Rhonda Y. Paris, Complainant,v.Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionMar 17, 2003
05A21080 (E.E.O.C. Mar. 17, 2003)

05A21080

03-17-2003

Rhonda Y. Paris, Complainant, v. Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.


Rhonda Y. Paris v. Tennessee Valley Authority

05A21080

March 17, 2003

.

Rhonda Y. Paris,

Complainant,

v.

Glenn L. McCullough, Jr.,

Chairman,

Tennessee Valley Authority,

Agency.

Request No. 05A21080

Appeal No. 01A02122

Agency No. 4527R

DENIAL OF REQUEST FOR RECONSIDERATION

The Tennessee Valley Authority (agency) timely initiated a request to the

Equal Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Rhonda Y. Paris v. Tennessee Valley Authority, EEOC Appeal

No. 01A02122 (July 9, 2002). EEOC Regulations provide that the Commission

may, in its discretion, reconsider any previous Commission decision

where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

The lengthy procedural history of the instant case was summarized in

the Commission's prior decisions, and we will restate only the relevant

history herein. Complainant alleged discrimination in violation of Title

VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �

2000e et seq., on the basis of race (Black) when her temporary employment

as a Clerk-Word Processor she was terminated under a reduction-in-force

(RIF) effective July 31, 1989.<1> An EEOC Administrative Judge found

race discrimination, and an agency final decision (FAD) adopted the

discrimination finding, while another FAD found that complainant was

entitled to no remedies as it did not �convert� temporary employees to

permanent employees, and as complainant quit her position with the agency.

The Commission then issued a decision in remanding complainant's claim

to the agency for a determination as to whether complainant would

likely have been selected for a permanent position in accordance with

the agency's normal business practices had she remained a temporary

agency employee in 1989 and 1990. Rhonda Y. Paris v. Tennessee Valley

Authority, EEOC Appeal No. 01973306 (December 15, 1998). However,

the agency did not make this determination, electing instead to issue a

final agency decision (FAD) which construed our decision so as to not

award complainant any relief and finding that she was not entitled to

be placed in a permanent position. In so finding, the agency again

relied its holding that it selects employees for permanent positions

rather than �converting� temporary employees into permanent positions,

and thus there was no basis to find that complainant would have gotten

a permanent position had she not left the agency.

In our prior decision, we found that the agency's interpretation of our

order failed to comply with the �spirit and intention� of the decision,

as well as not complying with the Commission's regulations. We found

that the agency's drawing the conclusion that complainant was entitled

to no relief as it does not �convert� temporary employees to permanent

employees did not make the complainant whole. Further, we found that

the construction of the order by the agency was without any support.

As a result, the Commission found that the agency's FAD was unsupported

and contrary to prevailing law, as the agency failed to demonstrate

that complainant would not have been selected for a permanent position

in 1989 or 1990. We thus reversed the FAD and required the agency to

take the remedial actions set forth in our Order, infra. Specifically,

the agency was ordered to determine which employees, of those who worked

as Clerk-Word Processors, (or a comparable position) and were temporary

employees during the same time period as complainant, attained permanent

status.

In its request for reconsideration, the agency yet again contends

that it does not �convert� its employees from temporary employees to

permanent employees. Rather, the agency contends that it selects its

employees to positions through a competitive process, which is governed

by the agency's applicable collective bargaining agreement and initiated

by a vacant position announcement. The agency stated that there was no

evidence that any agency employee in temporary status was converted to

permanent status by operation of any agency rule or policy comparable

to those applicable to the competitive service during the applicable

time period. In response to the Commission's statement that the agency

�chose to narrowly construe the order of the decision so as not to award

complainant any relief,� the agency alleges that it did comply with

the Commission's Order as it made an unconditional offer to complainant

of placement in the position that she would have occupied but for the

discrimination, and that complainant accepted reinstatement to the

position of Clerk-Word Processor, SB-3, for the period of July 29,

1989 through January 29, 1990. The agency contends that it was not

obligated to offer complainant a permanent position when she claimed

that she was discriminatorily denied a six-month temporary position.

Complainant responded, urging denial of the agency's request.

