0520110179
04-21-2011
Leduc Obas, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
Leduc Obas,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Request No. 0520110179
Appeal No. 0120083050
Hearing No. 570-2006-00569X
Agency No. D-06-3826
DENIAL
The Agency timely requested that the Commission reconsider its decision
in Leduc Obas v. Dep’t of Justice, EEOC Appeal No. 0120083050 (Oct. 28,
2010) (Obas I). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
The matter in Obas I came before the Commission when Complainant
appealed the Agency’s final order adopting a decision issued by an EEOC
Administrative Judge (AJ) who had ruled, in a decision without a hearing,
that Complainant failed to establish that the Agency’s legitimate
nondiscriminatory reasons for not selecting him to one of two vacant
GS-14 Criminal Investigator positions were pretexts for discrimination.
On appeal, the Commission found that the AJ improperly issued a decision
without a hearing in favor of the Agency.
Specifically, the Commission found that the AJ’s decision was not
supported by a de novo review of the record because the Agency failed
to provide information indicating how Complainant’s qualifications
compared to those of the selectees. The Commission then found that the
Agency’s lack of specificity regarding these reasons made it impossible
for Complainant to prove the reasons for not selecting him were a pretext
for discrimination. Based on this, the Commission found that the Agency
had not articulated legitimate nondiscriminatory reasons for its actions,
and thus failed to rebut Complainant’s prima facie claim. Therefore,
Complainant was deemed the prevailing party in the underlying claim.
See Obas I, at 6.
In its request for reconsideration, the Agency asks that the Commission
vacates its decision in Obas I, and remand this matter for a hearing.
The Agency, citing the Federal Rules of Civil Procedure, contends that it
was improper for the Commission to enter summary judgment for Complainant
because, as he was the non-moving party, “a court…can grant judgment
for a non-movant only after giving notice and a reasonable time to
respond.” See Agency’s Brief in Support of Appeal (Brief), at 2.
The Agency further contends that entry of judgment in favor of Complainant
is inconsistent with our ruling in Petty v. Dep’t of Defense, EEOC
Appeal No. 01A24206 (Jul. 11, 2003) because in that case, which also
involved a non-selection, the Commission vacated the summary judgment
ruling and remanded the case for a full hearing upon concluding the
record was inadequate for decision and lacked evidence as to how each
candidate had been ranked and rated. Finally, the Agency contends that
the genuine disputes of material fact exist because the record does
not establish that Complainant was better qualified than the selectees.
Complainant merely requests that we deny the Agency’s request.
The Agency’s contention that the Commission went beyond its authority
by issuing a ruling in favor of Complainant is not legally sound. The
Commission looks to the Federal Rules of Civil Procedure for guidance but
is not strictly bound by them. See Matheny v. Dep’t of Justice, EEOC
Request No. 05A30373 (Apr. 21, 2005). Further, the Agency’s contention
that our decision in Obas I is inconsistent with our ruling in Petty
is a misapplication of EEOC case law. In Petty, it was the evidentiary
record that was found to be deficient in that pertinent documents were
not a part of the file; in Obas I, the selecting official’s proffered
reasons for choosing the selectees were not specific enough to afford
Complainant an opportunity to prove that those reasons were pretextual.
The Agency’s final contention, that is, the Commission should return
this case for a hearing because the record contains genuine disputes of
material fact as there is no evidence that Complainant was more qualified
than the selectees. That may be so, but the Commission never ruled in
Obas I that Complainant was more qualified than those selected; we only
found that reasons that the Agency offered for the non-selection lacked
specificity, and therefore did not qualify as legitimate nondiscriminatory
reasons and did not rebut Complainant’s prima facie case.
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. § 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 0120083050 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The Agency
shall comply with the Order as set forth below.
The Agency is ORDERED to take the following remedial action:
1. The Agency shall place Complainant in the position he would have
occupied absent the discrimination, or a substantially equivalent position
if the original position no longer exists. The employment offer shall be
made in writing within 30 days from the date this decision becomes final.
Complainant shall have 15 days from receipt of the offer within which
to accept or decline the offer. Failure to accept the offer within
the 15-day period will be considered a rejection of the offer, unless
Complainant can show that circumstances beyond his control prevented a
response within the time limit.
2. If the offer is accepted, appointment shall be retroactive
to the date Complainant would have been hired absent discrimination.
Back pay, computed in the manner prescribed by 5 C.F.R. § 550.805,
shall be awarded from the date Complainant would have entered on duty
until the date Complainant actually enters on duty. Interest on back pay
shall be included in the back pay computation. The Complainant shall
be deemed to have performed service for the Agency during this period
for all purposes except for meeting service requirements for completion
of a required probationary or trial period.
3. If the offer of employment is declined, the Agency shall award
Complainant a sum equal to the back pay he would have received, computed
in the manner prescribed by 5 C.F.R. § 550.805, from the date he would
have been appointed until the date the offer was rejected. The Agency
shall inform Complainant, in its offer of employment, of the right to
this award in the event the offer is declined.
4. Within fifteen (15) calendar days of the date this decision
becomes final, the Agency shall give Complainant a notice of his right
to submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)),
in support of his claim for compensatory damages within forty-five (45)
calendar days of the date Complainant receives the Agency’s notice.
The Agency shall complete the investigation on the claim for compensatory
damages within forty-five (45) calendar days of the date the Agency
receives Complainant’s claim for compensatory damages. Thereafter, the
Agency shall process the claim in accordance with 29 C.F.R. § 1614.110.
5. The Agency shall immediately take corrective action to ensure such
discriminatory actions by and from its supervisors, managers, and all
other staff involved in decisions affecting employment, will not recur,
including providing mandatory training on the rights of employees and
applicants for employment under Title VII, the obligations of management
and personnel staff to insure that those rights are protected, and the
possible relief (both disciplinary by the Agency and statutorily from the
Commission or the courts) available to such employees against management
or personnel staff who discriminate.
6. The Agency shall post the enclosed notice, pursuant to the
paragraph below entitled, “Posting Order.”
7. The Agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The Agency shall report its
decision to the EEOC compliance officer. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the Agency’s employ, the Agency shall
provide documentation of their departure date(s).
8. 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 verifying that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Headquarters facility and at its
San Juan Puerto Rico office 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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 21, 2011
Date
2
05-2011-0179
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
05-2011-0179