EEOC Appeal No. 0120162429
06-28-2018
Timothy M. v. Dep't of the Navy
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Timothy M.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120162429
Hearing No. 430-2014-00177X
Agency No. 136592301208
DECISION
On July 13, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 8, 2016, final order (FO) concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Agency's FAD is AFFIRMED in part, and MODIFIED in part. The complaint is REMANDED for compliance.
ISSUE PRESENTED
Whether the EEOC AJ properly determine relief after she entered default judgment against the Agency for Complainant's allegation that he was subjected to race and sex discrimination when he was not selected for a position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Industrial Engineering Technician at the Agency's Fleet Readiness Center East in Cherry Point, North Carolina. On June 28, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when he was not selected for an Industrial Engineering Technician position, GS-11, NTE 5 years.
At the conclusion of the investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The complaint of discriminatory non-selection was consolidated with another complaint, Agency No. DON-13-65923-01208. Over the Agency's objections, the AJ assigned to the case granted Complainant's April 9, 2014 motion for sanctions and entered a finding of default judgement against the Agency on September 23, 2015 for both complaints. However, the AJ did not award Complainant remedies for the non-selection allegation on the grounds that Complainant did not request relief. The Agency subsequently issued the FO fully implementing the AJ's finding that Complainant proved that the Agency subjected him to the alleged discrimination, and awarded him relief for the harassment allegation. 2 Complainant appealed seeking relief for his claim of discriminatory non-selection.
CONTENTIONS ON APPEAL
I. Complainant's Contentions on Appeal
Complainant contends that the untimely filing of his appeal should be excused because the AJ did not provide him with full relief for the default judgment entered against the Agency.
Complainant explained that the AJ issued an order granting his motion for sanctions, but that it only listed his harassment case (Agency No. DON-13-65923-01208). As a result, Complainant explained that he only requested remedies for his harassment case. However, when he received the AJ's final decision the AJ cited both his harassment case and his non-selection case (DON-13-65932-02170), entering a finding of default judgment against the Agency. Complainant seeks full relief for prevailing in the non-selection case.
II. Agency's Contentions on Appeal
The Agency contends that Complainant's appeal is untimely filed and that it should be dismissed. Further, the Agency asks for Complainant to be sanctioned because he falsely stated that he hand-delivered his appeal to the Agency on July 13, 2016, and Complainant did not provide the Agency with a copy of his appeal at the same time he filed with the Commission.
STANDARD OF REVIEW
The Agency's final action is reviewed de novo. 29 C.F.R. � 1614.405(a).
ANALYSIS AND FINDINGS
At the outset, we find that Complainant's appeal was filed on July 13, 2016 making it two days late. The Commission, however, finds that it is appropriate to exercise its discretion, pursuant to 29 C.F.R. � 1614.604(c), to correct an error by the AJ.
As was noted above, the AJ determined that Complainant was entitled to default judgment for his non-selection case, however, the AJ did not award Complainant relief for the discriminatory non-selection. When discrimination is found, the complainant must be provided with a remedy that constitutes full, make-whole, relief to restore him or her as nearly as possible to the position he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994).
In a default judgment case such as the instant matter, complainants may be entitled to remedies, including reinstatement, if they establish their right to relief by "evidence that satisfies the court." Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005). For example, the establishment of the elements of a prima facie case of discrimination would be sufficient to establish such a right. Cox v. Social Security Admin., EEOC Appeal No. 0720050055 (Dec. 24, 2009); Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009).
Here, Complainant must show the following in order to establish a prima facie case of race discrimination: (i) that he belongs to a protected class; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Complainant established his individual right to relief because he established a prima facie case of race discrimination. Complainant belongs to a protected class by virtue of being African American. Complainant applied, and was qualified, for an Industrial Engineering Technician position (GS-11) and was not selected. The selectees for the position were of a different racial group than Complainant.
The AJ found that Complainant was subjected to discrimination when he was not selected for an Industrial Engineering Technician (GS-11) position by a default judgment against the Agency; however, while the AJ awarded relief for Complainant's harassment allegation, she did not award relief for Complainant's non-selection allegation. Therefore, we find that Complainant is entitled to make-whole relief for his discriminatory non-selection to an Industrial Engineering Technician position. The AJ was incorrect not to award relief simply because Complainant did not make a specific request.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FO which fully implemented an EEOC AJ's decision issuing default judgment against the Agency along with awarding remedies, is AFFIRMED in part and MODIFIED in part. The part of the Agency's FO which implemented the AJ's finding of discrimination on both Complainant's harassment complaint and his non-selection complaint is AFFIRMED, however, the AJ's order for relief relating to Complainant's non-selection allegation is MODIFIED. The complaint is REMANDED for compliance with this decision and the Order below.
ORDER (C0610)
Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ordered to take the following remedial action, to the extent that it has not already done so:
1. The Agency shall offer Complainant an Industrial Engineering Technician (GS-11), NTE 5 years, position, or a similar position, retroactive to April 11, 2013.
2. The Agency shall award Complainant the appropriate amount of back pay, interest, and other benefits pursuant to 29 C.F.R. � 1614.501(c), which was lost as a result of Complainant's non-selection. 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. 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."
3. Conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer as referenced below.
4. Provide training to the Agency personnel responsible for the discrimination placing special emphasis on an employer's obligation to not engage in race discrimination during hiring.
5. Post at the Fleet Readiness Center East in Cherry Point, North Carolina, copies of the notice discussed below.
6. The Agency shall consider taking appropriate disciplinary action against the Agency officials involved in the discrimination. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).3
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 verifying that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Fleet Readiness Center East in Cherry Point, North Carolina, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 the date this decision was issued. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___6/28/18_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant's harassment complaint, Agency No. DON-13-65923-01208, will not be addressed because the AJ awarded Complainant remedies for prevailing on this complaint.
3 The Agency is also ordered to comply with the AJ's order for relief in Complainant's harassment case, to the extent that it has not already done so. The AJ's order included: $2,000 in compensatory damages; reimbursement for counseling sessions Complainant took between February 2012 and January 2013; reimbursement of leave; and posting a notice of a finding of discrimination.
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