Travis Fields, Complainant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionAug 15, 2000
01987000 (E.E.O.C. Aug. 15, 2000)

01987000

08-15-2000

Travis Fields, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.


Travis Fields v. Housing and Urban Development

01987000

August 15, 2000

.

Travis Fields,

Complainant,

v.

Andrew M. Cuomo,

Secretary,

Department of Housing and Urban Development,

Agency.

Appeal No. 01987000

Agency No. FW-96-14

Hearing No. 310-97-5521X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) complaint of unlawful

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.<1>

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405). Complainant alleges he was

discriminated against on the basis of race (Black) and in retaliation

for prior EEO activity when he was not selected for the position of

Chief, Asset Management Branch, GS-13. For the following reasons,

the Commission reverses the agency's final decision.

BACKGROUND

The record reveals that during the relevant time, complainant, a

Supervisory Loan Specialist at the agency's Tulsa, Oklahoma facility,

filed a formal EEO complaint with the agency on February 9, 1996, alleging

that the agency had discriminated against him as referenced above. At the

conclusion of the agency's investigation of the complaint, complainant

was provided a copy of the investigative report and requested a hearing

before an EEOC Administrative Judge (AJ). Following a hearing, the AJ

issued a decision finding discrimination.

The AJ concluded that complainant established a prima facie case of

race discrimination regarding his non-selection for the position

because he was qualified for the position but was not selected in

favor of the selectee, an individual outside his protected class.

The AJ also concluded that complainant established a prima facie case

of retaliation in that the Selecting Official was aware, during the

time of her selection decision, of complainant's recent participation

protected EEO activity. The AJ then concluded that the agency articulated

legitimate, nondiscriminatory reasons for its actions. Specifically,

the AJ found that the Selecting Official stated that the selectee best fit

the criteria for the position in question. The AJ further concluded that

complainant established that more likely than not, the reasons provided by

the agency were a pretext for discrimination or retaliation. In reaching

this conclusion, the AJ found that: (1) complainant's qualifications

were superior to the selectee's, because he had spent five years in a

supervisory position in the department and during that time period,

he trained the selectee, who had minimal supervisory experience;

(2) the criteria which the Selecting Official stated that she relied

upon did not appear to be important or significant to the position;

(3) contrary to the Selecting Official's assertions, the witnesses at

the hearing unanimously testified that complainant was better able to

lead and motivate the employees in the department; and (4) contrary

to the Selecting Official's unsupported assertions, complainant's past

evaluations indicated outstanding performance. Overall, the AJ found

that the Selecting Official deliberately manipulated and selected the

criteria which favored the selectee and disfavored complainant.

The agency's final decision rejected the AJ's decision, finding that while

the selection was inappropriate, it was not discriminatory in that the

Selecting Official made her selection based on favoritism and not racial

or reprisal discrimination. On appeal, complainant restates arguments

previously made at the hearing. The agency responds by restating the

position it took in its FAD, and requests that we affirm its FAD.

ANALYSIS

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ will be

upheld if supported by substantial evidence in the record. Substantial

evidence is defined as �such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.� Universal Camera

Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

In reviewing the record, the Commission finds that the AJ's decision

summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We discern no basis to disturb

the AJ's decision. Therefore, after a careful review of the record,

including complainant's arguments on appeal, the agency's response, and

arguments and evidence not specifically discussed in this decision, the

Commission REVERSES the agency's final decision and REMANDS the matter

to the agency to take remedial actions in accordance with this decision

and the ORDER below.

ORDER

The agency is ORDERED to take the following remedial action:

Within thirty (30) days of the date this decision becomes final,

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."

Within a reasonable period of time, the agency is directed to conduct

EEO training (with emphasis on race and reprisal discrimination)

for the management staff at its Tulsa, Oklahoma facility. The agency

shall address management's responsibilities with respect to eliminating

discrimination in the workplace and all other supervisory and managerial

responsibilities under the federal equal employment opportunity laws

enforced by the Commission.

The issue of compensatory damages is REMANDED to the Hearings Unit of the

Dallas District Office.<2> Thereafter, the Administrative Judge shall

issue a decision in accordance with 64 Fed. Reg. 37,644, 37,657 (1999)

(to be codified at 29 C.F.R. � 1614.109), and the agency shall issue

a final action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999)

(to be codified at 29 C.F.R. � 1614.110) within forty (40) days of receipt

of the Administrative Judge's decision. The agency shall submit copies

of the Administrative Judge's decision and the final agency action to

the Compliance Officer at the address set forth below.

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 evidence that the corrective action

has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Tulsa, Oklahoma 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 (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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

August 15, 2000

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 While the AJ made what appears to be a non-pecuniary damages award of

$1,000.00, the decision does not provide the proper foundation for the

award. We direct the AJ to allow complainant the opportunity to present

evidence in support of his compensatory damages claim and to render a

decision clearly addressing the issues of pecuniary and non-pecuniary

damages.