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.