05971075
07-10-2000
Michael E. Jones, Complainant, Rodney Slater, Secretary, Department of Transportation, Agency.
Michael E. Jones v. Department of Transportation
05971075
July 10, 2000
Michael E. Jones, )
Complainant, ) Request No. 05971075
) Appeal No. 01956292
) Agency No. DOT-91-194
) Hearing No. 370-94-X2819
Rodney Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Michael
E. Jones v. Rodney Slater, Secretary, Department of Transportation, EEOC
Appeal No. 01956292 (August 25, 1997).<1> EEOC Regulations provide that
the Commission may, in its discretion, reconsider the previous appellate
decision where the requesting party demonstrates that the previous
decision involved a clearly erroneous interpretation of material fact
or law. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.405(b)). For the reasons
set forth below, the Commission grants complainant's request.
Complainant filed a complaint in which he claimed that the agency
discriminated against him on the bases of race (black), sex, and
reprisal by: (1) issuing him notices of proposed suspension in January
and February 1991; and (2) allegedly denying him training, travel,
awards, promotions, and timely performance evaluations. The agency
investigated the matter and referred it to an administrative judge (AJ),
who recommended a finding of reprisal with respect to issue (1) only.
In finding reprisal, the AJ emphasized that the complainant's conflicts
with his supervisors and his strained relationships with his co-workers
were also factors in the disciplinary actions taken against him. On the
basis of these findings, the AJ utilized a �mixed-motive� analysis to
limit complainant's remedy to the expunging of disciplinary records
from his personnel file and an award of partial attorneys fees.
In its final decision, the agency affirmed the AJ's recommendation as
to the reprisal finding, but further limited complainant's remedy.
Following the AJ's lead in applying the mixed motive analysis, the
agency stated that it had established, by �far more than a preponderance
of the evidence,� that complainant's �inability to accept supervision,
refusal to work with others, frequent hostile outbursts, and proclivity
to demean his coworkers and supervisors� would have caused him to be
disciplined even if he had not been retaliated against for his prior
EEO activity. Consequently, the agency determined that it did not have
to expunge complainant's personnel file.
The previous decision affirmed the agency's final decision on the merits
of the case, with respect to both issues. It also reversed the agency's
grant of attorneys fees, on the ground that the provision of the Civil
Rights Act of 1991 authorizing attorneys fee awards in mixed motive
cases did not take effect until after the disciplinary actions at issue
had occurred.
In his request for reconsideration, complainant does not contest the
merits of the previous decision's liability findings on issues (1) and
(2). Instead, he argues that the previous decision erred in finding
that complainant was not entitled to attorney's fees and expungement.
We agree with the previous decision that complainant was not entitled
to expungement. We also find, contrary to the previous decision, that
complainant was entitled to partial attorneys fees.
It has been long held by this Commission that, without a showing of
direct evidence, the mixed motive analysis does not come into play.
Venoble v. Department of the Army, EEOC Request No. 05900718 (September
20, 1990). In this case, there was no showing of direct evidence
of reprisal whatsoever. Reprisal had been established entirely by
circumstantial evidence, under the analytical framework fashioned by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Hence, the AJ, the agency, and the previous decision all erred
in applying the mixed motive analysis to this situation. The agency
cannot escape liability once discrimination has been established under
McDonnell Douglas.
Nevertheless, the agency can limit the remedy it awards if it proves,
by clear and convincing evidence, that it would have taken the same
adverse action even without reprisal. 29 C.F.R. �1614.501(c)(2); Davis
v. Department of Justice, EEOC Request No. 05931205 (September 1, 1994);
Day v. Mathews, 530 F.2d 1083, 1085(D.C. Cir. 1976). After reviewing
the record under the clear and convincing standard, we find the evidence
of complainant's behavior overwhelming enough to support the agency's
position that it was not required to expunge complainant's personnel file,
even though reprisal had been established. In other words, the agency
showed, by clear and convincing evidence, that it would have disciplined
complainant even if it had not considered his previous EEO activity.
The only issue remaining is the previous decision's finding that
complainant was not entitled to an attorneys fee award that the
agency decided to grant. Because the remedy limitation under Day
v. Mathews does not affect the liability finding, complainant is
entitled to attorneys fees to the extent that he shows himself to
be a prevailing party. 64 Fed. Reg. 37,644, 37,659-60 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.501(e));
Newman v. Piggie Park Enterprises, 390 U.S. 400 (1975); Troie v. United
States Postal Service, EEOC Request No. 05930866 (September 22, 1994).
Since the agency did not raise the issue of whether complainant was
a prevailing party, the agency is directed to award attorney's fees,
to the extent that it has not already done so.
After a review of the Complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to grant the request. The agency
shall be directed to award attorneys fees, as it agreed to do in its
final decision, and to post notice that discrimination had occurred.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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, unless the agency has already done so.
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 (G1092)
The agency is ORDERED to post at its Federal Transit Administration
facility in San Francisco 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 (K1199)
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
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (Q0400)
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 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 (Z1199)
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:
07-10-00
Date Frances M. Hart,
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.