0720080058
01-30-2009
Lewis Mallet, Jr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lewis Mallet, Jr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720080058
Agency No. 200J-0695-2006102790
Hearing No. 443-07-00061X
DECISION
On August 28, 2008, the agency filed a timely appeal which the Equal
Employment Opportunity Commission (EEOC or Commission) accepts pursuant
to 29 C.F.R. � 1614.405(a). On appeal, the agency requests that the
Commission affirm its August 27, 2008, final order modifying an EEOC
Administrative Judge's (AJ) judgment dated July 29, 2008 that found
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. Complainant did not appeal the
agency's final order.
In his complaint complainant alleged in relevant part that he was
discriminated against based on his race (black) when he was not
selected for promotion [effective April 30, 2006] to the position of
supervisory housekeeping aid, vacancy announcement number MP-06-06 ML.1
The announcement advertised two slots located at the VA Medical Center
Milwaukee Wisconsin.
Following an investigation and hearing, an EEOC AJ found discrimination.
Eighteen people applied for the position, and four, including complainant,
were referred by rating panel of two to an interview panel. The interview
panel was the program manager for environmental care,2 who for the most
part drafted the questions asked; and two other members. The program
manager chose at least one member of the rating panel and all members
of the interview panel. Following the interviews, the program manager
served as the recommending official. He was involved in nearly every
facet of the decision making process, and his recommendation carried much
weight with the selecting official. At his recommendation, which was
allegedly based on the assessment of the interview panel, the selecting
official chose the selectee (white) and decided to re-advertise the
second slot.
The AJ found that the selectee and complainant were equally qualified
for the supervisory housekeeping aid slots, but rather than promote
complainant, the agency discriminatorily withdrew the second slot. The AJ
favorably recited testimony by a housekeeping aid that he overheard one
of the rating panel members tell the selectee to apply for the position
and he would get the job. The AJ found that the housekeeping aid's
testimony was more persuasive than the rater, who testified she did not
recall the conversation. Similarly, the AJ found that the recommending
official's testimony that he did not know complainant's race and sex was
incredible in light of his numerous contacts with complainant. In fact,
when pressed on the matter and asked what he believed, the recommending
official testified he had no idea of complainant's race and gender.
The AJ found that the testimony of the rater and recommending official was
incredible, and indicated this was a factor in finding discrimination.
Further, the AJ's decision noted that when the selection occurred there
were no black supervisory housekeeping aids. It favorably recited
testimony of a co-worker of complainant that black males were routinely
denied promotions in the recommending official's department; as well as
the testimony of a supervisory housekeeping aid who formerly supervised
complainant that he believed race sometimes played a factor in promotions,
and that complainant was better qualified than the selectee.
On appeal, the agency argues that complainant was not selected because he
did poorly on his interview. It disputes the AJ's credibility findings.
In opposition to the agency's appeal, complainant asks that the AJ's
decision be fully implemented. We defer to the AJ's credibility findings.
While the agency disagrees with the AJ's finding of discrimination, it
is supported by substantial evidence and the AJ's decision is affirmed.
29 C.F.R. � 1614.405(a).
ORDER
The agency is ordered to take the following remedial actions:
1. Offer to promote complainant to the position of supervisory
housekeeping aid, or a substantially equivalent or some other mutually
agreeable position, in the VA Medical Center Milwaukee Wisconsin,
effective April 30, 2006,3 within 30 calendar days after this
decision becomes final, with all career ladder promotions he would have
subsequently been entitled had he performed in a fully successful manner.
Complainant shall be given a minimum of 30 calendar days from receipt of
the offer 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 and pay the appropriate amount of back pay,
with interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than ninety (90) calendar days after the date this
decision becomes final. If complainant declines to accept the promotion,
the back pay period for the supervisory housekeeping aid position shall
end on the date he declines the offer of promotion. 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. Train the individual identified herein as the recommending official
on how to identify and prevent employment discrimination under Title VII.
4. Consider taking disciplinary action against the above individual.
The agency shall report its decision. 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.
The agency shall complete actions 3 and 4 above within 120 calendar days
after this decision becomes final.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented,
and be copied to complainant.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Medical Center Milwaukee
Wisconsin, Environmental Management Service area, copies of the attached
notice. 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0408)
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 (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
January 30, 2009
__________________
Date
1 Complainant also claimed that he was discriminated against when he
was later not selected for promotion again. The agency's final order
implemented the AJ's decision finding no discrimination on this claim,
and complainant did not appeal.
2 Textile care basically refers to the laundry department, and
environmental care basically refers to housekeeping.
3 We find that in the absence of discrimination, more likely than not
complainant would have been promoted effective April 30, 2006, the same
effective date the selectee for the first slot was promoted.
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0720080058
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0720080058