05a30373
04-21-2005
Steve R. Matheny, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Steve R. Matheny v. Department of Justice
05A30373
04-21-05
.
Steve R. Matheny,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Request No. 05A30373
Appeal No. 07A00045
Agency Nos. A-96-1003,
A-97-1020,
A-98-1042
Hearing Nos. 140-96-8226X,
140-98-8146X,
140-A0-8158X
DECISION ON REQUEST FOR RECONSIDERATION
On January 13, 2003, Department of Justice (agency) initiated a request
to the Equal Employment Opportunity Commission (the Commission or EEOC)
to reconsider the decision in Steve R. Matheny v. Department of Justice,
EEOC Appeal No. 07A00045 (December 6, 2002). EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. � 1614.405(b). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following two criteria: (1) the appellate
decision involved a clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices or operations of the agency. Id. For the reasons set forth
herein, the agency's request to reconsider is denied.
BACKGROUND
In the previous decision, the Commission reversed the agency's rejection
of the Administrative Judge's decision in favor of the complainant,
following the agency's failure to provide investigative files for the
three complaints on which the complainant had requested a hearing.
We briefly repeat the facts of this case in order to illuminate the
discussion of the agency's and complainant's arguments.
Complainant, a Paralegal Specialist, GS-11, employed at the agency's
United States Attorney's Office for the Eastern District of North Carolina
facility, filed a formal EEO complaint with the agency on September 30,
1995, in which he claimed that Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Equal Pay Act
of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq. had been violated.
In that complaint (Complaint 1), complainant alleged that the agency had
discriminated against him on the bases of race (Caucasian), sex (male),
and reprisal for prior EEO activity when: (1) on June 2, 1995, management
terminated his Special Assistant United States Attorney (SAUSA) position
and refused to convert him to the position of Assistant United States
Attorney (AUSA); (2) management compensated him for work performed as a
SAUSA at the GS-11/1 and GS-11/2 grade levels, while compensating a female
SAUSA performing the same work at the GS-11/8 and GS-11/9 grade levels,
and later converting her to an AUSA position; (3) management compensated
him for work performed as a SAUSA at a lower grade and salary than that
of female Paralegals in the USAO performing the same work; (4) management
discounted his efforts to change his job description and grade level
from GS-11 to either GS-12 or GS-13 because he contacted the Executive
Office for the United States Attorneys Office (EOUSA) Equal Employment
Opportunity Staff (EEOS) concerning his discrimination and EPA claims;
(5) management terminated his SAUSA position because he brought his EPA
claims to the attention of the EOUSA Evaluation and Review Staff (EARS);
(6) management of the USAO paid him, a male, a lower salary than they
paid two female AUSAs for the performance of equal work; and (7) the
USAO hired two African-American females as AUSAs and refused to hire
him for either of these two positions.
The agency dismissed allegation 7 for untimely EEO Counselor contact.
The Commission affirmed that dismissal. Matheny v. Department of Justice,
EEOC Appeal No. 01966578 (September 24, 1997), request for reconsideration
denied, Matheny v. Department of Justice, EEOC Request No. 05980092
(November 8, 1999).
On March 21, 1997, complainant filed a second EEO complaint (Complaint 2)
alleging that the agency discriminated against him based on reprisal for
filing his first complaint when: (1) his evaluation for the period April
1, 1995, through March 31, 1996, was downgraded; (2) management continued
to fail to promote him, as reflected by its failure to award him either a
grade increase, a Quality Step Increase, or a monetary performance award,
despite the fact that all other Paralegal Specialists within the Eastern
District of North Carolina appeared to have received one of these awards
for the same period; and (3) he was suspended without pay on November
12, 1996.
