04A30036_04A30037
09-04-2003
Michael E. Cvijanovich, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Michael E. Cvijanovich v. Department of Veterans Affairs
04A30036, 04A30037
September 4, 2003
.
Michael E. Cvijanovich,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Petition Nos. 04A30036, 04A30037
Appeal Nos. 01A13904, 01A23550
Agency No. 200K-1265, 200K-1791
DECISION ON A PETITION FOR ENFORCEMENT
On July 9, 2003, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Michael E. Cvijanovich v. Department of Veterans
Affairs, EEOC Appeal No. 01A13904 (January 9, 2003). This petition
for enforcement is accepted by the Commission pursuant to 29 C.F.R. �
1614.503. Petitioner alleged that the agency failed to fully comply
with the Commission's order which he contends, implicitly included a
subsequent promotion to the GS-12; when the agency failed to provide him
with promised training set forth in its vacancy announcement; and when
the agency posted notice to employees only on a basement bulletin board.
Petitioner filed a complaint in which he alleged that the agency
discriminated against him on the bases of age (53 at the relevant time)
and in reprisal for prior EEO activity when it did not promote him to
the position of Veterans Claims Examiner GS-11<1> under two separate
vacancy announcements. Petitioner appealed the agency's final decision to
the Commission. In EEOC Appeal No. 01A13904 and 01A23550, the Commission
found that the agency discriminated against complainant by not promoting
him due to his age and when his supervisor harassed him in reprisal for
his EEO activity.
The Commission ordered the agency to promote complainant to the position
of Veterans Claims Examiner GS-11 retroactive to April 20, 2001 with
backpay and other benefits denied him as a result of the discriminatory
conduct. The Commission further ordered the agency to require the
selecting officials to take training in the requirements under the Age
Discrimination in Employment Act and to consider taking disciplinary
action against the selecting officials. The Commission ordered the
agency to post notice at its Fargo North Dakota Medical Center and
Regional Office and in conspicuous places including all places where
notices to employees are customarily posted. The matter was assigned
to a Compliance Officer and docketed as Compliance No. 06A30387 and
06A30388 on May 22, 2003.
On June 16, 2003, petitioner submitted the petition for enforcement
at issue. Petitioner contends that the position of Veterans Claims
Examiner GS-11 was advertised as a GS-11/12 and that the GS-11 was
established at less than the full performance level for recruitment
and training purposes. He argues that this meant that after one year
of satisfactory performance, he should have been promoted to a GS-12.
Complainant argued that other employees who were selected under these
vacancy announcements were promoted after completion of one year of
successful performance, but that he has not been so promoted. He requests
the Commission to order the agency to include as his "make whole" relief,
promotion to the GS-12 with back pay to April 20, 2002.
The agency responds that it provided all the relief the Commission
specifically ordered and that promotion to the GS-12 level will only be
made "in accordance with current regulations and demonstration of the
ability to perform duties at the next higher grade level."
Complainant further contends that he has been denied training as set forth
by the vacancy announcement for the positions in question. Specifically,
he contends that selection for the position mandated training for a six-
week period which he claims he has not been provided. The agency did
not specifically respond to complainant's contention regarding denial
of training.<2>
Finally, complainant argues that the agency failed to comply with
the Commission's order to post notice of the Commission's finding of
discrimination to employees at the location where the discriminatory
conduct took place. He claims that the notice was not posted in
conspicuous places but was placed only on a basement bulletin board.
Complainant contends that the agency failed to post a notice in the
Regional Office where the discriminatory conduct took place.
The agency responded that the Commission's notice was posted in two
official posting locations, one near the Canteen Service and one in
the office of the Human Resources Management Service. According to
the agency, these two locations are official areas for posting job
announcements, and other official items.
ANALYSIS AND FINDINGS
We address first complainant's contention that he was entitled to
receive a subsequent promotion that was routinely given to other
selectees for the position in question. It is established Commission
policy that any remedial relief include any subsequent promotion that a
complainant would likely have received if he had been selected for the
position at issue. Allen v. Department of Defense (Defense Logistics
Agency) EEOC Request No. 05900807 (September 11, 1990); Alexander
v. Department of Housing and Urban Development, EEOC Request No. 05940482
(September 21, 1995); Rai v. Department of Interior, EEOC Request No.
