence shows that D passed over only appellant, the only Black,
and the only Black to file and �prevail� on an EEO complaint, on the
�acting director� rotation list. D also gave appellant a comparatively
more negative midyear performance evaluation, and yet was unable to
substantiate any of his criticisms of appellant's work.
It is appellant's contention that D, a Black male, perceived that his
career would be enhanced by assisting white male managers under his
supervision in their career advancement, and that it would also be to
his benefit not to further appellant's career, a Black manager who files
and �prevails� on EEO complaints.
Therefore, based on the totality of these circumstances, we differ with
the AJ and the agency, and conclude that the appellant has shown illegal
racial motivation and reprisal by a preponderance of the evidence. There
is no requirement that racial animus or reprisal be shown with direct
evidence. See McDonald, supra., and Hochstadt, supra. Accordingly,
the agency's decision finding no discrimination is REVERSED, and the
agency is directed to comply with the terms of the following ORDER.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision
becomes final, the agency is directed to place appellant in the GS-15
Division Director Position in question, or a substantially equivalent
position, retroactive for all purposes, including seniority, to the
effective date that CW was assigned to the Position. In addition,
appellant shall be provided any backpay and other benefits he would
have received had the discrimination not occurred. The agency is
also directed to adjust appellant's 1994/1995 midyear performance
evaluation commensurate to that received by his two Deputy Director
peers.
(B) The agency shall determine any appropriate amount of backpay,
interest 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. Appellant shall cooperate in the
agency's efforts to compute the amount of backpay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of backpay and/or
benefits, the agency shall issue a check to appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. 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 in the statement
entitled �Implementation of the Commission's Decision.�
(C) the agency shall conduct a supplemental investigation pertaining
to appellant's entitlement to compensatory damages incurred as a
result of the agency's discriminatory actions. See, West v. Gibson,
No. 98-238, 1999 WL 380643 (U.S. June 14, 1999). The agency shall
afford appellant sixty (60) days to submit additional evidence in
support of her claim for compensatory damages. Within thirty (30)
days of its receipt of appellant's evidence, the agency shall issue
a final decision determining appellant's entitlement to compensatory
damages, together with appropriate appeal rights.
(D) The agency shall post at its Savannah Rivers Operations Office,
Aiken, 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 in the paragraph
entitled �Implementation of the Commission's Decision,� within ten
(10) calendar days of the expiration of the posting period.
(E) The agency shall provide training in the obligations and duties
imposed by Title VII to all managerial officials responsible for
agency actions in this case.
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/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 (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.
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:
August 20, 1999
___________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Although D informed
appellant at a meeting before witnesses that he
was appointed to the Director position, and he
was generally perceived by staff as the Director,
as opposed to merely �acting� as the Director,
it does not appear that this assignment was
officially processed, and the Director position
was technically vacant during this period.
2This Commission did not receive a statement in support of this appeal
from appellant. However, it appears that appellant may have sent such
a statement directly to the agency, which submitted a rebuttal statement
to this Commission. However, because appellant is required to submit a
statement on appeal to the Commission within thirty days of filing the
formal appeal, and did not do so, we find that there is no statement
on appeal to consider herein.