0720080062
02-26-2009
Asonia N. Parker, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Asonia N. Parker,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0720080062
Hearing No. 430-2008-00054X
Agency No. 07-62793-01594
DECISION
Following its September 11, 2008 final order, the agency filed an
appeal with this Commission requesting that we affirm its rejection
of the discrimination finding of an EEOC Administrative Judge's (AJ),
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The agency also requests that
the Commission affirm its rejection of the relief ordered by the AJ.
Complainant, an Industrial Property Management Specialist, GS-1103-11, at
the agency's Supervisor of Shipbuilding (SUPSHIP), Conversion and Repair,
in Newport News, Virginia, filed a formal EEO complaint on June 13, 2007.
Therein, complainant claimed that she was discriminated against on the
basis of race (African-American) when:
on April 29, 2007, she was not selected for the position of Support
Services Supervisor, GS-0347-07 or 09, with known promotion potential
to a GS-0301-11, under Management Identification of Candidates.
Following the investigation, complainant was provided with a copy
of the report of investigation and requested a hearing before an
Administrative Judge (AJ). Following a hearing on July 16, 2008, the
AJ issued a decision on July 31, 2008, finding discrimination concerning
complainant's non-selection.
In her July 16, 2008 decision, the AJ concluded that the evidence
supported a determination that complainant was discriminated against based
on her race when she was not selected for the position of Support Services
Supervisor, GS-0347-07/09. The AJ found that complainant's qualifications
were observably superior to those of the selectee. Specifically, the AJ
noted that complainant had several years of experience at the GS-11 level
with the agency and would have been able to work independently, while the
selectee was only a GS-7 at the time of the selection. The AJ further
noted that while the subject position was originally a GS-11 position,
the agency's witnesses were unable to explain why it was announced as
a career ladder position.
The AJ found several irregularities in the selection process itself
which suggested discrimination. The AJ noted even though the panelists
of the interview panel all signed a document which stated that they had
reviewed the entire application package and affixed an appropriate score
based on the entire submission, they only scored the candidates based on
their interviews. The AJ found troubling that either the selectee or the
chair of the interview panel (C1) misrepresented selectee's experience
during the selectee's interview.
Further, the AJ noted several scoring irregularities by the panelists.
For instance, the AJ noted the scoring of complainant and selectee on
the first question (concerning applying one's leadership, supervisory
and EEO experiences) one panelist (P1) gave selectee a score of 9 based
on the misrepresentation that he had served in the position in an acting
capacity for two and a half months. The AJ noted P1 gave complainant
a score of 5 for the same question. The AJ noted although she did not
have any supervisory experience, complainant explained to the panel her
leadership in various committees on which she had served, including the
EEO committee and Toastmasters; her experience as union steward for five
years; and the fact that she owed two businesses. The AJ noted that in
her notes, P1 indicated that the selectee "supports EEO completely" and
that complainant "did not state EEO policies." During her testimony, P1
admitted that the selectee did not state EEO policies either. P1 claimed
that she thought she gave complainant and selectee the same scores on
the EEO element and that the selectee went ahead of complainant with
his leadership and supervisory experience. Furthermore, the AJ found it
was clear from her notes that P1 downgraded complainant for not stating
EEO policies while she did not do the same for the selectee, and even
if she did not, she did not give complainant appropriate credit for the
EEO element as she had served on EEO committees and the selectee had not.
The AJ also found the selecting official and C1's scoring of the
candidates suspicious. For instance, the AJ noted that the fourth
interview question "concerned an employee who calls in sick and the
frequent sick calls are impacting the ability to complete the work as
planned and are causing churn for the employee's co-workers and asked the
candidates what they would do." C1 initially gave the selectee a score
of 9, then downgraded it to 8, for his response wherein he indicated he
would talk with the employee, work out a solution and fix the problem.
The AJ found no indication that C1 indicated, during his examination at
the fact finding conference, that the selectee identified what solutions
would be implemented, or how he would fix the problem. The AJ found
that complainant received a score of 5 for responding that she would
monitor work assignments, partner with the employee to keep the work
going and consult a union handbook in regard to guidance concerning
leave restrictions.
Similarly, the AJ noted that question 5 concerned an employee situation
which arises on a weekend, C1 initially gave the selectee a score
of 10, downgraded to 8, for responding that he would call to see who
could or would come in, and that he would do it himself if necessary.
The AJ noted that complainant, on the other hand, received a score of
5 for saying that she would come in and handle it and call employees
at home for assistance. The AJ determined that there was little or no
distinction between the answers provided, except that complainant was
willing to take on the responsibility herself and then call employees
for assistance if needed while the selectee would call employees first
and come in to work only if it was required.
After a review of the testimony, the AJ awarded complainant $25,000.00
in non-pecuniary compensatory damages to compensate her for the
discrimination. Specifically, the AJ found that complainant suffered
emotional pain and suffering, humiliation, difficulty sleeping, weight
gain, and loss of enjoyment of life as a result of her non-selection.
As for the remaining remedies, the AJ ordered the agency to appoint
complainant to the Supervisory Administrative Services Specialist,
GS-0301-11 position, retroactive to April 29, 2007;1 pay attorney's fees
and costs in the amount of $12,331.55; and post a notice on all employee
bulletin boards stating that it was found in violation of Title VII.
The Commission discerns no basis to disturb the AJ's findings. We find
that the findings of fact are supported by substantial evidence, and
that the AJ correctly applied the appropriate regulations, policies
and laws.
Moreover, we further find that given the specific facts in this case,
the AJ's remedial award is appropriate. We note that that in regard
to attorney's fees and costs, the record reflects that complainant's
attorney submitted a fee petition dated July 22, 2008.2 Therein, the
attorney requested $12,331.55 in attorney's fees and costs (his hourly
rate of $350.00 plus $250.00/$100.00 per hour for legal assistant work
and $94.05 in legal costs). The record reflects that the agency did not
respond to complainant's verified statement of costs and attorney's fees.
Furthermore, we note that the agency, in its brief, did not object to
the AJ's awarding complainant's attorney $12,331.55 in attorney's fees
and costs. Thus, we concur that the agency shall pay the amount of
$12,331.55 in attorney's fees and costs.
We REVERSE the agency's final order, and REMAND this matter to the agency
to take remedial action in accordance with this decision and the ORDER
below.
ORDER
The agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall appoint complainant to the Supervisory
Administrative Services Specialist, GS-0301-11 position, retroactive to
April 29, 2007.
2. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall tender to complainant $25,000.00 in non-pecuniary
compensatory damages.
3. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall tender to complainant's attorney $12,331.55 in
attorney's fees and costs.
4. The agency shall post a notice in accordance with the paragraph 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 supporting documentation verifying
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 its SURSHIP in Newport News, Virginia,
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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
February 26, 2009
__________________
Date
1 In her decision, the AJ determined that complainant was not entitled
to any back pay as the position is a lateral move for her.
2 The record does not contain a copy of the fee petition dated July 22,
2008.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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