David E. Stock, Appellant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJan 8, 1999
05980053 (E.E.O.C. Jan. 8, 1999)

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.