02A30003
02-20-2003
Agency.
Jesse D. Brown v. Department of the Air Force
02A30003
February 20, 2003
.
Jesse D. Brown,
Grievant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 02A30003
Agency No. FMCS 99-07201
DECISION
Grievant timely initiated an appeal from the decision of an arbitrator
sustaining in part his grievance, which alleged unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the arbitrator's decision.
The record reveals that grievant, a Tool and Parts Attendant, WG-6904-5
(saved grade WG-10) at the agency's Hill Air Force Base, Utah facility,
filed a grievance alleging that the agency had discriminated against him
on the basis of disability (carpal tunnel syndrome) when he was eliminated
from consideration for the position of Aircraft Mechanic, WG-8852-12,
(the position) on the ground that he was �medically disqualified.� The
agency processed the grievance, which ultimately went to arbitration.
The salient facts of the case are as follows: Grievant, an agency
employee, had been reassigned from a WG-10 position to a WG-5 (saved
grade WG-10) position as an accommodation of his carpal tunnel syndrome.
He subsequently applied for the position, and was one of the10 applicants
whose names appeared on the initial certificate of consideration. When
the 10 applicants were contacted by a secretary in the Flight Test Area
(FTA), where the position was located, to see if they were interested in
the position, three of them declined further consideration. The Civilian
Personnel Office (CPO) therefore added another three names to the list.
When one of those three applicants also declined consideration, CPO added
another three names to the list, although it should only have added one
other name. The selectee was one of the last three employees added to
the certificate. If CPO had not erred by providing three names instead
of one, the selectee would not have been considered for the position.
Grievant stated that when he was contacted by the FTA secretary,
he expressed a desire to be considered for the position. However,
he was subsequently informed that he was not selected because he was
�medically disqualified.� The record reflects that testimony from a
CPO employee established that any employee placed on the certificate
of consideration, including grievant, was qualified for the position,
and should not have been excluded as �medically unqualified.�
In his September 29, 1999 decision, the arbitrator noted that the agency
acknowledged that it had erred in the selection process, and summarily
found that the agency had discriminated against grievant based on
disability. The arbitrator further found that, because it was not clear
that grievant would have been selected for the position absent the error,
the appropriate remedy would be to award grievant priority consideration
for the next opening for the position of Aircraft Mechanic, WG-12, or any
other WG-12 position for which grievant is qualified and elects to apply.
On appeal, grievant argues that he is entitled to be placed in the
position, because the agency has not shown that, had he not been
improperly dropped from consideration, he would not have been selected
for the position. The agency did not reply to the appeal.
The Commission assumes, without deciding, that grievant has established
coverage under the Rehabilitation Act and, because the agency has not
contested the finding of discrimination, that the arbitrator correctly
concluded that the agency's actions constituted unlawful discrimination
under the same statute. The question remaining is the remedy to which
grievant is entitled.
When discrimination is found, the agency must provide the complainant
with an equitable remedy that constitutes full, make-whole relief to
restore him or her to the position he or she would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co., 424
U.S. 747, 764 (1976); Adesanya v. U.S. Postal Service, 01933395 (July
21, 1994). To avoid providing a remedy, the agency must show by clear
and convincing evidence that even absent discrimination, the complainant
would not have received the benefit sought. 29 C.F.R. �1614.501(c)(2);
see Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976).
Here, the record reflects that the selecting official excluded grievant
from consideration because he believed that grievant was not medically
qualified for the position. The record further reflects that, because
of an unrelated error in the selection process, the selectee's name was
added to the certificate of consideration, and he ultimately was selected.
The burden is on the agency to establish that, even if grievant had not
been wrongfully excluded from consideration, he still would have been
non-selected in favor of the selectee. The agency has placed in the
record no information regarding the relative qualifications of grievant
and the selectee. It therefore has not shown by clear and convincing
evidence that even absent the unlawful discrimination, grievant still
would not have been selected for the position. Further, this is not a
situation where even if he had been properly considered, grievant would
have had to meet some further qualification, such as obtaining a security
clearance or passing a psychological evaluation, to obtain the position
in question. Accordingly, the appropriate remedy in this case is to
place complainant in the position at issue, with back pay and benefits.
ORDER (D0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days of the date on which this decision becomes final,
the agency shall offer grievant the position of Aircraft Mechanic,
WG-8852-12, or a substantially similar position at Hill Air Force Base,
retroactive to the date on which the selectee herein encumbered the
position.
Within thirty (30) days of the date on which this decision becomes
final, the agency shall consider taking disciplinary action against the
selecting official identified as being responsible for the discriminatory
action against grievant. The agency shall report its decision. 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 reason(s) for its decision not to impose discipline.
Within ninety (90) days of the date on which this decision becomes final,
the agency shall provide EEO training on management's responsibilities
under the Rehabilitation Act to the selecting official identified as
responsible for the discrimination against grievant.
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, 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.
POSTING ORDER (G0900)
The agency is ordered to post at its Hill Air Force Base 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.
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.
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
February 20, 2003
__________________
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
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 the Air Force 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 the Air Force has been found to have discriminated
against the individual affected by the Commission's finding. The
Department of the Air Force shall place the affected individual in the
position for which he was non-selected, with back pay and benefits,
and shall pay the affected individual's reasonable attorney fees.
The Department of the Air Force 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 the Air Force 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