05990084
09-12-2002
Clayton J. Jones, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Clayton J. Jones v. Department of the Navy
05990084
September 12, 2002
.
Clayton J. Jones,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05990084
Appeal No. 01963360
Agency No. 94-63285-008
DECISION ON REQUEST FOR RECONSIDERATION
On October 22 and 23, 1998, respectively, Clayton J. Jones (complainant)
and the Department of the Navy (agency) timely initiated requests to the
Equal Employment Opportunity Commission (the Commission) to reconsider
the decision in Clayton J. Jones v. Department of the Navy, EEOC Appeal
No. 01963360 (September 22, 1998). 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: the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or the decision will have a substantial impact on the policies,
practices or operations of the agency. Id.
ISSUES PRESENTED
Whether, as a remedy, the previous decision properly ordered the agency to
place the complainant on the next list of nominees for GS-14 positions and
post a notice at the Parris Island, South Carolina facility regarding the
discrimination finding as opposed to additional locations; and whether
the previous decision properly denied compensatory damages.
BACKGROUND
The complainant was employed with the agency's Naval Criminal
Investigative Service (NCIS) as a Special Agent, GS-13. The previous
decision found that he was discriminated against based on his race
(black) when he was not nominated as a candidate for promotion to the
position of Special Agent, GS-14.
In early January 1994, NCIS announced world-wide that later in January
1994, a board at NCIS headquarters would be convened to place candidates
on a promotion nomination list (PNL) for the position of Special Agent,
GS-14. The PNL was subject to approval by the Director of the Naval
Criminal Investigative Service. Interested candidates had to indicate
that they wished to be considered. The complainant did so. Of some 115
candidates, the board nominated 16. The complainant was not nominated.
In making its discrimination finding, the previous decision found
that complainant established an inference of discrimination, and the
agency failed to rebut the inference by articulating a legitimate,
nondiscriminatory reason for its action. It reasoned that none of the
board members could specifically recall considering the complainant or
reasons they may or may not have voted to place him on the PNL.
Computerized agency printouts, run on November 15, 1994, on fourteen
of the PNL nominees show that four were promoted in April 1994,
one in June 1994, and one in July 1994. The record also contains
notifications of personnel actions for nine of the nominees, one of whom
was not in the printouts. Many notifications are partially illegible.
One indicates a seventh nominee was promoted on an indecipherable date.
The notifications for six promotions indicate that four occurred in
Washington, D.C., one in Hawaii, and one, which was partially illegible,
apparently in San Francisco. At least three occurred in the same office
that the nominee worked.
The appellate record contains written agency procedures for advancement
of individuals to GM-14 positions in a document entitled Employer's
Affirmative Employment Plan, Fiscal Year 1988�1992. It is likely
these procedures were used because the mechanics for creating a PNL for
GM-14 were strikingly similar or the same to those used here for GS-14
positions. The procedures state that selections for GM-14 vacancies were
made by the Deputy Director of NCIS, with the concurrence of the Director
of NCIS, only from the PNL list. (Investigative Report (IR) 229-30).
It states that the PNL prepared by the previous Board is dissolved when
a new board is created. (IR 230).
The previous decision ordered the agency, in part, to place the
complainant on the next nominee list for Special Agent, �GM� (sic)-14
positions, a reference to the PNL list. Both parties submitted
correspondence after filing their requests for reconsideration.
The Commission exercises its discretion to consider this correspondence
because it contains information relevant to determining make whole relief,
an issue which both parties asked be addressed on request.
The additional information shows that on February 24, 1995, a new board
placed the complainant on a PSL (also referred to as a PNL). The list
announcement encouraged all nominees to compete for announced GS-14
positions. Then effective July 23, 1996, the agency eliminated annual
PNL Boards. Henceforth, NCIS would announce GS-14 and GS-15 vacancies
as they arose, and Special Agents could request to be considered for
a particular vacancy. The notice announcing this change stated it
would allow individuals to more directly influence their career goals
and objectives. Finally, effective January 16, 2000, the complainant
was promoted to GS-14 within NCIS.
On request, the complainant argues in part that had he been placed on
the PNL, he would have been promoted, and hence is entitled to back pay.
The agency contests this. It noted that the complainant was placed on a
PSL in February 1995 and thereafter was eligible to be promoted, but was
not promoted until January 2000. The agency argued that since February
1995, there had been over 30 GS-14 vacancies, but through October 1998
the complainant had only applied for one. Writing that the complainant
had lived and worked in the same geographic location for more than eleven
years, it theorized that he passed up promotions because he did not wish
to relocate to a different geographic location.
In its request for reconsideration, the agency argues that the previous
decision's order to place the complainant on the next list of nominees
for the position of Special Agent cannot be implemented because such
lists ceased in July 1996. The agency later argued that no further
action was required by it because the complainant was promoted after
the previous decision was issued.
