01971472
12-22-1998
James Bankston, Appellant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
James Bankston v. Tennessee Valley Authority
01971472
December 22, 1998
James Bankston, )
Appellant, )
)
v. )
) Appeal No. 01971472
Craven H. Crowell, Jr., ) Agency No. 0828-92077R
Chairman, ) Hearing No. 250-94-8276X
Tennessee Valley Authority, )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission challenging the
final decision of the Tennessee Valley Authority (agency) on a back
pay award concerning his complaint of discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. The Commission accepts this appeal in accordance with EEOC
Order No. 960.001.
Appellant filed a formal complaint with the agency on August 28, 1992,
alleging discrimination based on race (Black) and reprisal (prior EEO
activity) when he was not selected for the position of System Dispatcher,
M-3, at the Jackson Area Dispatching Control Center on or about November
11, 1991. Subsequently, the agency dismissed appellant's complaint for
failure to state a claim. Appellant appealed the agency's dismissal
with this Commission in EEOC Appeal No. 01931067. On April 21, 1993,
the Commission issued a decision reversing the agency's dismissal of
appellant's complaint and remanded the complaint for further processing.
Thereafter, the agency accepted appellant's complaint and consolidated
the complaint for hearing purposes with two other formal complaint's
filed by appellant. Following a hearing that was held on August 22,
1996, the administrative judge (AJ) issued a recommended decision
wherein he found no discrimination with regard to appellant's previous
two formal complaints but found that appellant had been discriminated
against as alleged with regard to the instant non-selection (Systems
Dispatcher position). The agency adopted the AJ's recommended decision
as its final agency decision (FAD), but modified the AJ's recommended
corrective action with regard to the back pay award. In its FAD,
the agency concluded that appellant's back pay award as recommended by
the AJ should be limited because of his failure to mitigate damages.
Specifically, the agency contends that it offered appellant the System
Dispatcher position at Jackson twice after he filed his formal complaint.
However, appellant refused the offer. Therefore, citing applicable law,
the agency concluded that appellant's back pay award should be limited
to the period between his discriminatory non-selection (on or about
November 11, 1991) until the time of the agency's second written offer
(on or about February 1992) or until the selectees' placement in the
position, whichever is the latter.
On appeal, appellant argues that the AJ's recommended decision
specifically rejected the agency's mitigation of damages argument.
He further contends that the Commission in EEOC Appeal No. 01931067
(April 21, 1993), rejected the agency's proffered defense by finding
that the agency's offer in February 1992, was not made in an effort to
resolve the matter at issue.
After a thorough review of the record, including both parties statements
on appeal, the AJ's recommended decision, and the Commission's decision
in Appeal No. 01931067, we find that the agency has met its burden of
proof on the mitigation issue. Accordingly, we find that the agency
properly limited appellant's back pay damages award to the time period
between November 11, 1991, and the deadline date of the agency's second
offer for the System Dispatcher position, February 24, 1992.
In the present case, appellant prevailed on his claim of discrimination.
Therefore, he is entitled to full relief in the form of back pay
and benefits as authorized by Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. Awards of back pay
in Title VII cases are governed by 5 C.F.R. 550.801 et seq. See 29
C.F.R. 1614.501(b)-(c). The applicable regulations provide that amounts
earnable with reasonable diligence by the person discriminated against
shall operate to reduce the back pay otherwise allowable. Thus, appellant
had a duty under Title VII to mitigate or lessen damages by making a
"reasonable good faith effort to find other employment." This means that
appellant was required to seek substantially equivalent positions, that
is positions that afforded virtually identical promotional opportunities,
compensation, job responsibilities, working conditions, and status as
the position appellant was discriminatorily denied. See Weaver v. Casa
Gallardo, Inc., 922 F 2d 1515 (11th Cir. 1991); Todd v. U.S.P.S., EEOC
Petition No. 04920007( August 27, 1992).
The agency, not appellant, has the burden of proof on the issue of
mitigation. The agency must prove that petitioner failed to exercise
reasonable efforts to find work. The record shows that following
appellant's formal complaint, the agency first offered appellant the
position in question orally during a telephone conversation on February
11, 1992, and, per appellant's request, subsequently followed its oral
offer with a written job offer, dated February 12, 1992. As appellant
correctly noted and our decision in Appeal No. 01931067 found, the agency
did not make its job offer in an effort to resolve appellant's complaint.
Therefore, we agree with the agency's argument that it presented appellant
with a viable means to mitigate his damages as required by the applicable
regulations. Moreover, we find that the issue of mitigation of damages is
a separate issue and unlike that which was considered by this Commission
in the procedural appeal noted above and cited by appellant. We further
find that the entitlement to back pay for computation purposes runs from
the time appellant was denied the position in question by the agency
until he received an equivalent or greater job offer from the agency.
See generally, Tyler v. U.S.P.S., EEOC Appeal No. 05870340 (February
1, 1988). In accordance with our findings, the agency's final decision
limiting appellant's back pay award is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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. If you file a request to reconsider and also file a
civil action, 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:
Dec 22, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations