0520110064
12-20-2010
Willie E. Harris, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, (Employment and Training Administration), Agency.
Willie E. Harris,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
(Employment and Training Administration),
Agency.
Request No. 0520110064
Appeal No. 0120102099
Agency No. CRC0911054
DENIAL
The agency timely requested reconsideration of the decision in Willie
E. Harris v. Department of Labor, EEOC Appeal No. 0120102099 (September
21, 2010). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates that: (1) the appellate decision
involved a clearly erroneous interpretation of material fact or law; or
(2) the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).
BACKGROUND
In the appellate decision, Complainant a GS-14 Grants Management
Specialist with the Employment and Training Administration in Washington,
D.C., alleged that the Agency discriminated against him on the bases
of race (African American), sex (male), color (black), age (60), and
reprisal for engaging in prior protected EEO activity when he applied for
but was not selected for the GS-1101-15 Supervisory Grants Management
Specialist position. The Agency issued a agency decision which found
that Complainant failed to show that he was discriminated against.
Complainant appealed the decision and the Commission found that the
Agency failed to sufficiently articulate a legitimate, nondiscriminatory
reason for selecting the Selectee instead of Complainant. Specifically,
the Commission found that the Agency's evidence used to support
its legitimate, nondiscriminatory reason was not sufficient to give
Complainant a full and fair opportunity to demonstrate that those
reasons were pretext. The Commission therefore found that Complainant
established a prima facie case of discrimination, and prevailed without
having to make any demonstration of pretext. The Commission ordered
the Agency to place Complainant in a GS-1101-15 Supervisory Grants
Management Specialist position retroactive to February 2006, back pay
with interest, and other benefits due. The Agency was also ordered to
conduct a supplemental investigation on compensatory damages.
REQUEST FOR RECONSIDERATION
In the Agency's request for reconsideration, the Agency asserts that its
request is limited to the remedy ordered by the Commission. The Agency
contends that the date set for Complainant's retroactive placement,
February 2006, is not supported by the record and may simply be a
typographical error. The Agency explains that the vacancy announcement
was not posted until November 17, 2008. The Selectee was informed of
his selection on December 8, 2008, and Complainant was informed of his
nonselection on December 17, 2008. The Selectee began serving in the
position at issue on February 5, 2009. The Agency maintains that because
February 2006, predates all dates relevant to the position at issue,
an erroneous interpretation of material fact has been made. The Agency
requests that the retroactive placement date be set as February 2009.
In response, Complainant contends that the appellate decision did not
involve a clearly erroneous interpretation of material fact or law
and will not have a substantial impact on the policies, practices
or operations of the Agency. Further, Complainant contends that
the Agency is not currently in compliance with the Commission's
final decision. Finally, Complainant maintains that a request for
reconsideration is not a de novo review, and therefore the decision
should stand.
ANALYSIS AND FINDINGS
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission
to deny the request. The Commission finds that the Agency failed to
demonstrate that the appellate decision involved a clearly erroneous
interpretation of material fact or law; or that the appellate decision
will have a substantial impact on the policies, practices, or operations
of the agency. Notwithstanding, the Commission finds that the Agency is
correct in pointing out that the February 2006, date listed in the order
is a typographical error. The evidence shows that all events that are in
question in this case started in 2008; therefore, we find that a 2006 date
is not applicable to this case. Accordingly, the Commission will correct
the typographical error in the order, however; the decision in EEOC Appeal
No. 0120102099 remains the Commission's decision. There is no further
right of administrative appeal on the decision of the Commission on this
request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency, within 90 calendar days of this decision becoming final,
shall take the following remedial actions:
1. Place Complainant in a GS-1101-15 Supervisory Grants Management
Specialist position, retroactive to February 5, 2009;
2. Determine the appropriate amount of back pay, with interest,
and other benefits due Complainant, pursuant to 29 C.F.R, � 1614.501.
The back pay shall include salary increases based on satisfactory work
performance. 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;"
3. The issue of compensatory damages is REMANDED to the Agency. On
remand, the Agency shall conduct a supplemental investigation on
compensatory damages, including providing the complainant an opportunity
to submit evidence of pecuniary and non-pecuniary damages. For guidance on
what evidence is necessary to prove pecuniary and non-pecuniary damages,
the parties are directed to EEOC Enforcement Guidance: Compensatory and
Punitive Damages Available Under � 102 of the Civil Rights Act of 1991
(July 14, 1992) (available at eeoc.gov.) The Agency shall complete the
investigation, and issue a final decision appealable the EEOC determining
the appropriate amount of damages within 150 calendar days after this
decision becomes final.
4. Provide four hours of training to the facility's management
officials, with special emphasis on the ADEA and Title VII, and the
requirement to participate in the EEO process.
5. The Agency shall consider taking appropriate disciplinary action
against the responsible Agency officials still employed by the Agency. If
the Agency decides to take disciplinary action, it shall identify the
action taken. If the Agency decides not to take disciplinary action,
it shall set forth the reasons(s) for its decision not to impose
discipline. If any of the responsible Agency officials have left the
Agency's employment, the Agency shall furnish documentation of their
departure date(s). The Commission does not consider training to be a
disciplinary action.
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 documentation indicating that the
corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at the Employment and Training
Administration in Washington, D.C., 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__12/20/10________________
Date
2
0520110064
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110064