01963674
01-29-1999
Loren Willis, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Loren Willis v. Department of Housing and Urban Development
01963674
January 29, 1999
Loren Willis, )
Appellant, )
)
v. ) Appeal No. 01963674
) Agency No. CH-94-06
Andrew M. Cuomo, ) Hearing No. 260-05-7032X
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant timely appealed the final agency decision concerning his
Equal Employment Opportunity (EEO) complaint alleging discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq.; and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. 791 et seq. The Commission accepts this appeal in
accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
Whether the agency discriminated against appellant on the bases of race
(black), sex (male), and physical disability (service connected disability
of 30%), when it failed to select him for the position of Loan Specialist,
GS-12.
CONTENTIONS ON APPEAL
Appellant contends that the agency issued its final agency decision
(FAD) after the 60-day period during which the administrative judge's
(AJ) recommended decision (RD) could be rejected. Therefore, the AJ's
recommended finding of race and sex discrimination should be binding.
The agency, though not responding to appellant's untimeliness argument,
contends that its analysis of the case is correct and should be affirmed.
BACKGROUND
In a formal complaint, dated November 4, 1993, appellant, a Loan
Specialist, GS-11, with the agency, alleged that the agency discriminated
against him based on race (Black), sex (male), age (47)<1> and physical
handicap (war wounds in stomach and leg), during the time period
of 1991 and 1993, by actions which included lack of opportunity for
career advancement details, the refusal to realign his job duties to
reflect the 20% of time which he spent on assigned collateral duties,
and culminating in his September 17, 1993 nonselection for the position
of Loan Specialist, GS-12 (Realty).<2> In a letter dated March 4, 1994,
the agency accepted only the issue concerning whether appellant was
discriminated against when he was not selected for the Loan Specialist
position. The other issues in appellant's complaint were not specifically
rejected, and no appeal rights were sent to appellant by the acceptance
letter.
The agency investigated the accepted issue of appellant's complaint.
At the conclusion of the investigation, appellant requested a hearing
with an EEOC administrative judge (AJ). A hearing was held on April
13, and May 5, 1995. Thereafter, on December 12, 1995, the AJ issued
a recommended decision finding that the agency discriminated against
appellant on the bases of sex and race, when he was not selected for
the Loan Specialist position. It is apparent from the AJ's recommended
relief that the AJ made additional findings of discrimination with
regard to appellant's claims that he was not provided the opportunities
for career advancement details, and that he was refused the opportunity
to realign his job duties to reflect the 20% of time which he spent on
assigned collateral duties. The AJ found no discrimination with regard
to any issue on the basis of physical disability. On March 15, 1995, the
agency issued a final decision adopting the AJ's finding that appellant
failed to prove physical disability discrimination, but rejected her
findings of race and sex discrimination with regard to all issues.
On August 15, 1993, the agency announced the GS-12, Loan Specialist
(Realty) position. The position was to be located in the Multi-Family
Unit of the Loan Management Branch in the Housing Management Division,
at the agency's Milwaukee office. Appellant applied and was referred
as one of four candidates who met the minimal requirements. All four
candidates were interviewed by two selecting officials (SO1 and SO2).
Thereafter, a white female was selected. The SO's stated that the
selectee's application showed multi-family work experience obtained
from working on the Control Funding System (CFS) project. SO2 further
stated that the selectee showed ambition, initiative, the willingness
to stick with a job, and presented herself well during the interview.
Specifically, SO2 stated that the selectee's interview responses were
clear, concise and to the point. The selectee received a score of
62 points for the interview portion of the selection process. It was
further stated that the selectee had some property management experience,
and that property management would be part of the prime group that the
person in this job would be dealing with. In contrast to the selectee,
the SOs stated that appellant went off on a tangent regarding some of
his responses to questions during the interview. As a result, appellant
rated fourth among all candidates in the interview portion with a score
of 54 points. SO1 further provided that appellant did not have any
significant experience that he could relate to Multi-Family servicing.
