05990328
03-16-2001
Robert Cummings, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Robert Cummings v. United States Air Force
05990328
March 16, 2001
.
Robert Cummings,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Request No. 05990328
Appeal No. 01972343
Agency No. RXOF94024
Hearing No. 110-96-8079
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Robert
Cummings v. United States Air Force, EEOC Appeal No. 01972343 (December
15, 1998). 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 complainant alleged that he was discriminated on the bases of
national origin (American Indian) and reprisal (prior EEO activity)
when he was performing at the GS-12 level since October, 1987, without
benefit of pay at that level. Following an investigation, complainant
requested a hearing which was conducted over a period of three days.
Following the hearing, an administrative judge (AJ) issued a recommended
decision finding discrimination. The agency rejected the AJ's recommended
findings and issued a decision finding no discrimination. Complainant
appealed to the Commission which reversed the Final Agency Decision
(FAD) and affirmed the AJ's finding of discrimination. The agency now
asks the Commission to reconsider its previous decision.<1>
After a review of the entire record and consideration of the agency's
request for reconsideration, the Commission does not find that the
agency met its burden in establishing that the appellate decision
involved a clearly erroneous interpretation of material fact or law.
Without addressing each argument raised on reconsideration, we note that
the agency largely reiterates arguments previously raised on appeal.
The agency also argues, inter alia, that the Commission made the faulty
determination that complainant had been performing GS-12 duties for
several years. The agency argues that complainant based his entire
claim of discrimination on the results of the classification audit
which indicated that he was doing a significant amount of GS-12 work.
We disagree with the agency's assessment. The record shows that he was
currently doing GS-12 level work as of the time of the audit. The audit
determined that complainant shared approximately one-third of the work
of the three employees in the unit and such work was randomly divided
up among the employees. There was no evidence in the record that such
method of dividing work assignments was new to the unit. Accordingly,
it is reasonable to find that complainant had been working under these
conditions for some time.
In addition, there was action taken by various management officials which
seemingly attempted to thwart complainant's promotion opportunities
without explanation. For example, despite having a good performance
record, various individuals characterized complainant's work as inferior.
There is also evidence in the record that various supervisors attempted to
delay or prevent complainant's request for a classification audit, without
explanation. Despite good performance reviews, complainant's second-line
supervisor attempted to rewrite the complainant's performance review
drafted by the first-line supervisor without sufficient justification.
Contrary to the agency, the record shows that complainant had been
qualified for promotion to a GS-12 position for years and despite
evidence in the record that complainant was doing a satisfactory job in
his position, his supervisors never took steps to promote complainant to
a GS-12 position, despite several openings over the years and promises
to do so. In fact, they seemingly went out of their way to keep him
at the GS-11 level without sufficient explanation. The AJ found the
evidence above, among other evidence, to indicate animosity toward
complainant. These factors, in addition to others, establish a basis
for finding that complainant was performing GS-12 work for years prior
to the classification audit. On reconsideration, the agency has not
shown this analysis to be erroneous.
The agency also argues, inter alia, that the Commission erroneously
agreed with the AJ in finding that complainant's co-workers' testimony was
tainted by the fact that they both worked for complainant's supervisors.
The agency argues that the AJ and Commission solely (and improperly)
relied on the fact that these witnesses worked for the responsible
management officials as a basis to discredit their testimony. We find
that the commission affirmed the AJ's assessment of the witnesses based
upon the totality of the evidence.<2> One co-worker strongly disliked
complainant. The other co-worker was allegedly the type to do almost
anything to avoid conflicts.<3> These factors, considered with other
aspects of the record (showing attempts by various management officials
to thwart complainant's opportunities for what seemed to be an easy
promotion based upon complainant's qualifications, performance reviews
and number of years at the GS-11 level), is sufficient to support the
conclusion that complainant's co-workers' testimony was tainted.
The agency also argues that the Commission failed to justify its failure
in relying upon complainant's former supervisor's testimony which stated
that complainant rarely worked on GS-12 level work without assistance
from his co-workers during the years he was complainant's supervisor.
As we noted above, the totality of the record indicates that complainant's
opportunities for promotion appeared thwarted in numerous ways over
the years, accordingly, the Commission and AJ were not erroneous in
disregarding a statement from complainant's former supervisor whose
recollection of past events appeared slightly diminished.
While the agency may have a different interpretation of the evidence
of record, we find the record sufficient to support the findings of
the Commission's previous decision, as well as the AJ's decision.
Based upon review of the entire record, we find that it was reasonable
for Commission and AJ to conclude that the agency's explanation on
multiple issues appeared illegitimate. Accordingly, various credibility
determinations were rendered in favor of the complainant.
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 decision
in EEOC Appeal No. 01972343 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 is directed to promote appellant to the position of
Materiels Engineer GS-0806-12, or a substantially similar position. Such
promotion shall be retroactive to March 1, 1993 (two years prior to
appellant's March 1, 1995 initial contact with the EEO Counselor).
2. The agency shall determine the appropriate amount of back
pay, 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. If appellant declines to accept a promotion
with the agency, the back pay period shall end on the date he declines the
offer of 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 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. 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."
3. Appellant shall be awarded attorneys fees as set forth below.
4. The agency shall take corrective, curative and preventive action to
ensure that national origin or reprisal discrimination does not recur,
including but not limited to providing training to the responsible
official(s) at the United States Air Force, Structures Technology Branch,
Materiels Analysis Team, Robins Air Force Base, Georgia facility in the
law against employment discrimination. Within thirty (30) calendar days
of the date the training is completed, the agency shall submit to the
compliance officer appropriate documentation evidencing completion of
such training.
5. 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 backpay 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 Structures Technology Branch,
Materiels Analysis Team, Robins Air Force Base, Georgia 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)), 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 (K0900)
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)(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 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:
March 16, 2001
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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 the Air Force, Structures Technology Branch, Materiels
Analysis Team, Robins Air Force Base, Georgia, (hereinafter �USAF�),
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The USAF has been found to have discriminated on the bases of National
Origin and reprisal for prior EEO activity when an American Indian
GS-0806-11 Materiels Engineer was performing GS12 level work and
denied the opportunity of promotion to GS-0806-12 Materiels Engineer.
The USAF has been ordered to: (1) retroactively promote the complainant
to GS-0806-12 to March 1, 1993; (2) issue an appropriate award of back
pay; (3) award reasonable attorneys fees; and (4) take corrective action
in the form of training for the responsible official(s). The USAF
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 USAF 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: _________________
1Multiple substantive decisions have been issued in this matter by the
agency, AJ and Commission. Accordingly, we shall refrain from providing
another lengthy restatement of the pertinent facts and issues herein.
See Cummings v. United States Air Force, EEOC Appeal No. 01972343
(December 15, 1998) for a recitation of the factual background of this
matter.
2 We note that the Commission reviews the AJ decision based upon a
substantial evidence standard. See EEOC Management Directive 110,
pp. 9-14, 9-15 (November 9, 1999).
3 In fact he asked to be transferred out of the unit due to animosity
between his two co-workers.