On July 6, 1998, complainant filed a third complaint (Complaint 3)
alleging that the agency discriminated against him: (1) based on race
and color when he was continually passed over for AUSA positions; and
(2) based on reprisal for filing his previous complaints when management
denied him training opportunities which were available to other members
of the office, including (a) denial of administrative leave to attend
a continuing legal education (CLE) course in February 1998, (b) denial
of a request to attend multi-district ethics training in late 1997, and
(c) denial of Office of Legal Education (OLE) training opportunities
since filing his first complaint.
Complainant requested a hearing on Complaints 1 and 2, which were assigned
to an EEOC Administrative Judge (AJ). Complainant subsequently informed
the AJ (AJ-1) that he was engaged in EEO counseling for a third complaint,
and requested that the proceedings be stayed so that his complaints could
be consolidated. In the interim, complainant's case was reassigned
to a different AJ (AJ-2). On August 31, 1998, AJ-2 issued an order
remanding the first two complaints for consolidation with the third,
and directing the agency to refer the entire matter for a hearing when
the processing of Complaint 3 was completed.
By letter dated March 11, 1999, complainant requested a hearing on all
three complaints. Complainant noted that more than 180 days had elapsed
since Complaint 3 had been filed and since AJ-2 had remanded Complaints
1 and 2 for consolidation with Complaint 3. By letter dated April 21,
1999 to the Assistant Director, EOUSA/EEOS (the Assistant Director), AJ-2
inquired whether that office was aware of complainant's hearing request,
the status of complainant's case or request, or any other information
which would be helpful in addressing complainant's concern. AJ-2 did
not receive a response from the agency. By letter dated June 26, 1999,
complainant again requested a hearing. Thereafter, on July 6, 1999,
AJ-2 issued an order directing the agency to refer the consolidated
complaints for hearing within 15 days. AJ-2 again did not receive a
response from the agency.
On October 12, 1999, AJ-2 issued an Order to Show Cause why sanctions
should not be imposed for the agency's failure to comply with AJ-2's July
6, 1999 order. AJ-2 noted the possibility that she would issue a decision
fully in favor of complainant. On an unspecified date in November 1999,
the Assistant Director telephoned AJ-2 and stated that he had been ill and
therefore unable to respond to the Show Cause order in a timely manner.
The Assistant Director also stated that he would return the investigative
files for the first two complaints to AJ-2 and would forward the file for
the third complaint, which was almost complete, when it was completed.
AJ-2 directed the Assistant Director to reply to the Show Cause order
in writing, with an explanation of his delay in responding.
On November 12, 1999, AJ-2 received a package from the agency containing
the correspondence files for the first two complaints, but not the
investigative files. The files were accompanied by a cover letter dated
June 11, 1999 from the Assistant Director in which he states that he is
responding to AJ-2's April 21, 1999 inquiry. This letter notes that
the agency is forwarding the investigative reports for the first two
complaints, and will forward the third when it is completed. AJ-2 did
not receive this letter prior to its inclusion in the November 12,
1999 package, and it was never received by complainant. By letter dated
December 23, 1999, and postmarked December 30, 1999, the agency responded
to AJ-2's Show Cause order. The agency, by the Assistant Director,
stated that it did not receive AJ-2's July 6, 1999 order and therefore
was unable to respond. The Assistant Director further stated that he did
respond to AJ-2's April 21, 1999 letter by way of the agency's June 11,
1999 letter. The Assistant Director stated that the investigation of
the third complaint had been completed, and that the investigative file
would be forwarded to AJ-2 as soon as it was received by his office,
along with the investigative files for the first two complaints.
