05980053
01-08-1999
David E. Stock, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
David E. Stock v. Department of Justice
05980053
January 8, 1999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
David E. Stock, )
Appellant, )
)
v. ) Request No. 05980053
) Appeal No. 01953223
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DENIAL OF REQUEST TO RECONSIDER
INTRODUCTION
On October 14, 1997, the Department of Justice (hereinafter referred to
as agency), initiated a request to the Equal Employment Opportunity
Commission (EEOC) to reconsider the decision in David E. Stock
v. Department of Justice, EEOC Appeal No. 01953223 (September 12, 1997).
EEOC Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. �1614.407(a).
The party requesting reconsideration must submit written argument or
evidence which tends to establish one or more of the following criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation, or material fact, or a misapplication of established
policy, 29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
ISSUE PRESENTED
The issue presented is whether the agency has submitted sufficient
argument or evidence establishing that it was erroneously found in the
previous decision that the agency failed to prove by clear and convincing
evidence that appellant would not have been selected for the position
of Special Agent, absent the discrimination.
BACKGROUND
Appellant filed a complaint of disability (perceived) discrimination
alleging that he was discriminated against in 1989 when he was not
selected for the position of Special Agent with the Drug Enforcement
Agency. Appellant alleged that the agency perceived that he was disabled
because of a previous back injury that he sustained. Subsequent to an
investigation by the agency, a hearing before an EEOC Administrative
Judge (AJ) was held. In a recommended decision issued subsequent to the
hearing by a second AJ, it was held that appellant was discriminated
against based upon a perceived disability, and the agency failed to
show by clear and convincing evidence the appellant would not have
been selected absent the discrimination.<1> In its final decision,
the agency agreed with the AJ's finding that statements made by one
of the selecting officials were tantamount to direct evidence of
discrimination.<2> Nonetheless, the agency held that because there
were other legitimate concerns about appellant's ability to do the job,
a mixed motive analysis under Price Waterhouse v. Hopkins, 490 U.S. 228
(1989) was appropriate.<3> Accordingly, the agency contended that the
AJ erroneously applied a "clear and convincing" standard to the remedy
phase of the case. The agency maintained that the appropriate standard
was a "preponderance of the evidence" standard, and that it had met
this burden. When appellant appealed this decision to the Commission,
the findings of the AJ were upheld. The agency was ordered to offer
appellant employment as a Special Agent, and all appurtenant back pay
and benefits from 1989.
In its request for reconsideration, the agency reiterates its contention
that the proper standard for determining the remedial phase of this
case is a "preponderance of the evidence" standard as articulated in
Price Waterhouse. Even so, the agency contends that it has met the
"clear and convincing" standard through the testimony of the selecting
official, who uttered the discriminatory statements about appellant's
physical condition. The agency maintains that this selecting official had
other legitimate concerns about appellant's ability to accept criticism
and display the appropriate level of aggressiveness. In dispute of
the AJ's finding that these statements were "post hoc rationalizations"
the agency argued that these valid concerns were evident prior to the
decision to reject appellant's application. In addition, the agency
notes that the selecting official with selecting authority declined to
overrule the decision to reject appellant because he had concerns about
appellant's integrity, given the inconsistency between statements on
appellant's SF-171 and his letter to the Veterans Administration asking
for an increase in his disability rating. Finally, the agency disputes
the AJ's finding that the initial reason provided to appellant to justify
his rejection was a pretext for discrimination. Although the agency
admitted that it "incorrectly" informed appellant that he was rejected
because of his age, the agency stated that this reason was offered because
it was agency practice to reject applicants who were close to exceeding
the age requirement, and who were not among the best qualified.
The Commission notes that appellant filed a response to the agency's
request in which he avers that the agency has not presented any evidence
to show that the Commission improperly considered the evidence or
erroneously interpreted the law.
ANALYSIS AND FINDINGS
After a review of the agency's request to reconsider, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and it is
the decision of the Commission to deny the agency's request.
The main contention presented by the agency in its request is the same as
that presented in its final decision, that there were other legitimate
reasons for rejecting appellant. The agency attempts to show in its
request that these legitimate concerns provided sufficient justification
for rejecting appellant, either under a "preponderance of the evidence"
or "clear and convincing evidence" standard.
Despite the agency's arguments to the contrary, the Commission has
reviewed the agency's reasons for rejecting appellant in great detail.
We find that the conclusions of the AJ, as confirmed in the previous
decision, are upheld by the record. Under either a "preponderance of
the evidence" or a "clear and convincing evidence" standard, the agency
has not shown that it would have rejected appellant in the absence of
discrimination. Although the agency cites the selecting official's
concerns about appellant's ability to accept criticism and display
appropriate aggressiveness, the Commission notes that these "concerns"
were raised by the same individual whose comments were tantamount to
direct evidence of discrimination. Accordingly, we find little merit in
this argument. In addition, a close examination of the integrity concerns
purportedly held by another selecting official, reveals that the concerns
emanated from the letter appellant wrote to the Veterans Administration.
We agree with the AJ that concern about the letter is tantamount to
concern about appellant's physical condition. Finally, we also place
no merit in the agency's argument that the reliance on appellant's age
as a reason for the rejection was not a pretext for discrimination,
because this was agency "policy". It is clear that the application of
the "policy" in this case was a pretext for discrimination.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet any of the criteria of 29 C.F.R. �1614.407(c).
It is therefore the decision of the Commission to deny the agency's
request. The decision in EEOC Appeal No. 01953223 (September 12, 1997)
remains the Commission's final decision. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
ORDER (D1092)
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 appellant employment as a Special Agent,
substantially similar to the offer of employment he would have received
if hired in 1989, together with back pay and all benefits to which he
would have been entitled. Appellant shall be afforded fifteen (15) days
to accept or decline the offer of employment. If appellant declines
the offer, his entitlement to back pay and benefits shall cease as of
the date on which the offer is declined.
The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. Appellant 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 appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. Appellant 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 appellant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the
agency does not comply with the Commission's order, appellant may petition
the Commission for enforcement of the order. 29 C.F.R. �1614.503 (a).
Appellant 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. ��1614.408, 1614.409, and
1614.503 (g). Alternatively, appellant 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. ��1614.408
and 1614.409. 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 appellant files a civil action,
the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. �1614.410.
POSTING ORDER (G1092)
The agency is ORDERED to post copies of the attached notice at its
Washington, D.C., main offices of the Drug Enforcement Administration.
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 (H1092)
If appellant 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.
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
JAN 8, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
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 Justice, Drug Enforcement Administration, 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 Justice, Drug Enforcement Administration, has been
found to have discriminated against the individual affected by the
Commission's finding. The Department of Justice, Drug Enforcement
Administration, shall offer the affected individual employment as a
Special Agent, together with back pay and benefits. The Department of
Justice, Drug Enforcement Administration, 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 Justice, Drug Enforcement Administration, 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
1 The Commission notes that the original AJ retired after the hearing
was held. Upon agreement of the parties, a second AJ reviewed the
entire record and issued the recommended decision which is at issue in
this case.
2 The selecting official stated, "[w]ith regard to selection of DEA agents,
it is my first preference to hire someone who is 100% fit over someone
who is 90% or 70% fit or capable of doing the job."
3 The agency correctly noted that since appellant filed his complaint in
February 1990, the Civil Rights Act of 1991 was not applicable to this
case.