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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