As of March 27, 2000, the agency still had not provided the requested
files to AJ-2. On that date, AJ-2 issued a decision in which she found
that the agency had, without good cause shown, failed
to respond fully and in a timely fashion to her orders and her
requests for the investigative files. In particular, AJ-2 found that
the agency did not mail its June 11, 1999 letter until November 1999,
and in the interim ignored her July 6, 1999 order. AJ-2 rejected the
agency's contention that it had not received the order, noting that it
was served on the Assistant Director and an agency representative at
their letterhead addresses, and that complainant had received the copy
which was served on him. AJ-2 noted that even if the agency had not
received the July 6, 1999 order, it had received the Show Cause order,
which summarized the preceding order and included the instruction to
refer complainant's complaints for hearing. AJ-2 noted that while the
deadline for response to the Show Cause order was November 1, 1999, the
agency did not respond until December 30, 1999. She further noted that
although the Assistant Director stated that he was late in responding
because of illness, there was no mention of illness nor any other reason
stated in his written response; moreover, his written response was not
submitted until more than one month after his telephonic response, with
no explanation provided for that delay either. In addition, the agency
failed to serve its response on complainant.
On the basis of the foregoing, AJ-2 concluded her decision by finding in
favor of complainant as to all allegations of his three complaints, noting
instances where even the incomplete record before her contained evidence
of the agency's retaliatory animus toward complainant. The AJ also
noted that the limited record before her contained evidence supporting
complainant's claims of pay disparity. AJ-2 then awarded relief as
follows: conversion of complainant's position to Assistant United States
Attorney, retroactive to June 2, 1995; recision of the suspension; back
pay; and upgrade of his performance appraisal for the period April 1,
1995, through March 31, 1996, to �substantially exceeds expectations.�
AJ-2 noted that complainant apparently represented himself throughout
the proceedings, and therefore would not be entitled to attorney's fees,
but afforded complainant the opportunity to submit evidence of fees
paid to other attorneys and/or costs, as well as compensatory damages.
AJ-2 also ordered the agency to provide complainant with training on
an equal basis with all other AUSAs, and directed the agency to post a
notice of the finding of discrimination.
On April 11, 2000, the agency filed a Motion for Reconsideration
with AJ-2. The agency requested that AJ-2 impose a lesser alternative
sanction and allow the matter to proceed to hearing. The agency stated
that its �clear negligence� in this matter was occasioned by changes
in EOUSA's personnel and by unexpected illness. The agency stated
that the Assistant Director had left the agency February 11, 2000,
and had been in transition for a period of time prior to that date.
The agency further stated that the Assistant Director had been ill for a
substantial period subsequent to the October 12, 1999 Show Cause order.
The agency argued, inter alia, that it acted neither willfully nor in
bad faith. Complainant replied to the agency's motion noting, in part,
that the Commission's regulations do not require a finding of willfulness
or bad faith.
On June 27, 2000, AJ-2 issued a decision denying the agency's motion,<1>
and denying complainant's requests for attorney's fees and compensatory
damages, but awarding certain costs. AJ-2 denied the request for
attorney's fees noting that complainant had not submitted the evidence
required to substantiate his claim. AJ-2 awarded complainant costs
totaling $102.21. AJ-2 denied the request for compensatory damages,
noting that complainant's evidence on damages addressed only the agency's
conduct and not any injury suffered by him as a consequence, and therefore
appeared to be a claim for punitive damages.
The agency appealed AJ-2's decision to the Commission. In its appeal,
the agency argued that AJ-2 abused her discretion by issuing a finding
of discrimination as a sanction; that the relief awarded by AJ-2 was
not appropriate, in that the agency had presented clear and convincing
evidence that complainant would not have been selected as an AUSA; but
that AJ-2's decision was correct with regard to the denial of attorney's
fees and compensatory damages, and the assessment of costs. The agency
contended, in part, that AJ-2 should have informed the agency that its
response to the Show Cause order was deficient before issuing her March
27, 2000 decision, and that the agency did not show �flagrant disregard�
for her orders. Complainant subsequently cross-appealed solely on the
matter of attorney's fees and costs.
The previous decision, issued December 6, 2002, affirmed that AJ-2
properly imposed the sanction of a finding in favor of complainant as
to all claims of the three complaints for which the agency failed to
provide investigative reports. Regarding remedy, the Commission found
no basis to disturb either the denial of attorney's fees or the award
of costs limited to $102.21. It also found that the agency did not
establish by clear and convincing evidence that complainant would not
have been converted to an AUSA position absent unlawful discrimination.
