0420080018
03-30-2009
John E. Eubanks, Petitioner, v. Steve Preston, Secretary, Department of Housing and Urban Development, Agency.
John E. Eubanks,
Petitioner,
v.
Steve Preston,
Secretary,
Department of Housing and Urban Development,
Agency.
Petition No. 0420080018
Appeal No. 0120040070
Agency Nos. FW-95-08 and FW-95-30
DECISION ON A PETITION FOR ENFORCEMENT
On July 21, 2008, the Commission's Compliance and Control Division
recommended a petition for enforcement of the order set forth in John
E. Eubanks v. Department of Housing and Urban Development, Appeal
No. 0120040070 (September 14, 2005). On July 24, 2008, the Commission
docketed the petition for enforcement. This petition for enforcement
is accepted by the Commission pursuant to 29 C.F.R. � 1614.503.
The petition for enforcement concerns a complaint in which the complainant
alleged that the agency discriminated against him on the bases of race
(African-American), sex (male), and age (over 40 years old) in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
Complainant appealed the agency's final decision to the Commission,
and in Appeal No. 0120040070, the Commission found, in pertinent part,
that complainant was discriminated against on the bases of sex and age
when he was not selected for the positions of Director of Fair Housing
Enforcement Centers Program Operations or Director of Program Operations
and Compliance Centers. Consequently, the Commission ordered the agency
to undertake the following remedial actions:
1. Within thirty (30) calendar days from the date this decision becomes
final, the agency shall offer complainant either the position of Director
of Fair Housing Enforcement Centers Program Operations, GS-15, or Director
of Program Operations and Compliance Centers, GS-15, or a substantially
equivalent position. Complainant shall be given a minimum of fifteen
days from receipt of the offer of placement within which to accept or
decline the offer. Failure to accept the offer within the time period
set by the agency will be considered a rejection of the offer, unless
complainant can show that circumstances beyond his control prevented a
response within the time limit
2. The agency shall determine the appropriate amount of back pay,
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision is received. The complainant 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 the complainant for the undisputed amount within
sixty (60) calendar days of the date the agency determines the amount
it believes to be due. The complainant 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."
3. The agency shall undertake a supplemental investigation to determine
complainant's entitlement to compensatory damages under Title VII.
The agency shall give complainant notice of his right to submit objective
evidence (pursuant to the guidance given in Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective
evidence from complainant in support of her request for compensatory
damages within forty-five (45) calendar days of the date complainant
receives the agency's notice. No later than ninety (90) calendar days
after the date that this decision becomes final, the agency shall issue
a final agency decision addressing the issue of compensatory damages. The
final decision shall contain appeal rights to the Commission. The agency
shall submit a copy of the final decision to the Compliance Officer at
the address set forth below.
4. The agency shall provide EEO training to all responsible management
officials regarding their obligations under Title VII and the ADEA; and
5. The agency shall consider taking appropriate disciplinary action
against the responsible management officials, including the program
directors who recommended the selectees to the selecting official. 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 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).
The decision also ordered the agency to pay complainant reasonable
attorney's fees incurred in the processing of the complaint. The matter
was assigned to a Compliance Officer and docketed as Compliance
No. 0620051176 on September 15, 2005.
Upon review, we first note that the record indicates that the agency
paid complainant $10,732.00 in compensatory damages, in accordance with
prong 3 of our order.1 However, there is no evidence that the agency
has complied with other provisions of our order.
Placement in Position
A July 21, 2008 Compliance Officer's recommendation that the Office
of Federal Operations docket a petition for enforcement in this matter
indicates that the agency offered complainant a Director of Fair Housing
Enforcement Operations (FHEO) Region II position with only 30 days to
relocate without allocating relocation fees for complainant to move
from Texas to New York. The recommendation further indicates that the
agency has not paid complainant ordered back pay and interest; has failed
to submit documents showing that EEO training has been provided to all
responsible management officials; has failed to submit any documentation
demonstrating that it considered disciplining responsible management
officials; and, has failed to pay complainant's attorney's fees and
costs.
