EEOC Appeal No. 0120130240
07-21-2015
Complainant v. Dep't of Def.
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120130240
Agency No. DLAR0198
DECISION
On October 22, 2012, Complainant filed an appeal from the Agency's September 20, 2012, final decision (FAD) concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is timely pursuant to 29 C.F.R. � 1614.405(a). For the reasons that follow, the Agency's final decision is AFFIRMED in part, and REVERSED and REMANDED in part.
ISSUE PRESENTED
Did the Agency demonstrate by clear and convincing evidence that Complainant would not have been selected for an Equipment Specialist, (GS-11), position even absent discrimination because a panel ranked Complainant seventh out of ten, when there were only four available positions?
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Buyer/Planner at the Defense Logistics Agency's Aviation Branch, in Jacksonville, FL. On January 24, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when he applied for an Equipment Specialist, (GS-11), position at the Aviation Branch, but was not selected due to a discriminatory selection process. (Report of Investigation (ROI), 4).
The following sequence of events gave rise to the complaint ultimately leading to the Agency concluding that Complainant was discriminated against because he was African-American: S1 had permission to open four Equipment Specialist positions. He contacted Human Resources to initiate a job announcement and identify qualified candidates. After receiving a list of qualified candidates from HR, S1 appointed a panel of three individuals to review the candidates and make recommendations to fill the four vacancies. After an initial review of the candidate applications, the panel identified the individuals they considered to be the top ten candidates (seven Caucasian, three African-American), placing Complainant seventh out of the top ten. The top four candidates on the list (three Caucasian, one African-American) were recommended by the panel to fill the positions. S1 was dissatisfied with the panel's recommendation, expressing concern that the one African-American listed as fourth was not qualified, and requested that the panel conduct a second review of the applications.
Following a second review of the applications, the panel recommended the same four top candidates (three Caucasian and one African-American). S1 was still dissatisfied with the panel's recommendation and requested that the panel interview the top ten candidates. In accordance with S1's instructions, the panel interviewed the top ten candidates and, after doing so, again found the same four candidates (three Caucasian and one African-American) to be best qualified for the four vacancies. S1, in conjunction with two other supervisors, S2 and S3, decided to select the three Caucasian individuals that were recommended by the panel, but expressed concern that the African-American individual who ranked fourth was not qualified for the position because he was a GS-07, and higher-level GS-09s were on the top ten list.
Instead of selecting the African-American individual who ranked fourth, S1, collaborating with S2, S3 and allegedly one of the panel members, decided that a Caucasian individual ranking ninth out of the top ten candidates should be selected for the position. (ROI, p. 17-26). Complainant, along with two other African-American candidates on the top ten list, contended that they were discriminated against because of their race due to the fact that the candidate ranking ninth was selected over them.
At the conclusion of an investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded: (1) Complainant was discriminated against because of his race; and (2) Complainant would not be awarded full relief because the Agency established by clear and convincing evidence that Complainant would not have been selected despite discrimination. The Agency determined that it would take steps to prevent future discrimination and provide EEO training to the responsible management officials. (FAD, p. 12). The Agency also issued the same finding for one other complainant whose complaint is on appeal with the Commission. The third African-American candidate entered into a settlement agreement with the Agency and was awarded an Equipment Specialist position. (Agency Appellate Brief, p. 5).
CONTENTIONS ON APPEAL
Complainant contends that he had more experience than the four individuals who were selected for the positions.
The Agency contends that Complainant would not have been selected for one of the four Equipment Specialist positions because Complainant was consistently ranked seventh out of ten every time he was reviewed by a selection panel that was appointed to recommend candidates. The Agency urges that the individual who was consistently ranked fourth by the selection panel would be selected for the position and that individual has since been given an Equipment Specialist position. Therefore, despite the Agency finding that the Complainant was discriminated against because of his race, the Agency declines to afford Complainant full relief.