On request for reconsideration, the agency puts forth four distinct
arguments in support of its contention that the Commission's decision
involves a clearly erroneous interpretation of law, and that it will
have a substantial impact on the policies, practices and operations of
the agency. First, it argues that the imposition of sanctions which enter
a default judgment for a complainant violate the principle of sovereign
immunity. Second, the agency claims that the sanctions violate the
Federal Rules of Civil Procedure, Rule 55(e), in that a default judgment
was awarded against the United States without proof that the complainant
is entitled to the relief. Next, the agency argues that the relief as
ordered by the AJ and the previous decision exceeded that which would
make the complainant whole. Finally, the agency claims that the previous
decision violated the employment policies of the U.S. Attorney's Office,
in that it bypassed the requirements that complainant be subjected to
a background check/investigation, a period of temporary appointment,
and that he be a member of a state Bar in good standing, among other
qualifications.
In response, complainant contends first that the agency filed its request
for reconsideration in an untimely fashion, and that it did not adhere
to the extended deadline for the filing of its brief in support of
its request. He also contests the agency's submission of a Motion to
Amend its request for reconsideration, submitted with the Amended Brief
a full 20 twenty days past the extended deadline, to which he was not, by
regulation, able to respond. Substantively, complainant argues that the
Commission was empowered through Title VII's waiver of sovereign immunity
to award the relief ordered by the AJ in his case as a sanction against an
agency for noncompliance with the administrative process, and that Supreme
Court precedent and the Commission's regulations permit the imposition
of sanctions. Complainant also advocated that the remedy awarded did not
exceed �make-whole� relief, and that the agency's employment practices
had not been adversely impacted in that he had already met the employment
requirements for an AUSA. Finally, complainant asserted that the agency
had not complied with the Commission's regulation on interim relief,
arguing that he should have been placed in the position in question while
the initial appeal and this request for reconsideration were pending.
ANALYSIS AND FINDINGS<2>
Sovereign immunity is the principle which holds that no party can bring
a suit against the government without its consent. "'Absent a waiver,
sovereign immunity shields the Federal Government and its agencies
from suit.'" Department of the Army v. Blue Fox, Inc., 525 U.S. 255,
260 (1999) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)). "[A]
waiver of sovereign immunity is to be strictly construed, in terms of
its scope, in favor of the sovereign." Ibid. (citing Lane v. Pena, 518
U.S. 187, 192 (1996) and Library of Congress v. Shaw, 478 U.S. 310, 318
(1986)). "Such a waiver must also be 'unequivocally expressed' in the
statutory text." Ibid. (citing Lane, 518 U.S. at 192). The Court will
"constru[e] ambiguities in favor of immunity," United States v. Williams,
514 U.S. 527, 531 (1995). And, "limitations and conditions upon which the
Government consents to be sued must be strictly observed and exceptions
thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 161
(1981).
Employees and applicants for federal employment are required to
participate in an administrative process administered by the Commission
when making a claim of unlawful employment discrimination against their
employer (or, in the case of an applicant, their potential employer),
the U.S. government.<3> Section 717 of Title VII of the Civil Rights
Act of 1964 prohibits employment discrimination by federal agencies.
42 U.S.C. � 2000e-16(a). That section provides for a waiver of the
principle of sovereign immunity and allows for federal sector complainants
to pursue their claims in federal District Court once they have exhausted
their remedies in the administrative process. 42 U.S.C. � 2000e-16(c).
Federal agencies �shall comply with such rules, regulations, orders, and
instructions� which are issued by the Commission and which the Commission
�deems necessary and appropriate to carry out its responsibilities�
to enforce the prohibitions on unlawful discrimination in employment.
