01973699
01-28-2000
Barry D. Mallek, Complainant, v. David J. Barram, Administrator, General Services Administration, Agency.
Barry D. Mallek v. General Services Administration
01973699
January 28, 2000
Barry D. Mallek, )
Complainant, )
)
v. )
) Appeal No. 01973699
David J. Barram, ) Agency No. 96R9PBSBDM17
Administrator, )
General Services Administration, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in retaliation for prior equal employment opportunity (EEO) activity in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> Complainant alleges that he was discriminated
against when the agency failed for more than three years to hire him for
a position for which he had been provisionally selected. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is REVERSED.
ISSUE PRESENTED
The issue presented is whether the agency articulated a legitimate,
nondiscriminatory reason for its delay in hiring complainant.
BACKGROUND
The record reveals that during the relevant time period, complainant
was employed as a law enforcement officer with the agency's Federal
Protective Service in San Francisco and Atlanta. In February 1992,
complainant resigned from the agency to accept a position as a chief of
police with a municipality in Texas.
For reasons not appearing in the record, less than a month after
his resignation, complainant sought to be reinstated as an agency
employee in the position from which he had resigned. When he was denied
reinstatement, he applied for several law enforcement positions within the
agency in various geographic locations. The agency rejected complainant's
applications for all of these positions except one, a GS-6 Police Officer
position in San Francisco.<2> Complainant was "tentatively hired"
for that position, on November 29, 1992, as were three other applicants.
Before their hiring could be finalized, complainant and the other
successful applicants were required to undergo drug tests, physical
examinations and background investigations. These procedures were
completed for the other applicants within approximately six months
and two of them were hired on July 25, 1993. The background check for
complainant, however, was not completed and his hiring was deferred.
Meanwhile, in 1992 and 1993, in connection with the agency's rejection of
his other employment applications, complainant filed three separate formal
EEO complaints. The record does not reflect the bases of discrimination
alleged in those complaints. It is undisputed, however, that agency
hiring officials in San Francisco were aware of the filing of at least
one of these complaints.
After complainant submitted to the agency the information necessary
to complete his background check, he heard nothing from the agency
for approximately two years. In August 1995, complainant wrote to
the agency inquiring about the status of his application. The agency
responded in September 1995 stating that his application was pending
"in the Central Office."
In March 1996, more than three years after he had been "tentatively
hired," complainant, having heard nothing further concerning the status
of his application, concluded that he was the victim of discrimination.
He sought and received EEO counseling and, on June 14, 1996, filed the
instant complaint alleging that the agency had deliberately stalled
the hiring process for the San Francisco Police Officer position in
retaliation for his having filed previous EEO complaints.<3>
The agency accepted the complaint for investigation. At the conclusion
of the investigation, complainant was furnished with a copy of the
investigation report. He did not elect to exercise his right to a
hearing. Accordingly, the agency issued a final decision on the basis
of the investigative record.
The FAD found that complainant had established a prima facie case
of retaliation but concluded that complainant had failed to prove
discrimination because the agency had articulated a legitimate,
nondiscriminatory reason for its actions, i.e., that paperwork necessary
for the completion of the background check could not be located. The FAD
further concluded that complainant had failed to prove this explanation
to be a pretext designed to conceal intentional discrimination.
From the FAD, complainant brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973) and its progeny, Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993), the Commission finds that complainant has
proven, by a preponderance of the evidence, that the agency retaliated
against him by delaying his hiring for the San Francisco Police Officer
position.
The agency does not dispute that complainant established a prima facie
case of retaliation. Complainant having done so, the burden of production
shifted to the agency to articulate a legitimate, nondiscriminatory reason
for its actions. McDonnell Douglas, 411 U.S. at 802-04. The agency
may rebut the presumption of discrimination by clearly setting forth,
through the introduction of admissible evidence, its reasons for not
hiring complainant. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 254-255 (1981). The agency's explanation must be sufficiently
clear to raise a "genuine issue of fact" as to whether discrimination
occurred. Burdine, 450 U.S. at 254.
Moreover, it must "frame the factual issue with sufficient clarity so
that [complainant] will have a full and fair opportunity to demonstrate
pretext." 450 U.S. at 255-256; Parker v. United States Postal Service,
EEOC Request No. 05900110 (April 30, 1990) (citing Burdine, 450 U.S. at
256); see also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993),
citing U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
716 (1983) and Burdine, 450 U.S. at 256. While the agency's burden of
production is not onerous, it must nevertheless provide a specific, clear,
and individualized explanation for the treatment accorded the affected
employee. Lorenzo v. Department of Defense, EEOC Request No. 05950931
(November 6, 1997).
