07A30077
09-30-2003
Rowland Harley, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Rowland Harley v. Department of Labor
07A30077
September 30, 2003
.
Rowland Harley,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 07A30077
Agency No. 9-04-128
Hearing No. 140A18058X
DECISION
Following its February 28, 2003 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of his race (African American). For the
following reasons, the Commission VACATES the agency's final order.
Complainant filed a formal EEO complaint with the agency on June 1, 1999,
alleging that the agency had discriminated against him on the bases of
race and sex when he was not selected for the position of Wage and Hour
Specialist GS-05 (the position), under Vacancy Announcement No. AT-98-130,
at the agency's Charlotte District Office facility.
Background
Complainant applied for the position on or about May 14, 1998,
from outside the agency. His name was added to the certificate of
eligibility and he was interviewed by the Acting District Director
(RO: African American, male). Complainant, the selectee (S: Caucasian,
female), and a third candidate were given a second interview by RO, who,
based on the strength of his application and interviews, see Hearing
Transcript (HT), p. 216, recommended complainant for the position to
the Regional Administrator (SO: Caucasian, male). Without interviewing
the candidates himself, SO overruled RO and selected S, a candidate who
already worked for the agency in the Tampa office. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an AJ. Following a hearing, the
AJ found that complainant established a prima facie case of sex and race
discrimination. The AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions by stating that S was selected
because she was better qualified. The AJ concluded that, regarding
discrimination based on race, but not sex, complainant established that
more likely than not, the reasons provided by the agency were a pretext
for discrimination.
In reaching this conclusion, the AJ found that complainant was, in fact,
better qualified than S. The AJ noted that SO had never before overruled
a recommendation by RO, and further noted that RO testified that he
believed the selection was racially motivated and that the office employed
six White employees and just two Black employees. The AJ therefore found
that the agency engaged in discrimination based on race, but not on sex.
The AJ awarded attorney's fees in the amount of $17,185.00, �professional
costs� in the amount of $2,387.73, costs and expenses in the amount of
$2,405.00, and pecuniary<1> damages in the amount of $5,000.00.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred by applying too lenient a standard
when he inferred pretext from finding that complainant's qualifications
were superior to S's. The agency argues that the AJ merely found that
complainant's qualifications were superior, not plainly superior, as
required by the prevailing case law. The agency further argues that
the AJ failed to understand the significance of complainant's lack of
agency experience when compared with S, and substituted his own business
judgment for that of agency decision-makers. The agency next argues that
the AJ ignored two additional legitimate reasons articulated by agency
officials for the selection, namely, that S was chosen because she was
personally known to management officials, and because such officials
wished to accommodate her request to relocate after the recent death of
her husband. The agency argues that it was error for the AJ to infer race
discrimination from RO's testimony about the racial composition of the
office staff. Finally, the agency argues that, even assuming S had been
�pre-selected,� it was error to infer race discrimination from this fact.
Complainant requests that we reverse the Final Order and affirm the
AJ's decision. Complainant cross-appeals only that portion of the AJ's
decision addressing attorney's fees, and requests attorney's fees and
costs in the amount of $59,866.73. In response, the agency opposes
increasing the AJ's attorney's fees award and argues that complainant's
brief in support of his appeal was untimely filed. In addition,
the agency argues that the number of hours requested by complainant's
attorney is unreasonable and that the AJ's decision correctly reduced
the amount from 318.2 hours to 98.2 hours.
Analysis and Findings
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We note initially that, in the absence of direct evidence of
discrimination, the allocation of burdens and order of presentation
of proof in a Title VII case alleging discrimination is a three-step
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973).
First, complainant must establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802. Next, the agency must articulate a legitimate, nondiscriminatory
reason(s) for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful,
then the complainant must prove, by a preponderance of the evidence,
that the legitimate reason proffered by the agency was a pretext for
discrimination. Id. at 256.
Following a review of the evidence, we find that complainant established
prima facie cases of race and sex discrimination because he was not
selected for the position while a person outside of his protected classes
was selected. We further find that the agency articulated a legitimate,
nondiscriminatory reason for its action. Specifically, agency officials
said that S's qualifications were superior to complainant's, she was
personally known to management officials, and these officials wished
to accommodate her request to relocate after the recent death of her
husband. The burden thus returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reasons were pretextual,
that is, were not the true reasons or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
Following a careful review of the evidence and the AJ's decision, we
discern no basis to disturb the AJ's finding of discrimination. We note
that in nonselection cases, pretext may be found where the complainant's
qualifications are plainly superior to the selectee's. Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). However, an employer has the
discretion to choose among equally qualified candidates. Canham v. Oberlin
College, 666 F.2d 1057, 1061 (6th Cir. 1981). The record shows that
RO, who was the only management official to interview the applicants,
rated complainant first and S second, and he testified that he stood
by this decision because he had given it considerable time and thought.
He indicated that he believed that complainant was the stronger candidate
based on his �managerial experience, results, work towards a baccalaureate
degree, twenty years of military experience obtaining the rank of Master
SGT (E-8), veteran status, work experience and [the] interviews.� AJ's
Decision, p. 2. On the other hand, S had experience primarily as a
secretary and technician with the agency, and she possessed less formal
education than complainant. See Report of Investigation (ROI), Tab F-7.
