05960418
01-22-1999
Kim B. Ronso, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, and Louis Caldera, Secretary, Department of the Army, Agencies.
Kim B. Ronso v. Department of the Army
05960418
January 22, 1999
Kim B. Ronso, )
Appellant, )
)
v. )
)
F. Whitten Peters, ) Request No. 05960418
Acting Secretary, ) Appeal Nos. 01943160,
Department of the Air Force, ) 01960957
) Hearing No. 370-94-X2027
and )
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agencies. )
)
DECISION ON REQUEST TO RECONSIDER
On April 9, 1996, Kim B. Ronso (hereinafter referred to as appellant)
timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Kim B. Ronso
v. Togo D. West, Jr., Secretary, Department of the Army, EEOC Appeal
Nos. 01943160 and 01960957 (March 7, 1996).<0> EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law or
regulation, or material fact, or a misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the decision is of such exceptional
nature as to have substantial precedential implications, 29 C.F.R.
�1614.407(c)(3). For the reasons set forth herein, it is the decision
of the Commission to grant appellant's request in part.
ISSUES PRESENTED
The issues presented herein are whether the previous decision properly
concluded that the Department of the Air Force (Air Force) did not have
jurisdiction to process appellant's complaint; and whether the decision
properly concluded that, although appellant was discriminated against,
she would not have been selected for the position in question even absent
the discrimination.
BACKGROUND
In August 1992, appellant was non-selected for the position of Recreation
Assistant (NAF) (the Position), which was located at Torii Station on
Okinawa. Although the Position was with the Army, the record reveals
that appellant applied through the Human Resources Office (HRO) at Kadena
Air Force Base. In this regard, it is apparent that the HRO performs
personnel services for Torii, including the handling of applications for
certain positions. Appellant contacted an EEO Counselor and thereafter
filed a complaint against the Air Force alleging discrimination based on
disability (missing digits on left hand). Following an investigation
of the complaint, appellant requested an administrative hearing,
which was held before an administrative judge (AJ) in November 1993.
Thereafter, the AJ issued a recommended decision (RD) in which she found
that appellant had been discriminated against. Specifically, the AJ
found that the selecting official (SO) was not credible on a number of
points, and also found sufficient evidence to conclude that appellant's
disability was a factor in her non-selection.
The AJ also found that, even absent the discrimination, appellant would
not have been selected for the Position. In support of this finding,
the AJ found that the Selectee was very well qualified for the Position
and appeared to be better qualified than appellant. Additionally,
the AJ noted that there was a policy known as "spouse preference."
This policy allows the spouses of active-duty Department of Defense
personnel an employment preference for certain positions in conjunction
with the transfer of the employed spouse. An agency official testified
that the Selectee was entitled to such a preference, and that the only way
the preference can be waived is if the selecting official believes there
is an applicant more qualified than the individual with the preference.
The Air Force issued a final agency decision (Air Force-FAD 1) dated
March 10, 1994, in which it essentially adopted the findings of the AJ.
Consistent with the RD, the decision also awarded attorney's fees
and costs. Appellant subsequently appealed Air Force-FAD 1 and it
was docketed as EEOC Appeal No. 01943160. After receiving a petition
for attorney's fees and costs from appellant, the Air Force issued a
second final decision (Air Force-FAD 2) dated December 19, 1994, in
which it awarded $15,419.25 in attorney's fees and $91.37 in costs.
Appellant did not appeal Air Force-FAD 2.
Thereafter, the Air Force directed the Department of the Army (Army)
to pay the fees and costs it had awarded appellant. At that point,
the Army issued its own final decision (Army-FAD) in which it informed
appellant that her complaint had been transferred to it from the Air
Force. The Army-FAD notes that, although appellant had alleged that Air
Force officials had discriminated against her in the processing of her
application, the individual found to have actually discriminated against
her was an Army official. The decision states that, for that reason,
the Air Force had no jurisdiction to process or decide the case "unless
authorized by the [Army] to do so." Noting that such authorization had
never been given, the decision states that the Army did not learn about
appellant's complaint until the Air Force directed it to pay attorney's
fees.
Regarding the merits of appellant's complaint, the Army-FAD states that
it was adopting Air Force-FAD 1. The Army-FAD states further that it
was vacating Air Force-FAD 2. Specifically, the decision states that,
because appellant was not entitled to any individual relief, she was not a
"prevailing party" and therefore not entitled to attorney's fees.
Appellant appealed the Army-FAD and the prior decision consolidated
appellant's appeals of that decision and Air Force-FAD 1. Initially,
the decision found that it was improper for the Air Force to have
accepted, investigated, and decided appellant's EEO complaint given that
the individual responsible for the discrimination was an Army official.
The decision found further that, pursuant to the Commission's regulations,
the Air Force should have dismissed the complaint and directed appellant
to the appropriate Army personnel at another facility. For these reasons,
the decision found that the Army was not bound by the terms of the Air
Force's FAD.<0> Regarding the merits of appellant's complaint, the
decision adopted the AJ's findings. The decision did find, however,
that because appellant had received no individual relief, she was not a
"prevailing party" and therefore not entitled to an award of attorney's
fees and costs.
In support of her request to reconsider, appellant initially takes
exception with the determination that she would not have been selected for
the Position even absent discrimination. Specifically, she argues that
the Selectee was not entitled to a spouse preference. Appellant argues
further that the Air Force's FADs are binding, and that the previous
decision erred when it found that the Air Force had no authority to
process her complaint. In this regard, appellant argues that the Air
Force is bound by both of the FADs it has issued.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of
the criteria of 29 C.F.R. �1614.407 are met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
As an initial matter, the Commission must decide whether the prior
decision properly concluded that the Air Force did not have jurisdiction
over appellant's complaint. In finding that it did not, the decision
cited 29 C.F.R. �1614.106(a), which states that a complaint must be filed
"with the agency that allegedly discriminated against the complainant."