For instance, the Commission ordered the agency to offer complainant
either the position of Director of Fair Housing Enforcement Centers
Program Operations, GS-15, or Director of Program Operations and
Compliance Centers, GS-15, or a substantially equivalent position.
The record reveals that in a letter dated December 16, 2006, the agency
offered complainant the position of Director of FHEO Region II in New
York in December 2005, although our finding concerns non-selections for
positions in Fort Worth, Texas; Atlanta, Georgia; and, Denver, Colorado.
The agency's offer letter stated that the positions of Director of
Fair Housing Enforcement Centers Programs Operations or Director of
Program Operations and Compliance Centers no longer existed because
of the agency's reorganization. In a letter dated April 28, 2006,
complainant responded that he did not think that the agency's offer was
"a good faith proposal." Complainant stated that he felt that he should
not have to "accept a position in a geographical location which has a high
cost of living and incur relocation expenses without remuneration."
The Commission recognizes that in some instances a person cannot be
offered the originally sought position because it has been abolished
for non-discriminatory reasons or the functions of the position have
been relocated or consolidated with other duties. The Commission's
regulations require that, in situations where an agency has articulated
a reasonable explanation for its action, the aggrieved individual must be
awarded a substantially equivalent position. A substantially equivalent
position is one that is "similar in duties, responsibilities, and location
(reasonable commuting distance) to the position for which [petitioner]
originally applied." Patterson v. Department of Agriculture, EEOC Request
No. 05940079 (October 21, 1994) (citation omitted). The burden to prove
substantial equivalency rests with the agency. Shaw v. Department of
the Air Force, EEOC Request No. 05930370 (July 15, 1994).
In this case, we find that the offered position in New York is not
substantially equivalent to the position we ordered the agency to place
complainant in because the offered position is not in a location that
is near the positions applied for and for which he was not selected.
See Paul C. Carroll v. Department of the Air Force, EEOC Petition
No. 0420070018 (February 29, 2008)(finding that position offered
in Missouri was not substantially equivalent to the North Carolina
position that petitioner applied for and for which he was not selected).
Moreover, the agency has not provided any evidence that there were
not any substantially equivalent positions in or closer to Denver,
Fort Worth, or Atlanta. Further, we note that the agency failed to
provide any documentation proving that the positions of Director of
Fair Housing Enforcement Centers Program Operations, GS-15, or Director
of Program Operations and Compliance Centers, GS-15, were abolished
because of a reorganization. Likewise, the agency failed to provide any
documentation to the Commission demonstrating that the offered position
was substantially equivalent to the positions for which complainant
applied beyond its bare assertion that the positions were substantially
equivalent. Thus, we find that the agency failed to comply with our order
to place complainant in a position that is substantially equivalent to
the positions of Director of Fair Housing Enforcement Centers Program
Operations, GS-15, or Director of Program Operations and Compliance
Centers, GS-15.
Back Pay
With respect to the ordered back pay award, the record indicates that the
Compliance Officer requested that the agency submit a copy of a check
to the Commission showing that the agency paid complainant back pay,
interest, and other benefits ordered by the Commission. On June 24,
2008, the agency informed the Compliance Officer that the pertinent
documentation would be forwarded to the Compliance Officer as soon as
the paperwork is completed. Nevertheless, the agency failed to submit
the requested documentation to the Compliance Officer, and there is no
evidence that the agency has provided complainant with the ordered back
pay, interest, and benefits. Thus, we find that the agency failed to prove
that it paid complainant the ordered back pay, interest, and benefits.
EEO Training and Discipline
In a letter dated June 6, 2008, the agency informed the Compliance
Officer that it did not provide EEO training or consider disciplining
the responsible management official because the former Secretary of
Housing and Urban Development who was responsible for complainant's
non-selection was no longer employed with the agency. However, there
is no indication in the record that the former Secretary of Housing
and Urban Development was responsible for complainant's non-selection.
