Jeffrey L. Darnell, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 27, 2006
01A51673 (E.E.O.C. Sep. 27, 2006)

01A51673

09-27-2006

Jeffrey L. Darnell, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Jeffrey L. Darnell,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A51673

Agency No. AFBVFOO2A0100

DECISION

On December 17, 2004, complainant filed an appeal with this Commission

regarding the agency's noncompliance with its final order dated July

9, 2004. See 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The record reveals that complainant filed a complaint dated December 24,

2004 wherein he alleged that the agency subjected him to discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq. when it failed to select him for

the position of Project Officer, GS-0301-13, in the Research Business

Management Office. A hearing was conducted on January 8 and 9, 2004, and

in a decision dated March 29, 2004, an Administrative Judge (AJ) found

that complainant was discriminated on the basis of sex when the agency

failed to select him for the Project Officer position. The AJ ordered

the agency to undertake the following actions: 1) offer complainant

the next available Project Officer position; 2) pay complainant the

difference between a GS-0326-12 and a GS-0301-13 position for the period

beginning with the date the female selectee was placed in the subject

Project Officer position, until the date that complainant was promoted

to his current position of GS-301-13 Systems Acquisitions Manager,

plus interest; 3) post a copy of a notice in the agency stating that the

Commission found that the agency engaged in unlawful discrimination and

ordered appropriate remedies; 4) and provide complainant with any other

benefit he lost because of the discrimination. In a decision dated

June 2, 2004, the AJ ordered the agency to pay complainant $14,400.00

in attorney's fees. In a final order dated July 9, 2004, the agency

fully implemented the AJ's decision.

In a letter to the Commission dated December 17, 2004, complainant

alleged that the agency did not comply with its final action because it

failed to retroactively promote him to the GS-0301-13 level from the date

another person was selected for the GS-0301-13 Project Officer position.

Complainant contends that he should receive a retroactive promotion to the

GS-13 level because the AJ's decision stated that complainant is entitled

to relief "commensurate with the injuries suffered," and he would have

been promoted earlier absent the discrimination.1 Complainant maintains

that the agency's failure to retroactively promote him will affect his

future earnings and retirement benefits.

29 C.F.R. � 1614.504 provides that a complainant must notify the agency

in writing of the alleged noncompliance with a FAD within 30 days of when

the complainant knew or should have known of the alleged noncompliance.

Thereafter, a complainant may file an appeal with the Commission

thirty-five (35) days after he has served the agency with allegations

of non-compliance if the agency has not responded, but must file an

appeal within thirty (30) days of receipt of the agency's determination

regarding the allegation if the agency has failed to satisfactorily

respond to the complainant's satisfaction.

In this case, the record reflects that complainant directly appealed his

allegation of noncompliance to the Commission without first notifying the

agency, which departed from the procedure set forth in EEO regulations

for alleging noncompliance. The agency did not respond to complainant's

claim, and there is no indication the agency has retroactively promoted

complainant to the GS-13 level. However, because the record indicates

that the agency received a copy of complainant's noncompliance claim and

has not responded within 35 days of receiving notice of complainant's

appeal to the Commission, we exercise our appellate discretion and

address complainant's claim in this decision.

Upon review of this matter, we determine that by ordering the agency to

provide complainant with "any other benefit [he] has lost" because of the

non-selection, the AJ essentially ordered the agency to retroactively

promote complainant to the GS-0301-13 level from the date the selectee

was placed into the position.2 Complainant was deprived of a promotion

to the GS-0301-13 level from the date the selectee was placed into the

Project Officer position because of the agency's discriminatory actions.

Therefore, under the AJ's order, complainant is entitled to receive

retroactive promotion to the GS-0301-13 level from the date the selectee

was placed in the GS-13 Project Officer position. Accordingly, we find

that the agency's failure to retroactively promote complainant from that

date constitutes noncompliance with the final order.

CONCLUSION

Accordingly, we find that the agency is in non-compliance with its

final order. In light of the foregoing, we hereby direct the agency to

comply with the Order below, which directs the agency, to the extent it

has not done so, to provide the relief ordered by the AJ. If the agency

does not comply, complainant may file a petition for enforcement of the

Order below, pursuant to 29 C.F.R. � 1614.503.

ORDER

To the extent the agency has not done so, within thirty (30) days of

the date this decision becomes final, the agency shall retroactively

promote complainant to the GS-0301-13 level from the date the selectee

was placed in the subject GS-0301-13 Project Officer position, with

all benefits he would have received had he been promoted on that date.

The retroactive promotion shall be reflected on complainant's SF-50 and

in all personnel files.

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 (K0501)

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

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 (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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. 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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

_September 27, 2006_____________

Date

1 The record reveals that after the subject non-selection, complainant

was promoted to a GS-301-13 Systems Acquisitions Manager position.

2 We note that the AJ also ordered the agency to pay complainant back

pay at the GS-0301-13 level from the date of the non-selection, further

indicating an intent to provide complainant with a retroactive promotion

to the GS-13 level.

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01A51673

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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01A51673

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