Loren Willis, Appellant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01963674 (E.E.O.C. Jan. 29, 1999)

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).