Furthermore, while the agency argues that S had knowledge of the laws
and regulations enforced by the Wage and Hour Division, complainant's
application shows that he too had knowledge of these laws and regulations.
See ROI, Tab F-6, pp. 37-8. In addition, it is undisputed that except
for in this particular case, RO's employee recommendations were routinely
accepted without question. Finally we note that RO testified at the
hearing that he felt SO exhibited racial bias in his selections and
that the racial make-up of the office confirmed this belief. Given the
above, we find that the AJ's finding that complainant established, by a
preponderance of the evidence, that the agency's articulated reason was
a pretext for discrimination based on race, is supported by substantial
evidence.
Attorney's Fees and Costs
We note initially that neither complainant nor the agency has disputed
the amount of non-pecuniary compensatory damages awarded by the AJ.
We therefore address only the matter of attorney's fees and costs.
The AJ determined that the attorney's fees should be $17,185.00, based
on 98.2 hours at $175.00 an hour. While we agree with the agency that
complainant's supporting brief was untimely, see 29 C.F.R. 1614.403(d),
we note that the supporting brief did not include any argument that was
not already included in complainant's timely cross-appeal. Regarding the
hourly rate, we find that in view of complainant's counsel's affidavit,
the AJ's decision to calculate the fees at the $175.00 an hour rate is
supported by substantial evidence.
On appeal, the agency argues that the entries claimed are �vague,
unsupported, and provide no insight into the actual tasks or issues
accomplished or addressed.� A review of the fee petition reveals several
entries that fall into this category. For example entries dated on July
8, 2000 and April 8 and 9, 2001, claim a total of twenty-two hours for
�preparation and research� without identifying the specific nature of
the research or preparation. Entries dated June 15, 17, and 24, 2000,
and April 6, 2001 claim a total of twenty-two hours for �review civil
rights file and make notes� without providing any additional information
identifying the nature of the work performed. Entries dated July 2 and
3, 2001, and October 26, 2001 claim a total of one-and-a half hours for
�telephone conference� without identifying the parties involved in the
conferences or the nature of the issues discussed. The agency further
argues that the AJ properly determined that the total number of hours
claimed was excessive, given that the matter was litigated in a one-day
administrative hearing and that there were no novel or complex legal
issues involved. Where the hours claimed are found to be unreasonable,
�it is unnecessary to perform a detailed analysis to determine precisely
the number of hours or types of work for which no compensation is
allowed; rather, it is appropriate to reduce the hours claimed by an
across-the-board reduction.� Finch v United States Postal Service, EEOC
Request No. 05880051 (July 15, 1988). We therefore find that the AJ's
decision to apply an across-the-board reduction of the hours claimed to
98.2 hours is supported by substantial evidence and we discern no basis
to disturb the AJ's award of $17,185.00 in attorney's fees.
Therefore, after a careful review of the record, including the parties
contentions on appeal, their respective responses, and arguments and
evidence not specifically addressed in this decision, we VACATE the FAD.
ORDER (D0900)
The agency is ordered to take the following remedial action:
Within sixty (60) days of the date on which this decision becomes final,
the agency shall tender complainant non-pecuniary compensatory damages
in the amount of $5,000.00, attorney's fees in the amount of $17,185.00,
�professional costs� in the amount of $2,387.73, and costs and expenses
in the amount of $2,405.00.
The agency shall offer to complainant placement in the position of
Wage and Hour Specialist GS-5, or a substantially equivalent position.
Complainant shall have fifteen (15) days from receipt of the offer to
decide whether to accept or decline the offer. Failure to accept the
offer within the 15-day period shall be considered a declination of the
offer, unless complainant can show that circumstances beyond his control
prevented a response within the time limit. If the offer is accepted,
appointment shall be retroactive to October 9, 1998, the date complainant
would have been hired absent the discrimination.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant to
29 C.F.R. � 1614.501, and taking into account any mitigating factors, no
later than sixty (60) calendar days after the date this decision becomes
final. The complainant 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 complainant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The complainant 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."
The agency shall comply with the Posting Order below.
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 evidence that payment of
non-pecuniary compensatory damages has been made.
POSTING ORDER (G0900)
The agency, if it has not already done so, is ordered to post at its
Charlotte District 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 (K0501)
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 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (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 30, 2003
__________________
Date
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 the Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. (Title VII), 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, DISABILITY or REPRISAL with respect to hiring,
firing, promotion, compensation, or other terms, conditions or privileges
of employment. The Department of Labor, Charlotte District Office,
confirms its commitment to comply with these statutory provisions.
The Department of Labor, Charlotte District 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 Labor, Charlotte District Office, has been found to
have discriminated against an applicant for employment when he was not
selected for the position. The Department of Labor, Charlotte District
Office, has been ordered to provide compensatory damages and attorney's
fees to the affected individual, and to offer him the denied position,
or a substantially similar position, retroactive to the date he would
have begun his employment with the agency, absent the discrimination.
The Department of Labor, Charlotte District Office, will ensure that
officials will abide by the requirements of all Federal equal employment
opportunity laws.
The Department of Labor, Charlotte District 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
1While it is somewhat unclear, it appears that the AJ intended the
$5,000.00 award to constitute non-pecuniary compensatory damages instead
of pecuniary damages since the record does not contain a claim for
pecuniary damages amounting to precisely $5,000.00.