42 U.S.C. � 2000e-16(b). That provision of Title VII also delegates
to the Commission the authority to enforce the statute prohibiting
discrimination �through appropriate remedies . . . as will effectuate
the policies of this section.�
Pursuant to that statutory authority, the Commission promulgated
regulations, first in 29 C.F.R. Part 1613 and then in 29 C.F.R. Part 1614,
�necessary and appropriate to carry out its responsibilities� to enforce
the non-discrimination provisions applicable to the federal sector.
Furthermore, the Commission's authority to promulgate such regulations
is reinforced through several Executive Orders, including Exec. Order
No. 11,375, 32 Fed. Reg. 14,303 (1967); Exec. Order No. 11,478, 34
Fed. Reg. 12,985 (1969); and Exec. Order No. 12,067, 43 Fed. Reg. 28,967
(1978) . Exec. Order No. 11,375 gave the Civil Service Commission
authority to �provide for the prompt, fair, and impartial consideration
of all complaints of discrimination in Federal employment . . ..� See
Exec. Order No 11,375, � 104, amending � 104 of Exec. Order No. 11,246.
That authority was transferred to the Commission by Exec. Order
No. 12,067, which implemented the Reorganization Plan Number 1 of
1978. Further, section 1-303 of Exec. Order No. 12,067 confirms that,
�[t]he Equal Employment Opportunity Commission shall issue such rules,
regulations, policies, procedures or orders as it deems necessary to
carry out its responsibilities under this order.� See also Exec. Order
No. 11,478, � 5 (authorizing the Civil Service Commission to issue
regulations necessary to carry out the order of non-discrimination in
federal sector employment).
As required by Exec. Order No. 12,067, � 1-303, the Commission consulted
with �the affected Federal departments and agencies during the development
of any proposed rules, regulations ?,� including the Department of
Justice. The regulations were then approved by the Executive Office
of the President. Neither in 1991, when 29 C.F.R. Part 1614 was
first proposed, nor in 1999, when it was revised, did the Department
of Justice object to the provisions granting administrative judges the
authority to impose sanctions on noncomplying parties, when appropriate.
At this point, it would appear that the agency must abide by � 1-303 of
Exec. Order No. 12,067, which mandates that, �departments and agencies
shall comply with all final rules, regulations, policies, procedures
or orders of the Equal Employment Opportunity Commission.� See also
Exec. Order No. 11,478, � 5 (stating that the �head of each executive
department and agency shall comply with the regulations, orders, and
instructions issued by the [Civil Service] Commission under this Order�).
The Commission's administrative process is designed to provide a forum
for federal complainants to pursue their claims, and was structured
to provide the necessary framework to allow the Commission to enforce
the discrimination statutes. Within the administrative process, the
administrative judges have been granted powers designed to aid them in
developing the administrative record for decision, including overseeing
discovery, ordering a supplemental investigation and holding a hearing.
The parties are required to abide by the orders and requests of the
administrative judges to provide the investigative files, documents,
records, comparative data, statistics, affidavits, and the attendance of
witnesses, i.e., items that would aid the AJ in developing the record
for decision. Noncompliance, without good cause shown, can result in
a sanction as outlined in 29 C.F.R. � 1614.109(f)(3), in which an AJ
�shall, in appropriate circumstances:
(i) draw an adverse inference that the requested information, or the
testimony of the requested witness, would have reflected unfavorably
on the party refusing to provide the requested information;
(ii) consider the matters to which the requested information or testimony
pertains to be established in favor of the opposing party;
(iii) exclude other evidence offered by the party failing to produce
the requested information or witness;
(iv) issue a decision fully or partially in favor of the opposing
party; or
(v) take such other actions as appropriate.�
It is the Commission's position that it has the authority to issue
sanctions in the administrative hearing process because it has been
granted, through statute, the power to issue such rules and regulations
that it deems necessary to enforce the prohibition on employment
discrimination. The Commission has determined that delegating to its AJs
the authority to issue sanctions against agencies, and complainants, is
necessary and is an appropriate remedy which will effectuate the policies
of the Commission. If no repercussions for noncompliance existed,
the Commission would be unable to enforce its mandate of eliminating
employment discrimination in the federal workplace. The federal
agencies are mandated to submit to the rules, regulations, orders,
and instructions as promulgated by the Commission, but in instances
of non-cooperation by agencies, the Commission has determined that,
given its inability to issue subpoenas to other federal agencies, the
use of sanctions is a necessary component of the regulatory scheme in
order to ensure that compliance. In its January 6, 2003 memorandum,
the Department of Justice itself recognized that the Commission must
have authority to enforce its orders: �And arguably, EEOC may have some
inherent power to impose some type of sanctions designed to maintain
the integrity of its proceedings even against federal agencies. One
could infer this from the fact that Congress is presumed to have made
its statutory scheme effective.� Re: The Equal Employment Opportunity
Commission's Authority To Impose Attorney's Fees Against Federal Agencies
for Failure To Comply with Orders Issued by EEOC Administrative Judges
(Department of Justice memorandum) (January 6, 2003) at 8.
