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.