Analysis and Findings
On appeal, appellant submits a copy of a postal return receipt that he
alleges accompanied the AJ's RD. Appellant also submitted a copy of an
affidavit from the Deputy Director of the Equal Employment Opportunity
Commission's Milwaukee District Office. The Deputy Director declares
that the certification submitted by appellant is in fact the true copy
of the certified mail receipt contained in the hearing file maintained
by the District Office. The receipt was signed on January 11, 1996.
Therefore, the agency had 60-days from January 11, 1996, (March 11, 1996),
in order to issue a final agency decision. However, the agency's FAD
was dated March 15, 1996, four days after the deadline. Appellant argues
that pursuant to 29 C.F.R. �1614.110 and �1614.109(g), the agency's FAD
is void. The Commission notes the agency failed to address the timeliness
issue surrounding the issuance of the FAD on appeal. Therefore, based
on the evidence submitted by appellant, we find that the agency's FAD
is untimely and void. Accordingly, pursuant to 29 C.F.R. �1614.109(g),
the finding and conclusions of the administrative judge, and the relief
ordered shall become the final decision of the agency.
CONCLUSION
It is the decision of the Equal Employment Opportunity Commission to
void the final agency decision finding that it did not discriminated
against appellant and adopt the recommended decision of the
administrative judge and recommended relief as the final agency decision.
In accordance with the above decision the agency shall comply with the
following order.
ORDER
The agency is ORDERED to provide the following corrective actions:
1. Within sixty (60) days of receipt of this decision, the agency shall
offer appellant a retroactive promotion to the Loan Specialist GS-12,
position or substantially similar position. The offer shall be made
in writing. Appellant shall have 15 days from receipt of the offer to
accept or decline the offer. Failure to accept the offer within 15 days
will be considered a declination of the offer, unless the individual can
show that circumstances beyond his control prevented a response within
the time limit.
2. The agency shall award appellant back pay, interest, and all other
benefits he would have received absent discrimination. The agency shall
provide back pay to appellant from the date the agency initially filled
the position after appellant applied for such until the date appellant
accepts or rejects the promotion. Appellant 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 other
benefits, the agency shall issue a check to appellant for the undisputed
amount it believes to be due. Appellant may petition for enforcement or
clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, as referenced
in the statement entitled, Implementation of the Commission's decision.
3. If the offer of reinstatement is declined, the agency shall award
appellant a sum equal to the back pay he would have received computed in
the manner prescribed by 5 C.F.R. �550.805, from the date the position
was initially filled by the agency until the date the offer of promotion
was declined. Interest on back pay shall be included in the back
pay computation. The agency shall inform appellant, in its offer of
promotion, of the right to this award in the event the offer is declined.
Back pay may not extend from a date earlier than two years prior to the
date on which the complaint was initially filed by appellant.
4. The agency shall pay appellant an award of reasonable attorney's
fees in accordance with the 29 C.F.R. �1614.501.
5. The agency shall post the attached notice at the agency's Milwaukee,
Wisconsin Facility. 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.
6. The agency shall provide training in the obligations and duties
imposed by the Title VII of the Civil Rights Act to the agency officials
responsible for the instant action.
7. 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 verifying
that the corrective actions have been implemented.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does 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(c) (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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 THE COMMISSION:
Jan 29, 1999
________________ _____________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations
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 Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et al. 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 agency's Milwaukee, Wisconsin Facility, supports and will comply
with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The agency's Milwaukee, Wisconsin Facility, has remedied the employee
affected by the Commission's finding by offering him retroactive
promotion to a Loan Specialist position, GS-12, back pay with
interest, or an equivalent sum, and training in the obligations and
duties imposed by Title VII to the agency officials responsible for
the instant action. The agency's Milwaukee, Wisconsin Facility,
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.
The agency's Milwaukee, Wisconsin Facility, 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
1 Appellant subsequently withdrew age discrimination as a claim.
2 Both the Administrative Judge and the investigator, at times,
incorrectly referred to the position as Multi-Family Representative.
However, the Vacancy Announcement and personnel documents show that the
position was Loan Specialist, GS-12 (Realty).