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court found that
the Commission was empowered through Title VII and the Civil Rights
Act of 1991, 42 U.S.C. � 1981a, to award compensatory damages to
complainants in the administrative process. The Court determined that
the term �appropriate remedies� found in section 717 is not limited
to remedies specifically set forth in Title VII. The administrative
process was put in place to require a complaining party to pursue relief
for discrimination administratively, prior to filing a civil action.
The Commission is charged with eradicating employment discrimination
within the federal government, and carries out that charge through the
29 C.F.R. Part 1614 process. The Court wrote that �to deny that an EEOC
compensatory damages award is, statutorily speaking, �appropriate' would
undermine this remedial scheme,� a scheme which �encourag[es] quicker,
less formal and less expensive resolution of disputes within the Federal
Government and outside of court.� West, 527 U.S. at 219. To deny
the Commission the power to ensure compliance with its administrative
process through the use of sanctions is to encourage the non-cooperation
of agencies with the administrative process. This would have the effect
of forcing complainants into court, which would, as the Court wrote,
�increase the burdens of both time and expense that accompany efforts
to resolve hundreds, if not thousands, of such disputes each year.� Id.
The agency argues that the terms of the consent to a waiver of sovereign
immunity must be specific and will limit the available remedies in any
suit against the government. In this case, the agency claims that the
United States did not waive sovereign immunity for the relief ordered,
the hiring of an employee with back pay, for the sole purpose of remedying
the agency's failure to comply with the AJ's requests and orders.<4>
Instead, it argues that relief can only be ordered against the United
States as a remedy for enforcing the prohibition on discrimination,
i.e., it asserts, only after a finding has been made on the merits of
complainant's case, and discrimination has been found to have existed.
In support of this argument the agency cites the memorandum opinion of
its own Office of Legal Counsel, issued in response to a request from
a third agency, in which it opines that the Commission does not have
the power to issue monetary sanctions against another agency within the
administrative hearing process. Department of Justice memorandum.
We note however, that the sanction issued by the AJ was a finding
of discrimination in favor of complainant, not a monetary sanction.
The Commission's regulations provide for the imposition of a finding
in favor of either party as a sanction. It is a well-settled matter
of EEO law that prevailing parties are entitled to equitable remedies
such as back pay and placement in the position, i.e. make whole relief.
The equitable remedies that flow from that finding, the financial
consequences such as the hiring of an employee and the awarding of back
pay, were not the actual sanction. The AJ could have easily awarded
injunctive relief to complainant pursuant to her finding that complainant
should be the prevailing party.
The agency also argued that Fed. R. Civ. P. 55(e) precludes the Commission
from issuing a decision in favor of complainant because it prohibits
default judgments against the federal government without an evidentiary
basis in a factual record that complainant is entitled to relief.