Although it is true that the SO, an Army official, is the individual who
was found to have discriminated against appellant, we do not agree that
the Army acted alone in the selection process. Specifically, officials
in the Air Force's HRO, in addition to collecting the applications for
the Position, categorized the applications in conjunction with the Air
Force Personnel Action Directive. To the extent appellant's complaint
was premised, in large part, on the manner in which her application was
categorized, and because Air Force officials made that determination in
accordance with an Air Force directive, we find that the Air Force was
a participant in the selection process and that it had jurisdiction to
process her complaint.<0> Accordingly, because both the Army and Air
Force played an active role in the selection process, the Commission
finds that they are properly treated as joint defendants.
It is well-settled that, once an agency has issued a final decision
finding discrimination, it is bound by that finding and may not relitigate
the issue when the case is on appeal. Davis v. Department of Justice, EEOC
Request No. 05931205 (January 9, 1994), citing Rousseau v. Department
of Education, EEOC Appeal No. 01920410 (January 21, 1992). Both the
Air Force and Army have issued final decisions finding discrimination.
In accordance with the foregoing Commission precedent, we must reject the
Air Force's subsequent attempt to modify Air Force-FAD 1 to conclude that
the Army was responsible for that discrimination, and not the Air Force.
We also reject the Air Force's attempt to modify Air Force-FAD 2 by
asking the Army to pay the attorney's fees and costs the Air Force
had awarded appellant. In issuing Air Force-FAD 2, the Air Force was
agreeing that it, not the Army, was going to pay appellant $15,419.25 in
attorney's fees and $91.37 in costs. In this regard, we note that there
is a memo from an Air Force official attached to Air Force-FAD 2 which
directs one of the Air Force's offices to issue appellant a check in the
amount of $15,510.62 (the total amount of the awarded fees and costs).<0>
We also find, under the aforementioned Commission precedent, that the
Army is bound by its finding of discrimination in Army-FAD 1. Id.
Although appellant requests that we reopen that portion of the prior
decision which addresses the merits of her complaint, she has offered
insufficient grounds for reopening that portion of the decision.
Specifically, even assuming, as appellant argues, that the Selectee
was not entitled to a "spouse preference," it is apparent that the
Selectee was better qualified than appellant for the Position. Moreover,
the Commission finds that both the AJ and the prior decision correctly
concluded that, even absent the discrimination, appellant would not have
been selected for the Position.
Finally, we note that appellant has requested attorney's fees and costs
in connection with both her appeal and her request for reconsideration.
Having carefully considered that request, the Commission finds that,
given that appellant has not obtained any additional relief that she was
not already entitled to under Air Force-FAD 2, appellant is not entitled
to any attorney's fees or costs associated with either her appeal or
her request for reconsideration.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission GRANTS the request in
part. The decision in EEOC Appeal Nos. 01943160 and 01960957 (March 7,
1996) remains the Commission's final decision, except as MODIFIED herein.
The agency shall comply with the Order in our previous decision, as
modified below. There is no further right of administrative appeal on
a decision of the Commission on this Request for Reconsideration.
ORDER
1. If the Army has not already done so, it will take all necessary
steps to ensure that the discrimination found to have occurred does not
occur again.
2. The Air Force is ordered to comply with Air Force-FAD 2 and pay
appellant attorney's fees in the amount of $15,419.25, with interest,
and costs in the amount of $91.37.
Both the Army and the Air Force are directed to submit reports of
compliance, as provided in the statement entitled "Implementation of
the Commission's Decision." The reports shall include evidence that
the corrective actions have been implemented.
POSTING ORDER (G1092)
The Army is ORDERED to post at Torii Station, Okinawa, Japan, copies
of the attached notice.<0> 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory. The
agencies shall submit their compliance reports 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 agencies' reports must contain supporting documentation,
and the agencies must send a copy of all submissions to the appellant.
If the agencies do not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 (Supp. V 1993). If the appellant files a civil action,
the administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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
FOR THE COMMISSION:
JAN 22, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _________ which found that a
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Section
791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of the Army, Torii Station, Okinawa, Japan, supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Department of the Army, Torii Station, Okinawa, Japan, has been found
to have discriminated against an employee by considering her disability
in not selecting her for a position and has been ordered to take all
necessary steps to ensure that the discrimination found to have occurred
does not occur again. The Department of the Army, Torii Station, Okinawa,
Japan, will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The Department of the Army, Torii Station, Okinawa, Japan, will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_____________________________
Date Posted: _____________________
Posting Expires: __________________
29 C.F.R. Part 1614
01 Because the record does not reveal when appellant received the
prior decision, we shall treat her request to reconsider as timely.
02 Insofar as the Air Force issued two FADs, it is unclear which FAD the
prior decision is referring to, though it appears to be Air Force-FAD 2.
03 Specifically, appellant alleged that the HRO discriminated against
her insofar as it did not have a category for disabled applicants.
Appellant also argued that the HRO's determination that the Selectee
was entitled to a "spouse preference" was improper.
04 The Commission notes that there has been a four-year delay in the
payment of these fees and costs, and finds, for that reason, that an
award of interest on the fees is appropriate. See Cole v. U.S. Postal
Service, EEOC Petition No. 04950009 (February 19, 1997).
05 The Commission is not requiring the Air Force to post a notice
insofar as the parties all agree that an Army official was responsible
for the discrimination.