0720170019
08-03-2018
Kristofer D.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kristofer D.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0720170019
Hearing No. 420-2013-00880X
Agency No. ARANAD12APR01788
DECISION
Following its December 15, 2016, final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. � 1614.403(a). On appeal, the Agency accepted the EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. However, the Agency requested that the Commission affirm its rejection of part of the relief ordered by the AJ. Specifically, the Agency rejected the AJ's order that it develop and adopt policies and procedures related to recruitment and selection of employees for noncompetitive, temporary positions. For the following reasons, the Commission MODIFIES the Agency's final order.
ISSUE PRESENTED
Whether the Agency's final order appropriately rejected that part of the AJ's decision which directed the Agency to develop and adopt policies and procedures related to the recruitment and selection of employees for noncompetitive, temporary positions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Machinist, WG-314-10 at the Agency's Anniston Army Depot facility in Anniston, Alabama. On January 17, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Black/African-American) when on or about March 14, 2012, his supervisor (S1) promoted two White employees to WG-3414-11 Machinist positions.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing and the AJ held a hearing on October 4 and 5, 2016, and issued a decision on November 2, 2016. The Agency subsequently issued a final order accepting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged, but rejected a portion of the AJ's order. Specifically, the provision of the order in question stated:
Within 60 days from the date that this decision becomes final, the Agency's Anniston Army Depot shall develop and adopt policies and procedures related to recruitment and selection of employees for non-competitive, temporary positions, including 120-day temporary promotions, to ensure equal opportunity for employees to be aware of and be considered for opportunities for 120-day temporary positions, and to ensure equal opportunity in the selection process. Within 30 days from the effective date of such policies and procedures, the Agency shall distribute the policies and procedures to all employees at Anniston Army Depot.
CONTENTIONS ON APPEAL
On appeal, the Agency contends, inter alia, that the AJ's order is not appropriate, as it is not specific to Complainant and is inconsistent with Office of Personnel Management (OPM) rules on management of personnel for temporary positions. Specifically, the Agency avers that the policy in place at the facility allows for members of Complainant's protected class to be selected for temporary promotions and the AJ may not require the Agency to disregard OPM rules.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Initially, we find the AJ's decision and Agency final order finding discrimination is supported by substantial evidence in the record and the remedies identified as provisions 1, 2, 4 and 5 are appropriate. The finding of discrimination and those remedies identified as provisions 1, 2, 4 and 5 are not challenged by the Agency. Complainant has not filed an appeal regarding the remedies so we shall not address any remedy apart from provision 3.
Upon review of the Agency's appeal, we find that we must concur with the AJ and find that the Agency's arguments mischaracterize the AJ's order. Pursuant to 29 C.F.R. � 1614.501(a)(2), to remedy a finding of discrimination, the Commission may order the Agency to provide full relief, to include corrective, curative or preventive actions to ensure that violations of the law similar to those found will not recur. We find that provision 3 of the AJ's order is merely an attempt implement 29 C.F.R. � 1614.501(a)(2). In the same manner that the AJ ordered the Agency to provide training on Title VII's prohibition against race discrimination to various officials in order to prevent further acts of discrimination as took place in this case, the AJ also directed the Agency to develop and adopt policies and procedures related to recruitment and selection of employees for non-competitive, temporary positions, including 120-day temporary promotions. The purposes of these policies and procedures is to ensure equal opportunity for employees to be aware of and to be considered for opportunities for 120-day temporary positions, and to ensure equal opportunity in the selection process.
We are not persuaded by the Agency's arguments on appeal. With respect to the Agency's contention that provision 3 will cause it to violate OPM rules and processions, we find that it has not established, beyond mere speculation, that OPM rules and regulations will be violated. We note in this regard, the Agency's argument on appeal that:
As a practical matter, the AJ's order will force managers to compete 120-day temporary promotions, which have been excepted from competitive procedures. For example, if there are 308 Heavy Mobile Equipment Mechanics and there is a 120-day temporary promotion for Heavy Mobile Equipment Mechanics in a particular building, under this decision, does the manager lose the discretion to decide how to announce the non-competitive temporary promotion? Is the manager allowed to only give notice to the mechanics in that building? Or does he go to the Division? Or increase to the entire Directorate? Or to all Directorates across Anniston Army Depot that have Heavy Mobile Equipment Mechanics, even though they may have the particular skills that he is seeking for this temporary noncompetitive promotion? Under this decision, for a noncompetitive action, it appears that he has no discretion and he is now forced to compete the action by announcing it to all Heavy Mobile Equipment Mechanics. That ls a violation of both 5 C.F.R. Section 335.103 and ANADR 690-3. The also exceeds the AJ's authority on this record to micromanage the Agency's local merit promotion plan.
Although the Agency speculates on several negative effects that the AJ's order might have on its ability to operate, we find that the AJ's Order simply requires the Agency to adopt policies and procedures to ensure that when managers exercise their discretion it is done in a non-discriminatory manner, and that these policies and procedures be shared with the employees.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's Final Order. We REMAND the matter to the Agency to implement the remedies ordered by the AJ in the November 2, 2016, decision.
ORDER
Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision is issued:
1. The Agency shall take corrective, curative, and preventive action to ensure that race discrimination does not recur. The Agency will develop and conduct training on Title VII's prohibition against race discrimination, with special emphasis on recruitment, hiring, and promotion. The Agency shall require such training for the responsible management officials, Complainant's Supervisor and concurring Director. Such training is not to be less than eight hours of in-person or interactive training, with no less than one hour devoted to recruitment, hiring, and promotion. Such training is to be provided by an appropriate, reputable training organization, such as one that normally provides EEO training at the facility.
2. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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 identify the action taken. If the Agency decides not 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).
3. The Agency's Anniston Army Depot shall develop and adopt policies and procedures related to recruitment and selection of employees for non-competitive, temporary positions, including 120-day temporary promotions, to ensure equal opportunity for employees to be aware of and be considered for opportunities for 120-day temporary positions, and to ensure equal opportunity in the selection process. Within 30 days from the effective date of such policies and procedures, the Agency shall distribute the policies and procedures to all employees at Anniston Army Depot.
4. The Agency shall provide Complainant with a non-competitive 120-day temporary promotion to a WG-314-l l machinist position in the Fabrication Repair Division, or a substantially similar position, with back pay, interest, and other benefits due Complainant from March 11, 2012. Complainant has 15 days from his receipt of the offer to accept or reject the position. Failure to accept the position within the time frame will be considered a rejection of the offer unless Complainant can show that circumstances beyond his control prevented a timely response.
5. The Agency shall pay Complainant $5,000.00 in compensatory damages.
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). Further, the report must include supporting documentation of any benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Anniston Army Depot, Directorate of Public Works4 office and its Fabrication Repair Division in Anniston, Alabama, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 the date this decision was issued. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (T0610)
This decision affirms the Agency's final decision/action 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 within ninety (90) calendar days from the date that you receive this decision 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. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
____8/3/18______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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