We disagree that the Commission is not able to enter a judgment for
the complainant in a context such as this. As the Commission looks to
the Federal Rules of Civil Procedure for guidance, even as we are not
strictly bound by them, we find that a judgment such as that entered
by the AJ in the instant case would not be precluded under the Rules.
Fed. R. Civ. P. 55(e) states that �no judgment of default shall be
entered . . . unless the claimant establishes a claim or right to relief
by evidence satisfactory to the court.� (Emphasis added). See Giampaoli
v. Califano, 628 F.2d 1190 (9th Cir. 1980) (if a claimant presents a prima
facie case, R. 55(e) does not apply); Alameda v. Secretary of Health,
Education and Welfare, 622 F.2d 1044 (1st Cir. 1980) (limitation of
default judgment against the government does not prohibit an entry of
default and does not relieve government from duty to defend cases or obey
court orders). We note that the AJ in the instant case specifically
found that the limited evidence before her showed that complainant's
claims of reprisal were supported, as well as his allegations concerning
pay disparity, thereby rendering a decision in complainant's favor an
appropriate action.
We address the agency's third and forth arguments in conjunction because
the agency's arguments and our response to such are intertwined.
The agency further argued that the relief as ordered by the AJ and the
Commission exceed �make-whole� relief. The AJ ordered that complainant be
appointed to an AUSA position, retroactive to June 2, 1995. The agency
argued that complainant has received a �windfall� in that he is not
then subject to the eligibility and suitability requirements or the
trial period to which all AUSAs are subject. The agency also argued
that the relief ordered is inconsistent with its policies and practices
regarding the employment of AUSAs. It went into great detail in its brief
in describing the eligibility and suitability requirements for an AUSA -
the standards a successful AUSA applicant must meet before a decision is
made to hire him or her, standards relating to successful completion of
a wide-ranging and stringent background check, a temporary appointment
followed by a trial period of one to two years, and Bar membership in
good standing. The agency argued that AUSAs are subject to the highest
levels of scrutiny to ensure the quality of the employee's legal skills
and moral good standing.
We do not find that the placement of complainant in an AUSA position would
violate the policies, practices or operations of the agency. We find
that this argument is hollow with respect to complainant, who has been
an employee of the agency since 1991, who states he is already subjected
to a full background check on a regular basis, and is a member in good
standing of the Bar of the state of North Carolina, and who the agency for
a period of approximately two years sent into District Court to represent
the agency in his position as a SAUSA. It is disingenuous for the agency
to argue now that the complainant is not up to their standards for hiring.
If, however, the other attorneys who were converted from SAUSAs to AUSAs
when the SAUSA program was discontinued were subject to a new background
check, a new temporary period and a probationary period, as the agency is
arguing complainant should be subjected to, then complainant would also
be subject to these requirements. If, instead, they were credited with
time served and not treated as a new hire, complainant should not as well.
The remedy ordered is designed to put complainant in the position he would
have occupied had the discrimination not occurred. Upon implementation
of our order, the agency may subject complainant to those requirements
only on a showing that the employees converted from SAUSAs to AUSAs in
1995 were also freshly subject to the hiring requirements of an AUSA.
Finally, we note that complainant argued in his brief that the agency
Legal Counsel informed the current U.S. Attorney for the Eastern
District of North Carolina that he could not promote complainant to an
AUSA position while his complaint is pending. Complainant argued that
this raises a claim of retaliation for his EEO activity. Complainant
is advised that if he wishes to pursue, through the EEO process, this
additional claim of reprisal he raised on appeal, he shall initiate
contact with an EEO Counselor within fifteen days after he receives
this decision. The Commission advises the agency that if complainant
seeks EEO counseling regarding the new claim within the above fifteen-day
period, the date complainant filed the appeal statement in which he raised
this claim with the agency shall be deemed to be the date of the initial
EEO contact, unless he previously contacted a counselor regarding these
matters, in which case the earlier date would serve as the EEO Counselor
contact date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC
Request No. 05970201 (January 16, 1998).