Here the agency has failed to meet this burden. The explanation for
its actions is neither specific, clear, nor individualized. The only
explanation the agency offers for its more-than-three-year delay in
completing the hiring process is that in September 1996 the agency
determined that the "paperwork" necessary to complete the background
check on complainant "could not be located." The agency offers no
explanation whatever as to why the hiring process had not been completed
years earlier. It provides no details as to what progress had been
made in completing the process, which agency officials were involved
in the process, or why complainant's paperwork disappeared. There is
simply nothing in the agency's explanation that rebuts complainant's
contention that he was the victim of retaliation. Was the inability
to locate complainant's paperwork caused by the intentional act of
an agency official bent on punishing complainant for having engaged
in protected EEO activity? The agency does not address the question,
despite its obligation under McDonnell Douglas to do so.
We find that the agency failed adequately to explain the lengthy delay
in complainant's hiring and that it thereby denied complainant a fair
opportunity to demonstrate pretext. This finding compels the conclusion
that complainant was discriminated against in retaliation for his prior
EEO activity.
COMPENSATORY DAMAGES
In his submissions, complainant seeks an award of compensatory damages.
However, in the course of the investigation the agency developed no
information concerning the nature and extent of damages complainant might
have suffered. On remand, the agency shall investigate the question of
compensatory damages in accordance with the order below.
CONCLUSION
Accordingly, after a thorough review of the entire record, the Commission
REVERSES the agency's finding of no discrimination and REMANDS this
matter for additional proceedings as set forth in the order below.<4>
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively hire complainant to the position of
GS-6 Police Officer in the San Francisco area or if a Police Officer
position is unavailable, then to a substantially equivalent position in
that area. The retroactive hiring shall be effective from July 23, 1993.
Complainant shall also be awarded back pay with interest, seniority and
other employee benefits from July 23, 1993, together with any incurred
and reasonable attorney's fees.
2. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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."
3. The agency shall conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages and shall afford
complainant an opportunity to establish a causal relationship between the
incident of discrimination and any pecuniary or non-pecuniary losses. See
West v. Gibson, 119 S. Ct. 1906 (1999); Cobey Turner v. Department of the
Interior, EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998). The
complainant shall cooperate in the agency's efforts to compute the amount
of compensatory damages, and shall provide all relevant information
requested by the agency. The agency shall issue a final decision on the
issue of compensatory damages. 64 Fed. Reg 37,644, 37,657-58 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.110 (1999).
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced 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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
The agency is further directed to post a notice in compliance with the
paragraph below entitled "Posting Order."
The agency is further directed to make payment to complainant in
compliance with the paragraph below entitled "Attorney's Fees."
POSTING ORDER (G1092)
The agency is ORDERED to post, at the San Francisco, California facility
described in vacancy announcement #92-328-F, 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 (3O) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (2O) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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 (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:
1/28/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
1/28/00
Date
__________________________
Equal Employment Assistant
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
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 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 the 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. This facility supports and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
This facility has been found to have violated Title VII by failing to
hire an individual for a position because he had earlier filed complaints
asserting his rights under the Federal equal employment opportunity laws.
The agency shall, therefore, remedy the discrimination by: placing
this individual in the position for which he was improperly not hired
and providing him with back pay, attorney's fees and other benefits he
would have earned had he not been discriminated against. The agency
will conduct a supplemental investigation to determine the amount of
compensatory damages the individual will receive.
This facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment are properly trained
and in the future, will abide by the requirements of all Federal equal
employment opportunity laws.
This facility 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. 29 C.F.R. Part 1614.
_____________________
Date Posted: ___________
Posting Expires: _______
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2This position was advertised under vacancy announcement #92-328-F.
The position location was listed as: Public Buildings Service, Federal
Protective Service Division, Operational Services Branch, San Francisco
District, Enforcement Unit, San Francisco, CA.
3Some months after complainant filed his formal complaint, the agency
informed him that "the paperwork on [his] background investigation could
not be located" and that he would be required to submit his background
information again and undergo a second drug test.
4In light of the conclusion we reach here, we need not address the motion
complainant has made on appeal entitled "REQUEST OR MOTION THAT REPORTS
OF INVESTIGATION AND OTHER EVIDENCE BE USED IN ADJUDICATING BOTH OF THE
ABOVE DOCKET NUMBERS."