0520090567
09-17-2009
Herman Landrum, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Herman Landrum,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Request No. 0520090567
Appeal No. 0720080043
Hearing No. 530200600234X
Agency No. TD01B
DENIAL
Complainant timely requested reconsideration of the decision in Herman
Landrum v. Department of Transportation, EEOC Appeal No. 0720080043
(May 29, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the appellate decision, the Commission found complainant was not
subjected to a hostile work environment or retaliated against for his
prior protected EEO activity. However, the Commission found complainant
was subjected to discrimination based on race (African-American) when he
was not selected for the position of Supervisory Airway Transportation
Systems Specialist, FV-2101-J. As a remedy for the discriminatory
non-selection, the Commission ordered the agency to, inter alia, pay
complainant attorney's fees and costs; award complainant the position
of Supervisory Airway Transportation Systems Specialist, FV-2101-J, or a
comparable position in the Pittsburgh Systems Support Center (SSC), or in
any other SSC; and determine and pay complainant the appropriate amount of
back pay, with interest, and other benefits due. Moreover, the Commission
determined complainant may recover the costs of commuting between his
current job and the denied job, because had the agency not discriminated
and had complainant been selected for the position, he would not have
incurred those costs. Complainant asserted that he drove an additional 25
miles one way to the Allegheny County Airport, which is more than if he
had driven to the Pittsburgh International Airport, the location of the
position he would have held if not for the discrimination. Complainant
drove this distance twice a day for 449 days after his non-selection.
Complainant asserted that he should be awarded 48.5 cents per mile (the
2007 General Services Administration reimbursement rate for privately
owned vehicles), at a total of $10,888.25. The Commission found this
amount reasonable and ordered the agency to pay complainant $10,888.25.
In his request for reconsideration, complainant contends that he has not
been placed in a position at the Pittsburgh International Airport and
argues he is still incurring commuting costs related to the discriminatory
acts of the agency. Complainant states he has commuted the additional
25 miles one way for an additional 320 days. He claims he should be
reimbursed at 48.5 cents per mile (the 2007 GSA reimbursement rate for
privately owned vehicles) for a total of $7,760.00.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. We find that complainant has not shown that the appellate
decision involved a clearly erroneous interpretation of material fact
or law, or that the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. Notwithstanding,
the Commission modifies its previous order to require the agency to pay
pecuniary damages from October 16, 2005, until complainant is placed
in the Supervisory Airway Transportation Systems Specialist, FV-2101-J
position, or a comparable position in Pittsburgh SSC, or in any other
SSC to which complainant agrees. In the event complainant declines
the agency's offer, liability for pecuniary damages shall cease on the
date the offer is made. The agency shall reimburse complainant for 50
miles roundtrip per working day at the appropriate General Services
Administration reimbursement rate for privately owned vehicles. The
decision in EEOC Appeal No. 0720080043 with the addition of the modified
order remains the Commission's decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
ORDER
To the extent that it has not already done so, the agency is hereby
ordered to:
1. Within sixty (60) calendar days from the date this decision
becomes final, the agency shall pay complainant pecuniary damages from
October 16, 2005, until complainant is placed in the Supervisory Airway
Transportation Systems Specialist, FV-2101-J position, or a comparable
position in Pittsburgh SSC, or in any other SSC to which complainant
agrees. The agency shall pay complainant for the relevant time frame
for his additional commute of 50 miles per working day roundtrip at
the appropriate General Services Administration reimbursement rate for
privately owned vehicles. In the event complainant declines the agency's
offer, liability for pecuniary damages shall cease on the date the offer
is made.
2. Within sixty (60) calendar days from the date this decision becomes
final, the agency shall award complainant $8,819.25 in attorney's fees and
$176.33 in costs, and any additional reasonable attorney's fees and costs
that were incurred during this appeal (see "Attorney's Fees," below);
3. The agency shall award complainant the position of Supervisory Airway
Transportation Systems Specialist, FV-2101-J, or a comparable position
in the Pittsburgh SSC, or in any other SSC to which complainant agrees;
4. The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant pursuant to 29 C.F.R. �
1614.501. The back pay shall reflect the difference in pay between
complainant's current position and the Supervisory Airway Transportation
Systems Specialist position he applied for. The difference in pay
shall be calculated from the period beginning October 16, 2005, and
until complainant is placed in the Supervisory Airway Transportation
Systems Specialist, FV-2101-J, position or a comparable position in the
Pittsburgh SSC, or in any other SSC to which complainant agrees;
5. The agency shall take action to ensure that Sl is never placed in a
supervisory role over complainant;
6. Within sixty (60) calendar clays of the date that this decision
becomes final, the agency shall provide all management officials at
its Allegheny County Airport in West Mifflin, Pennsylvania and the
Pittsburgh System Management Office with at least eight (8) hours of
EEO training regarding their obligations and responsibilities under the
federal employment anti-discrimination laws, paying particular attention
to disparate treatment;
7. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. 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); and
8. The agency shall post the attached notice as described 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.
POSTING ORDER (G0900)
The agency is ordered to post at its Allegheny County Airport in West
Mifflin, Pennsylvania, and the Pittsburgh System Management Office
facilities 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 (K1208)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 (Z1008)
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
9/17/09
__________________
Date
5
0520090567
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013