Complainant also argued that the agency violated the provisions
on interim relief, as found in 29 C.F.R. �� 1614.502 and 1614.505,
when it did not place him in the position of an AUSA while the RTR
was pending. The agency did not respond to this issue. We find that
those provisions in the regulations are applicable only in the case of
a removal, separation or suspension continuing beyond the date of the
request for reconsideration, and when the initial appeal decision, or AJ
decision, orders retroactive restoration. 29 C.F.R. � 1614.505(a)(1).
The instant case does not involve those adverse actions.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
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 agency's request. The decision
of the Commission in EEOC Appeal No. 07A00045 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
ORDER (as modified)<5>
Within sixty (60) calendar days of the date this decision becomes final,
the agency is ordered to take the following remedial action:
1. The agency shall appoint complainant to an Assistant United States
Attorney position, retroactive to June 2, 1995, together with back pay
and benefits, subject to requirements of a newly hired AUSA only on a
showing that the employees converted from SAUSA's to AUSA's in 1995 were
also freshly subject to the hiring requirements of an AUSA;
2. The agency shall remove the one-day suspension from complainant's
personnel file and any other official records where it may appear, and
restore complainant's pay for that day, with interest, pursuant to 29
C.F.R � 1614.501;
3. The agency shall tender to complainant costs in the amount of $102.21;
4. The agency shall revise complainant's performance evaluation for
the period April 1, 1995, through March 31, 1996, to reflect an overall
performance rating of �substantially succeeds expectations.� In addition,
the agency shall tender to complainant any awards that such a rating
would have warranted;
5. The agency shall ensure that complainant is provided with training on
an equal basis with all other AUSAs, and that neither his race, color,
sex, nor prior EEO activity is a factor in determining whether he is
entitled to training; and
6. The agency shall post a notice of the finding of discrimination,
as set forth below in the paragraph entitled, �Posting Order.�
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, 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 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 back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant 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.
POSTING ORDER (G0900)
The agency is ordered to post at the United States Attorneys Office for
the Eastern District of North 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.
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.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
____04-21-05______________
Date
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 seq.,has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that 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 Justice, United States Attorneys Office for the
Eastern District of North Carolina, 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 Justice, United States Attorneys Office for the Eastern
District of North Carolina, has been found to have discriminated against
the individual affected by the Commission's finding. The Department of
Justice, United States Attorneys Office for the Eastern District of
North Carolina, shall place the affected individual into the position
denied him on account of discrimination and tender back pay and benefits;
expunge a suspension previously imposed on the affected individual;
upgrade the affected individual's performance appraisal; and provide
training to the affected individual. The Department of Justice, United
States Attorneys Office for the Eastern District of North Carolina,
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 and will not retaliate
against employees who file EEO complaints.
The Department of Justice, United States Attorneys Office for the Eastern
District of North Carolina, 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
1The AJ noted that, on an unspecified date prior to issuance of her
June 27, 2000, decision, the agency finally had provided the requested
investigative files.
2 We find insufficient reasons for dismissing this RTR on the basis of
the agency's failure to comply with filing deadlines.
3 The Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., however, does provide for an opt-out provision,
whereby a complainant is able to proceed directly to District Court,
instead of first proceeding through the administrative process, after
providing notice to the Commission. 29 U.S.C. � 633a(d) .
4 Although it also argues that the doctrine of sovereign immunity
precludes the Commission from issuing any sanctions against another
federal agency for failure to comply with the Commission's regulations
and orders, describing such sanctions as �punitive,� we note that the
agency states that �this issue need not be addressed� in this case.
5 Although the previous decision ordered the agency to consider taking
disciplinary action against the �employees identified as being responsible
for the discriminatory treatment perpetuated against complainant,� in
view of the default judgment we have modified the order to delete this
provision, as no findings have been made by the Commission as to who
those individuals would be.