ANALYSIS AND FINDINGS
The Agency found that Complainant was discriminated against on the basis of race. The issue on appeal is whether the Agency demonstrated, by clear and convincing evidence, that the Complainant would not have been selected for the Equipment Specialist, (GS-11), position even absent discrimination.
Clear and convincing evidence is evidence which will, at a minimum, result in a "firm belief or conviction" as to the matter at issue. Myers v. United States Postal Service, Appeal No. 01930065 (May 26, 1994) (citing, Godsey v. Department of the Treasury (U.S. Customs Service), EEOC Request No. 05910040 (March 12, 1991), quoting, Black's Law Dictionary, 5th edition (1979), p. 227)). If an agency is able to show by clear and convincing evidence that an individual would not have been selected for a position even absent discrimination, the complainant is not entitled to personal relief, i.e., damages, reinstatement, hiring, promotion, back pay, but may be entitled to declaratory relief, injunctive relief, attorneys' fees or costs. 29 C.F.R. � 1614.501(b)(i); accord, Lilly v. United States Postal Service, EEOC Appeal No. 01982665 (Dec. 22, 2000); see also, Walker v. Social Security Administration, EEOC Request No. 05980504 (April 8, 1999).
In the present case, a panel recommended candidates for the four Equipment Specialist positions; however, the record indicates that the panel's recommendations were not determinative of who would be selected for the vacancies because supervisors conducted an independent review of the top ten candidates to make the final selection decision. The following constitutes evidence that the panel's recommendation was not determinative; rather, it was just one phase of the hiring process. First, S1 convened the panel to determine who the top candidates were for the four available positions, and provided the panel with the criteria by which to evaluate the candidates. (ROI, p. 7). The panel initially reviewed the candidates' resumes against the knowledge, skills, abilities and tasking standards that S1 created, and recommended four candidates. (ROI, p. 7). S1 accepted the panel's recommendation for the three Caucasian candidates, but rejected the panel's recommendation of the one black candidate. (FAD, p. 6). Second, S1 indicated that he was dissatisfied with the selections and instructed the panel to review the resumes again, after which the panel arrived at the same four recommendations. (FAD, p. 6). Third, S1 was still dissatisfied with the panel's recommendations after the second review, and instructed the panel to conduct interviews of the top ten candidates. (FAD, p. 6). The panel's interviews ended with the same four recommendations for the position, with Complainant ranking seventh out of the top ten candidates. (FAD, p.6-7). Fourth, S1, along with S2 and S3 decided to reject the black candidate who the panel ranked fourth and recommended for a vacancy. (FAD, p. 7). Instead, S1, S2, S3 and allegedly a member of the panel, conducted another independent resume review of the six remaining top ten candidates, and concluded that an individual ranking ninth on the panel's list was best qualified for the position. (FAD, p. 7).
Additionally, one management official stated that his understanding of the panel's recommendation was that there were three stand-out candidates, and there was a group of candidates who were equally qualified as the fourth ranked African-American candidate. (ROI, p. 25). While this does not indicate that Complainant was indeed the best qualified candidate for the position, this testimony reveals that Complainant was actively being considered for the vacancy despite the panel ranking him seventh. Further, the Agency does not provide arguments based on an analysis of the resumes, application materials or interview notes, showing that the selectees and the African-American candidate who was ranked fourth by the panel were better qualified for the position than Complainant.
In conclusion, this fact pattern, revealing that the recommendation of the panel was not determinative, and that candidates were reviewed by other selecting officials, leads to the conclusion that the Agency has not proven by clear and convincing evidence that Complainant would not have been selected absent discrimination. The Agency's reasoning is flawed in concluding that the African-American candidate ranking fourth would have been the one selected if discrimination had not occurred. Rather, the selecting officials made an independent analysis of the panel's recommendation and chose from among the top candidates, which means that the panel's recommendation was just one phase of the hiring process. Complainant therefore could have been selected for one of the four positions despite the fact that he was ranked seventh by the panel. Therefore, the Agency has not demonstrated by clear and convincing evidence that Complainant would not have been selected even absent discrimination by the mere fact that the panel ranked Complainant seventh out of the top ten candidates.
