01973964
10-14-1999
Richard R. Williams, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Richard R. Williams v. Department of Transportation
01973964
October 14, 1999
Richard R. Williams, )
Appellant, )
) Appeal No. 01973964
v. ) Agency No. 2-93-0384
)
Rodney E. Slater, )
Secretary, )
Department of Transportation )
(Federal Aviation Administration), )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal is accepted
by the Commission in accordance with the provisions of EEOC Order
No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the remedy provided in the agency's
final decision constitutes make-whole relief.
BACKGROUND
During the period in question, appellant was employed as a Quality
Assurance Specialist, GS-11, with the Department of the Navy.
In September 1992, appellant applied for one of six vacancies for the
position of Quality Assurance Specialist, GS-1901-9/11/12 (the Position).
The Position's vacancy announcement states that it had promotion potential
to the GS-13 level and that it was located "anywhere in the contiguous
United States." Appellant was found to be one of the "Best Qualified"
candidates for the Position at both the GS-9 and GS-11 levels, and he
was thereafter interviewed by telephone in early 1993. The individual
(the Responsible Official, RO) who interviewed appellant testified that,
because he was not impressed with either appellant's responses or his
application (SF-171), he decided not to grant him an in-person interview.
Consequently, appellant was not selected for the Position.
Appellant thereafter filed a formal complaint in July 1993 alleging
discrimination based on race (Black), color (black), and age (44) when
he was not selected for the Position. Following an investigation,
appellant requested an administrative hearing which was held before
an administrative judge (AJ) in June 1994. The AJ thereafter issued
a recommended decision (RD) finding no discrimination. The agency
subsequently issued a final decision adopting the RD. Appellant
appealed and the Commission issued a decision in April 1996 vacating the
final decision. Williams v. Department of Transportation, EEOC Appeal
No. 01950795 (April 18, 1996). Specifically, the decision found that,
although the RO testified that he had considered appellant's SF-171,
the record did not contain copies of the applicants' SF-171s. For that
reason, the decision ordered the agency to supplement the record with a
complete copy of the selection package used for the Position, including
the SF-171s of appellant and the other "Best Qualified" applicants.
During the supplemental investigation, the agency determined that
the SF-171s for the Position had been destroyed in September 1994.
The agency thereafter issued a final decision (FAD) in March 1997 in
which it inferred that the destruction of the SF-171s had been in bad
faith. The FAD found that, because the destruction of these records
prevented appellant from making a showing of pretext, it was appropriate
to draw an adverse inference against the agency. In this regard, the
FAD states:
Accordingly, based on the inference that if the bid packages had been
produced they would have supported [appellant's] claim that he had not
been given proper consideration for the [P]osition and that he would
have been selected if he had been considered, [appellant] has met his
burden of demonstrating pretext.
Based on this, the FAD concluded that appellant had met his burden of
establishing race discrimination.<0> As relief, the FAD ordered the
agency to give appellant priority consideration for the next available
Quality Assurance Specialist position and pay him attorney's fees.
On appeal, appellant contends that the FAD's finding of discrimination
entitles him to both retroactive reinstatement into the Position and
back pay. Conversely, the agency argues that the relief provided in
the FAD is appropriate because appellant, in effect, did not establish
discrimination. Specifically, the agency argues that the SF-171s,
although destroyed, are irrelevant because the RO testified that he
based his decision not to consider appellant on his interview responses.
The agency argues that, for this reason and because the RO testified that
he was unaware of appellant's race, color, or age, it has demonstrated
that appellant was not discriminated against. Regarding the adverse
inference, the agency argues that the missing files were not destroyed
in bad faith and that the inference should be viewed as a sanction rather
than as a basis for finding that appellant met his burden of establishing
discrimination.
ANALYSIS AND FINDINGS
When discrimination is found, an agency must provide a complainant with an
equitable remedy that constitutes full, make-whole relief to restore him
to the position he would have occupied absent the discrimination. See,
e.g., Franks v. Bowman Transportation Co., 424 U. S. 747, 764 (1976).
Accordingly, the issue before us is whether the agency has provided
make-whole relief to appellant.
The regulations at 29 C.F.R. Part 1614 provide that, when an applicant for
employment has been discriminated against, full relief includes an award
of back pay and an unconditional offer to the individual of placement
into the position (or a substantially equivalent position) he/she would
have occupied but for the discrimination. 29 C.F.R. �1614.501(a)(3)-(4).
In this case, the FAD found that, based on the adverse inference,
appellant had established that his non-selection for the Position was
discriminatory. Moreover, the FAD interpreted this inference to mean
that if the bid packages had been produced they would have supported
appellant's claim "that he had not been given proper consideration for
the [P]osition and that he would have been selected if he had been
considered." Based on the foregoing, the Commission finds that the
appropriate relief for appellant is an offer of retroactive placement into
the Position and an award of back pay. Accordingly, it is the decision
of the Commission to modify the FAD on the question of the relief.
CONCLUSION
It is the decision of the Commission to MODIFY the FAD on the question
of the relief to which appellant is entitled.
ORDER
The agency is ordered to take the following remedial actions:
(1) The agency shall offer appellant placement into the position of
Quality Assurance Specialist, GS-1910-9/11/12, with promotion potential
to the GS-13 level, or a substantially equivalent position, retroactive
to the date on which he would have started in that position had he not
been discriminated against. This offer shall include an award of back
pay, with interest, and other benefits appellant would have received.
The agency shall accomplish this action within sixty (60) calendar days
of the date this decision becomes final.
(2) The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. 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 benefits, the
agency shall issue a check to the appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. The 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, 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 appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Baltimore, Maryland, 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.
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 (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.
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.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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 (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:
Oct. 14, 1999
DATE Carlton M. Hadden, Acting 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 seq., 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 Department of Transportation, Federal Aviation Administration,
Baltimore, Maryland 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 Department of Transportation, Federal Aviation Administration,
Baltimore, Maryland facility, has been found to have discriminated against
an employee by not selecting him for a position and has been ordered
to offer the employee retroactive placement into the position with an
award of back pay. The Department of Transportation, Federal Aviation
Administration, Baltimore, Maryland 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 and will not retaliate against employees who file EEO complaints.
The Department of Transportation, Federal Aviation Administration,
Baltimore, Maryland 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
01 The FAD found that appellant had not established age or color
discrimination, apparently because he testified that his application
did not identify these bases and because the RO testified that he was
unaware of either appellant's age or color.
Although the RO testified that he was unaware of appellant's race, the
FAD, in finding race discrimination, appears to have credited appellant's
testimony that he identified his race on his SF-171.