01970428
03-12-1999
Mitchell T. Crouther, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Mitchell T. Crouther v. Department of Agriculture
01970428
March 12, 1999
Mitchell T. Crouther, )
Appellant, )
) Appeal No. 01970428
v. ) Agency No. 9-21215
) Hearing No. 100-94-8025X
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission challenging the
final agency decision (FAD) of the Department of Agriculture (agency)
concerning his complaint of discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The appeal is accepted in accordance with EEOC Order No. 960.001.
The issues presented are whether the agency discriminated against
appellant on the basis of his race (Black) when he was not selected for
any of the following three vacancy announcements after applying for each
position: 91-30, Supervisory Insurance Management Specialist, GS-14;
92-14, Program manager, GS-14; and 92-43, Field Underwriting Branch
Chief, GS-13.
Appellant filed a formal complaint which was accepted and processed by
the agency. Thereafter, appellant requested an EEOC administrative
hearing with an administrative judge (AJ). A hearing was held on
August 16, 1995. Subsequently, the AJ issued a recommended decision
(RD) from the bench finding that appellant was discriminated against
with respect to Vacancy Announcement 92-43, for the Field Underwriting
Branch Chief, GS-13 position. However, the AJ found that appellant was
not discriminated against with regards to the other two vacancy positions
announced as Vacancy Announcements 91-30 and 92-14.
On September 20, 1996, the agency issued a final agency decision (FAD),
concurring with the AJ's recommended bench decision except for the
remedy of attorney's fees. The agency noted that there was no record
that appellant was represented by an attorney therefore it found this
portion of the AJ's recommended relief "moot."
On appeal, appellant essentially argues, that the AJ improperly determined
that the agency did not subject him to discrimination when he was not
selected or referred for the position of Program Manager, announced by
Vacancy Announcement 92-14. The crux of his argument is that the record
evidence shows that agency officials had preselected the selectee for
this position. Therefore, the selection was discriminatory.
After a careful review of the record, the Commission is not persuaded by
appellant's criticisms of the AJ's RD. The Commission concludes that,
in all material respects, the AJ accurately set forth the facts giving
rise to the complaint and the law applicable to the case. As we discern
no legal basis to disturb the AJ's recommended decision, the Commission
adopts the AJ's recommended decision as our own. Regarding appellant's
preselection argument, the Commission has found that preselection
does not violate Title VII when it is based on the qualifications of
the preselected party and not on some basis prohibited by Title VII.
Riddle v. Department of the Air Force, EEOC Request No. 05931012 (July 7,
1994); Marvin v. Veteran's Affairs, EEOC Appeal No. 01891677 (July 12,
1989); see also Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th
Cir. 1986). We agree with the AJ's finding that the agency rebutted any
inference of discrimination appellant may have established by articulating
a legitimate, nondiscriminatory explanation for selecting the selectee.
The agency explained that it had no control over the Office of Personnel
Management's (OPM) decision to include the selectee's name on the
certified list of eligible candidates. The selectee was referred as an
eligible candidate after he made a successful appeal to OPM following
the rejection of his application for untimeliness. Unlike the selectee,
we note that there is no evidence that appellant filed an appeal with
OPM when his application was rejected for untimeliness and he was never
referred as a candidate. Therefore, we agree with the AJ's holding that
appellant failed to show, by a preponderance of the evidence, that the
agency's actions were pretextual. In accordance with these findings, it
is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final agency decision. The agency shall comply with the order below.
ORDER
The agency is ORDERED to take the following remedial actions:
1. Within sixty (60) days of receipt of this decision, the agency shall
offer appellant a retroactive appointment to the position of Field
Underwriting Branch Chief, GS-13 or a substantially similar position.
Appellant shall have 15 days from receipt of the offer to accept or
decline the offer. Failure to accept the offer within 15 days will be
considered a declination of the offer, unless the individual can show
that circumstances beyond her control prevented a response within the
time limit.
The agency shall award appellant back pay, interest, and all other
benefits he would have received absent discrimination. The agency shall
provide back pay to appellant from the date the position was initially
filled until date of appointment. 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 other
benefits, the agency shall issue a check to appellant for the undisputed
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, as referenced
in the statement entitled, Implementation of the Commission's decision.
2. If the offer of appointment is declined, the agency shall award
appellant a sum equal to the back pay she would have received computed
in the manner prescribed by 5 C.F.R. �550.805, from the effective
date of removal until the date the offer of appointment was declined.
Interest on back pay shall be included in the back pay computation.
The agency shall inform appellant, in its offer of reinstatement, of
the right to this award in the event the offer is declined. Back pay
may not extend from a date earlier than two years prior to the date on
which the complaint was initially filed by appellant.
4. The agency shall post copies of the attached notice at the agency's
Jackson, Mississippi, Regional Services Office. 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.
5. 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 compensatory damages
due appellant, including evidence that the corrective action has been
implemented.
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 this
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 this
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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. If you file a request to reconsider and also file a
civil action, 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:
March 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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 al. has 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Department of Agriculture's Jackson, Mississippi, Regional
Services Office, supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The Department of Agriculture's Jackson, Mississippi, Regional
Services Office, has remedied the employee affected by the
Commission's finding by retroactively appointing him to the position
of Field Underwriting Branch Chief, GS-13 and by awarding back pay
and other benefits. Department of Agriculture's Jackson, Mississippi,
Regional Services Office, 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 Department of Agriculture's Jackson, Mississippi, Regional
Services Office, 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