ANALYSIS AND FINDINGS
Back Pay
A job applicant has a right to be free from discrimination throughout the
selection process. If the process is discriminatory at any phase, the
applicant must be awarded full relief, i.e., the position retroactively,
unless the employer shows by clear and convincing evidence that even in
the absence of discrimination, the applicant would not have been selected.
Pryor v. United States Postal Service, EEOC Appeal No. 05980405 (February
5, 1998) (interviewer did not recommend or forward an applicant
for discriminatory reasons). Placing such an onerous burden on the
employer is proper, inasmuch as the employer's unlawful acts caused the
difficulty in determining what would have resulted if there had been
no discrimination. Id. Thus, the complainant is entitled to back pay
unless the agency can show by clear and convincing evidence that, even
absent the discrimination, he would not have been hired off the PNL.
See also 29 C.F.R. � 1614.501(b)(1)(i); Day v. Mathews, 530 F.2d 1083
(D.C. Cir. 1976). This is the correct legal standard to be applied in
this case.
The record shows that the complainant was not referred to the selecting
official, the Deputy Director of NCIS, for selection to vacant GS-14
positions from early 1994 to early 1995 because he was not listed on
the 1994 PNL. The agency argues that the complainant would not have
been promoted because he did not wish to change geographical locations.
This argument is unpersuasive. First, the agency has not shown that
there were no relevant GS-14 vacancies in the complainant's geographic
location from early 1994 to early 1995. Second, the agency's theory
that the complainant would not relocate is speculative. On appeal, the
complainant stated that he desired an overseas assignment, and the NCIS
promotion the complainant accepted was outside his geographical area.
The promotion which was effective January 16, 2000 is located in Camp
Lejeune, North Carolina, over 225 miles from the complainant's residence
in Ladson, South Carolina, and over 275 files from Parris Island, South
Carolina, where he formerly worked.
The agency has not shown by clear and convincing evidence that the
complainant would not have been promoted to GS-14 from the 1994 PNL
nominee list. Because the record shows that at least four of the nominees
on the 1994 PNL list were promoted to GS-14 in April 1994, we find that
the complainant's retroactive promotion with back pay with interest and
benefits should start running from April 15, 1994.
Posting of Notice
EEOC Regulation 29 C.F.R. � 1614.501(a)(1) provides that full relief for
discrimination includes notification to all employees of the agency in the
affected facility of their right to be free of unlawful discrimination
and assurance that the particular types of discrimination found will
not recur. The previous decision ordered the agency to post such
a notice in the facility where the complainant worked, i.e., Parris
Island, South Carolina. The previous decision did not make a clearly
erroneous interpretation of material fact or law when it determined that
the affected facility was where the complainant worked. Accordingly,
the determination in the previous decision regarding this matter will
not be disturbed.
Compensatory Damages
For the first time on request for reconsideration, the complainant
requests compensatory damages. A claim for compensatory damages in the
administrative process may not be raised for the first time on request
for reconsideration. Turner v. Department of Veterans Affairs, EEOC
Request No. 05950960 (January 30, 1998). Accordingly, the complainant's
request for compensatory damages is denied.
As the complainant is a prevailing party, he is entitled to attorney
fees and costs under 29 C.F.R. � 1614.501(e). Instructions on how to
apply for them are set forth below.
CONCLUSION
The decision of the Commission in Appeal No. 01963360 is modified.
There is no further right of administrative appeal on the decision of
the Commission on a Request to Reconsider.
ORDER
(1) The agency shall retroactively promote the complainant to GS-14
with an effective date of April 15, 1994, and provide back pay with
interest and other benefits, including within grade increases, under 29
C.F.R. �1614.501, within 60 calendar days of the date this decision
becomes final. This retroactive promotion and within grade increases
shall be reflected in the complainant's official personnel file, and
shall not result in him being reassigned from his current position.
(2) The complainant is ORDERED to cooperate in the agency's efforts to
compute the amount of back pay, interest, and benefits due, and to provide
all necessary information the agency requests to help it comply. If there
is a dispute about the amount of back pay, interest due, and/or other
benefits, the agency is ORDERED to provide the complainant a check for
the undisputed amount within the applicable time limits set forth above.
POSTING ORDER (G0900)
The agency is ordered to post at its Parris Island, South Carolina
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 12, 2002
__________________
Date
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. had 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges
of employment. The Department of Navy, Parris Island reaffirms its
commitment to comply with these statutory provisions.
The Department of Navy, at its Parris Island, South Carolina facility
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under
the law.
The facility was found to have violated Title VII when it treated an
individual in a disparate manner. The remedy includes retroactive
promotion with back pay. The Department of Navy, Parris Island 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.
The Department of Navy, Parris Island 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