In fact, the General Deputy Assistant Secretary for FHEO (DAS) stated in
an investigative affidavit that the former Assistant Secretary for FHEO
chose the selectees for the relevant positions, but her selections were
"based on the recommendations from the Headquarters Program Directors who
had reviewed the description in the applicant's SF-171s which reflected
their past and present work experiences as related to the quality of the
ranking factors." Although the record indicates that the former Assistant
Secretary for FHEO is no longer employed by the agency, we find that all
Headquarters Program Directors involved in complainant's non-selection
are also responsible management officials in this case. In fact, we
note that our prior decision specifically ordered the agency to consider
disciplining "the program directors who recommended the selectees to
the selecting official." There is no evidence that the responsible
Headquarters Program Directors are no longer employed by the agency or
that the agency considered disciplining them. Thus, we find that the
agency has not complied with prongs 4 and 5 of our remedial order.
Attorney's Fees
With respect to attorney's fees, the agency maintained that it requested
a verified statement of attorney's fees from complainant on January 13,
2006, but complainant failed to submit the requested documentation.
However, the agency did not provide any documentation to us showing that
it requested the statement from complainant. Therefore, we find that
the agency has not proven that it complied with our order to provide
complainant with attorney's fees.
CONCLUSION
Accordingly, the Commission finds the agency has not fully complied
with our previous Order set forth in EEOC Appeal No. 0120040070 and must
take additional steps to be in full compliance. The agency is therefore
directed to comply with the Order herein.
ORDER
The agency is hereby ORDERED to take the following actions:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall give an unconditional written offer to complainant
of retroactive placement in either the position of Director of Fair
Housing Enforcement Centers Program Operations, GS-15, or Director of
Program Operations and Compliance Centers, GS-15, or a substantially
equivalent position. The position offered must be in or within a
reasonable commuting distance of Atlanta, Georgia; Fort Worth, Texas;
or Denver, Colorado. If the specific positions have been abolished, the
agency must place complainant in a GS-15 position (with any applicable
retroactive step increases) that has duties, responsibilities, and
benefits/pay that are substantially equivalent to the positions for
which complainant applied for but was not selected. Complainant shall
have thirty (30) calendar days from receipt of the offer within which
to accept or decline the offer. Failure to accept the offer within the
30-day period will be considered a declination of the offer,
unless complainant can show that circumstances beyond his control
prevented a response within the time limit. If the offer is accepted,
appointment shall be retroactive to the date the applicant would
have been hired. If no substantially equivalent position is available,
then the agency shall pay complainant front pay within sixty days of the
date it determined that no position was available. Front pay shall be
awarded until complainant has been placed in the appropriate position
as stated above. If there is a dispute regarding the exact amount of
front pay, the agency shall issue a check to the complainant for the
undisputed amount within sixty days of the date the agency determines the
amount it believes to be due. Complainant 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."
2. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall pay complainant back pay, interest, and
other benefits due complainant, pursuant to 29 C.F.R. � 1614.501.
Complainant 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 the complainant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes to
be due. The complainant 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."
Additionally, the agency shall provide the Compliance Officer
with documentation indicating that it has paid complainant
the appropriate amount of back pay, interest, and
benefits. The agency shall also provide its calculations for
back pay, specifically, detailing how it determined complainant's
gross salary due and its method of calculating any earnings
during the relevant period. The agency must continue its
back pay award until petitioner accepts or rejects the new offer.
3. The agency shall provide EEO training to all Headquarters Program
Directors involved in the non-selection of complainant, as well as any
other personnel responsible for complainant's non-selection. If any
responsible management official is no longer employed by the agency,
the agency shall provide the Compliance Officer with document showing
that the official is no longer employed by the agency.
4. The agency shall consider taking appropriate disciplinary action
against the management officials responsible for not selecting
complainant, including the Headquarters Program Directors who recommended
the selectees to the selecting official. 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 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 reflecting
their departure.
5. The agency shall pay complainant attorney's fees. 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.
6. The agency is further directed to submit a report of compliance,
as provided in the statement below entitled "Implementation of the
Commission's Decision." The report shall include all documentation
ordered herein as well as any additional documentation requested by the
Compliance Officer.
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 petition.
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 (R0408)
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 action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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
_ March 30, 2009________________
Date
1 We note that the amount paid in compensatory damages reflects a
settlement agreement on compensatory damages between the parties.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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