05880596 (August 12, 1988). A complainant may establish that he is
entitled to a higher level position over and above the one for which
he was not selected due to discrimination by showing, (1) he has the
particular skills or qualifications for the higher-level position;
(2) the higher-level position was in a line of progression upward from
the position for which he was discriminatorily not selected; and (3)
prerequisite service in the lower-level position is not itself justified
by business necessity aside from the skills or other qualifications
needed to perform in the higher-level position. Allen supra, citing
Locke v. Kansas City Power and Light Co., 660 F.2d 359 (8th Cir. 1981).
When there has been a finding of discrimination, the agency must prove
by clear and convincing evidence that complainant would not have been
entitled to a subsequent promotion even absent unlawful discrimination.
Dougherty v. Barry, 869 F.2d 605, 614 (D.C. Cir. 1989); Day v. Matthews,
530 F.2d 1083, 1085 (D.C. Cir. 1976); 29 C.F.R. 1614.501(c)(1).
In this case, the agency's vacancy announcement advertised the position
of Veterans Claims Examiner, starting at the GS-7 through the GS-12 level.
The agency's position description contained in the record states that the
GS-11 position is developmental to a GS-12 and that the GS-11 position
"was established at less than full performance level for recruitment
and training...[u]pon successful completion of training, demonstrated
ability to perform duties at the higher level, the incumbent may be
promoted without further competition to the next higher level which
is the full performance level of Veterans Service Representative..."
The agency's Vacancy Announcement 99-40 stated that the position at a
GS-11 had promotion potential to a GS-12. This clearly indicates that
the agency expected incumbents to be trained for higher level performance
at the GS-12 level.
The agency does not contest complainant's contention that others selected
under this particular vacancy announcement were promoted within the year
after their selection. Therefore, we are persuaded that the complainant
has demonstrated that the position was in a line of progression upward
from the position for which he was discriminatorily not selected.
Because complainant also alleges that he was denied training which was
mandated for persons selected, he has not fully demonstrated that he
has the particular skills or qualifications necessary for the higher
level promotion. It is clear, however, from the agency's vacancy
announcement that this training was a necessary component of selection
and was mandatory for all selectees. Therefore, complainant is entitled
to receive the same training as the other selectees for this position.
This is not a windfall or an enlargement of relief already ordered.
The Commission does not believe that complainant is required to prove
each element of make whole relief at or before the time for the hearing or
decision stage, rather complainant's entitlement to make whole relief is
established upon finding of discrimination. Rai, supra. The Commission's
Order encompassed other benefits flowing from the relief awarded which
we find included the training described in the vacancy announcement for
the position at issue.
Once complainant completes this mandatory training and has demonstrated
satisfactory performance at the GS-11 level in the same manner as other
similarly situated employees, the agency should offer complainant the
same opportunity for promotion to the GS-12 level as the other selectees.
Moving on to complainant's claim that the Commission's notice was not
posted in compliance with our order, it is not clear from the record
whether the agency complied with our directive to post "at its Fargo,
North Dakota Medical Center and Regional Office facility copies of the
attached notice." That is, the agency represents that it posted notice
at two locations, one near the Canteen and one in the offices of Human
Resources Management but does not indicate whether either of these
is located in the agency's Regional Office as specified in our order.
Thus, the agency should ensure that at least one posting be placed in
the Regional Office if it has not already done so.
ORDER
The agency is ordered to:
1. Offer complainant training as set forth in its Vacancy Announcement
01-21 within 30 days of the date this Order becomes final;
2. The agency will promote complainant to the GS-12 level in a
manner similar to those selected under the same vacancy announcement
retroactive to April 20, 2002. Within 45 days of the date of receipt
of this order, the agency will adjust petitioner's back pay award to
reflect the retroactive promotion.
3. To the extent it has not already done so, the agency will post
notice in its Fargo North Dakota Regional Office in accordance with the
Order below.
POSTING ORDER (G0900)
The agency is ordered to post at its Fargo North Dakota Medical Center
Regional Office 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 petitioner. If the agency does not comply with the
Commission's order, the petitioner may petition the Commission for
enforcement of the order. 29 C.F.R. � 1614.503(a). The petitioner 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. �� 1614.407, 1614.408), and
29 C.F.R. � 1614.503(g). Alternatively, the petitioner 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)(Supp. V 1993). If the
petitioner files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.409).
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
September 4, 2003
__________________
Date
1The agency subsequently changed the title
of the position to Veterans Service Representative (Rating) on October
21, 2001.
2The compliance record indicates that complainant first raised the issue
in a March 3, 2003 letter to the Commission which was copied to the
agency. The agency responded to complainant's letter but did not address
the issue of training. Complainant subsequently raised the issue again in
a letter to the Commission dated August 4, 2003 also copied to the agency.
Both letters are part of the record in this petition for enforcement.