As a final matter, we note that we are also making a finding of race discrimination in a separate decision on behalf of another complainant in this same selection process. See Complainant v. Department of Defense (Defense Logistics Agency), EEOC Appeal No. 0120130238. In cases where there are two or more complainant-applicants for a single position and discrimination against both is found, we have typically determined that an appropriate remedy is to re-conduct the selection process free from the taint of unlawful discrimination. See Girdis v. Equal Employment Opportunity Commission, Request No. 05900437 (August 2, 1990) (each claimant has the right to "compete without discrimination for a retroactive promotion and back pay"). However, in the instant case, there was not a single position filled. Rather, the Agency selected candidates for four positions. We have already found that the Agency has failed to prove that the rankings and recommendations of the panel were determinative of the ultimate selection decisions. As such, we have found that the Agency has not proven, by clear and convincing evidence that either complainant would not have been selected for any of the four available positions. Therefore, we conclude that both complainants in this matter are entitled to the remedy of a retroactive placement into one of the four positions filled (or into a substantially equivalent one) with back pay.
CONCLUSION
1. The Agency's finding that Complainant was discriminated against because of his race is AFFIRMED.
2. The Agency's decision to deny Complainant full relief on the ground that it demonstrated by clear and convincing evidence that Complainant would not have been selected for a vacancy despite discrimination is REVERSED. The agency is ORDERED to conduct a supplemental investigation into compensatory damages and award the remedies consistent with this decision and the order below.
ORDER (E0610)
1. Within 120 (one hundred and twenty) calendar days of the date this decision becomes final the Agency shall offer Complainant an Equipment Specialist, (GS-11), position, or a substantially equivalent position, which is in a mutually agreeable location to both Complainant and the Agency. The offer should be made retroactive to the date of Complainant's non-selection to the Equipment Specialist position in question. The offer should be made in writing, providing Complainant 15 (fifteen) calendar days from receipt of the offer to notify the agency of the acceptance or rejection. Failure of the Complainant to respond within the 15-day time limit shall be construed as a declination.
2. Within 120 (one hundred and twenty) calendar days of the date that Complainant is placed into an Equipment Specialist, (GS-11), position or substantially equivalent position or declines such an offer, the Agency shall award Complainant the appropriate amount of back pay, interest, and other benefits pursuant to 29 C.F.R. � 1614.501(c). 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 120 (one hundred and twenty) calendar days of the date the Agency determines the amount it believes to be due. 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. Within 120 (one hundred and twenty) calendar days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages and determine an appropriate award of compensatory damages.
4. The Agency shall consider taking disciplinary actions against the management officials involved in the selection process, aside from the selection panel. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. 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. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
5. Within 120 (one hundred and twenty) calendar days from the date this decision becomes final, the Agency will ensure that the management officials involved in the selection decision receive at least four (24) hours of EEO training with a focus on disparate treatment race discrimination in hiring, if it has not already done so. 1
6. Within 120 (one hundred and twenty) calendar days from the date this decision becomes final, if the Agency has not already done so, the Agency shall take steps to monitor all hiring at DLA Aviation Branch in Jacksonville, Florida for the next five years to ensure that it is in compliance with Agency policy and federal statutes, especially hiring at the GS-9 level and above. It will take all steps necessary to ensure there is no reoccurrence of the actions which occurred in the present case. If any such issues should arise, the Agency will undertake immediate corrective actions as necessary to remedy the problem.
7. If the Agency has not already done so, it shall post the notice discussed below.
The Agency shall 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.
POSTING ORDER (G0914)
The Agency is ordered to post at its Aviation Branch in Jacksonville, Florida, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
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 (K0610)
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 (M0610)
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), at 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 (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
July 21, 2015
__________________
Date
1 The Agency provided the relief granted in (6), (7) and (8) in the FAD. See, FAD, p. 12.
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01-2013-0240
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130240