In our initial decision in the instant complaint, we found that

relief provided under Title VII must be designed to make the victim of

discrimination "whole" by placing her "as near as may be, in the situation

she would have occupied if the wrong had not been committed." Albermarle

Paper Co. v. Moody, 442 U.S. 405, 418-419 (1975). It is established

Commission policy that remedial relief under Title VII includes placement

into the position which the complainant would likely have received

had she receive[d] the position directly in issue at the time of the

original selection. Further, the fact that the subsequent position would

have had to have been obtained through the competitive process is not

dispositive. See, e.g., Rai v. Department of the Interior, EEOC Request

No. 05880596 (August 12, 1988) (the discriminatory denial of a GS-14

position may entitle the complainant to placement in a GS-15 position);

Allen v. Department of Defense, EEOC request No. 05900807 (September

11, 1990) (the discriminatory denial of a GS-12 position may entitle

the complainant to placement in a GS-13 position); Ritchie v. United

States Postal Service, EEOC Appeal No. 01952558 (February 10, 1998)

(the discriminatory termination of a temporary employee may entitle the

employee to placement into a career position). As such, we ordered the

agency to determine full relief to complainant, as stated in our Order.

After a review of the agency'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 deny the request. The Commission finds

that the agency has made the same arguments regarding its refusal to

�convert� temporary employees to permanent positions in its request

for reconsideration which were made on appeal and rejected in our

prior decision. In our previous decision, we found that the agency

was found to be in violation of Title VII. Therefore, under the law,

the agency is required to make the complainant whole. As we found in our

prior decision, the agency's finding that complainant is entitled to no

relief because it does not "convert" temporary employees to permanent

employees does not make complainant whole. In addition, we again find

that the construction of the order by the agency is without support.

As we have previously stated, the agency failed to demonstrate by clear

and convincing evidence that complainant would not have been selected

for a permanent position during the period of July 29, 1989, through

January 29, 1990. As such, the decision in EEOC Appeal No. 01A02122

remains the Commission's final decision. There is no further right of

administrative appeal on the decision of the Commission on this request

for reconsideration.

ORDER (D0900)

The agency is ordered to take the following remedial action:

1. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall determine which employees, of those who worked

as Clerk-Word Processors, (or a comparable position) and were temporary

employees during the same time period as complainant, attained permanent

status. Of those employees identified, the agency shall further identify

the employee who attained permanent status first. That employee will

hereafter be known as the comparable employee;

2. Within fifteen (15) calendar days of the date the comparable employee

is identified, the agency shall offer complainant that placement in a

similar position for which complainant is qualified. Complainant shall

have ten (10) business days to accept or reject the agency's offer

of employment;

3. If complainant accepts the offer of employment, the agency shall use

the date the comparable

employee began as a permanent employee as the computation date and

retroactively reinstate

complainant. The position and subsequent back pay shall include all

eligible step and grade increases from the computation date to the

date the offer is accepted. If complainant declines the agency's offer

of employment, the agency shall pay complainant back pay, taking into

account all grade and step increases received by the comparable employee,

from the computation date to the date the offer is declined; and

4. Within sixty (60) calendar days of the date this decision becomes

final, the agency shall provide all managers who made decisions relevant

this complaint with a minimum of sixteen (16) hours of EEO training,

particularly on their responsibilities under the Title VII. The agency

shall further provide a minimum of eight (8) hours of remedial training

for all managers and supervisors located at the relevant facility to

ensure that acts of retaliation are not taken against any employee who

opposes unlawful discrimination, and that persons reporting instances

of alleged discrimination are treated in an appropriate manner.

The agency shall determine the appropriate amount of back pay (with

interest, if applicable) and other benefits due complainant, pursuant

to 29 C.F.R. 1614.501, no later than sixty (60) calendar days after the

date this decision becomes final. 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."

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.

POSTING ORDER (G0900)

The agency is ordered to post at its facility 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.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by 29

C.F.R. 1614.501(e)(1)(iii)), 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 (K0501)

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 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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint.

However, if you wish to file a civil action, you have the right to file

such action in an appropriate United States District Court within ninety

(90) calendar days from the date that you receive this decision. 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 17, 2003

__________________

Date

1 We note that complainant's separation from the agency occurred on

July 31, 1989. The agency argued on appeal and in the request for

reconsideration that complainant voluntarily severed her relationship with

the agency and thus was not eligible to apply for any permanent positions

as, once she voluntarily quit, she could not apply for the internal

vacancy announcements. Complainant contends that she was constructively

discharged. However, we held in our previous decision that the time to

have raised these issues had passed, and as such we would not address the

merits of either of these arguments. See 29 C.F.R. �� 1614.402, 1614.604.