Vlinda Childs, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 27, 1999
05980427 (E.E.O.C. Jan. 27, 1999)

05980427

01-27-1999

Vlinda Childs, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Vlinda Childs v. Department of Veterans Affairs

05980427

January 27, 1999

Vlinda Childs, )

Appellant, )

) Request No. 05980427

v. ) Appeal No. 01961661

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

INTRODUCTION

On February 24, 1998, the Department of Veterans Affairs (hereinafter

referred to as the agency) initiated a request to the Equal Employment

Opportunity Commission (the Commission) to reconsider the decision

in Vlinda Childs v. Togo D. West, Jr., Acting Secretary, Department

of Veterans Affairs, EEOC Appeal No. 01961661 (February 5, 1998).

EEOC regulations provide that the Commissioners may, in their discretion,

reconsider any previous Commission decision. 29 C.F.R. �1614.407(a).

The party requesting reconsideration must submit written argument

or evidence which tends to establish one or more of the following

three criteria: new and material evidence is available that was

not readily available when the previous decision was issued, 29

C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation, or material fact, or a misapplication

of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of

such exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, the agency's

request is denied.

ISSUE PRESENTED

The issue presented herein is whether appellant proved, by a preponderance

of the evidence, that she was discriminated against on the bases of her

race (black) and sex (female) when she was not selected for the position

of Loan Guaranty Officer, GS-1174-14.

BACKGROUND

The previous decision accurately stated the procedural facts in this

matter and they will be repeated only as pertinent to our determination

below. Appellant filed a formal EEO complaint in September 1994,

raising the above-referenced allegation of discrimination. Following an

investigation and administrative hearing, an EEOC Administrative Judge

(AJ) issued a recommended decision, finding that appellant had been

subjected to race and sex discrimination with regard to her nonselection.

Specifically, the AJ determined that the agency's articulated reasons

were pretextual. In so finding, the AJ concluded that the testimony

of the selecting officials was not credible, citing a complete lack of

documentation and the selecting officials' inability to recall information

regarding the process. Further, the AJ stated that one of the selecting

officials appeared nervous, defensive, and distressed while testifying.

The AJ also found that the selectee was preselected for the position and

that appellant's qualifications were clearly superior. The previous

decision concurred with the AJ's findings, and reversed the agency's

final decision finding no discrimination.

In its request for reconsideration, the agency reiterated that the

selectee was more qualified for the position than appellant, based upon

his years of experience as a Loan Guaranty Officer at another facility.

Further, the agency indicated that the previous decision and the AJ erred

in relying upon a "highly successful" performance rating the selectee

received after the selection decision was made. The agency stated that,

prior to that time, the selectee's rating was "outstanding."

Appellant countered that the agency's request did not meet the criteria

for reconsideration.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration

submits written argument or evidence which tends to establish that

any of the criteria of 29 C.F.R. �1614.407(c) is met. In order for a

case to be reconsidered, the request must contain specific information

which meets the requirements of this regulation. It should be noted

that the Commission's scope of review on a request to reconsider is

limited. Lopez v. Department of the Air Force, EEOC Request No. 05890749

(September 28, 1989). After a careful review of the record herein, the

Commission finds that the agency's request meets none of the criteria

of 29 C.F.R. �1614.407(c).

As stated, the agency asserted that the selectee was the best qualified

candidate based upon his years of experience as a Loan Guaranty Officer.

The record, however, shows that the selectee worked at one of the smallest

Loan Guaranty Offices in the country, and, in fact, supervised fewer

employees than appellant. The record also indicates that appellant served

as Acting Loan Guaranty Officer. In addition, contrary to the agency's

contention, appellant's application shows that she had experience in

the various areas within the Loan Guaranty Office, and not just in Loan

Service and Claims. It is noted that the previous decision and the AJ

incorrectly indicated that the selectee had recently received a "highly

successful" performance rating. That evaluation was not completed

until after the selection decision was made, and the selectee had

previously received a rating of "Outstanding." Nevertheless, appellant

herself received an "Outstanding" rating for the period preceding the

selection. Appellant also distinguished herself by providing training

and assistance to other offices, and was appointed to the National Total

Quality Management Task Force to solve regional and national problems in

Loan Guaranty. It is further noted that appellant was offered a Loan

Guaranty Officer position in New Orleans, an office larger than that

at which the selectee worked, but was unable to relocate. As stated

by the AJ, there is no evidence in the record that the selectee had any

notable accomplishments outside of his regular job duties. Therefore,

we find that the AJ reasonably concluded that appellant's qualifications

were plainly superior.

The Commission also notes that the AJ discredited the selecting officials'

testimony regarding the rationale for the selection. The AJ correctly

stated that there was no written documentation of the selection process,

and that neither selecting official could recall details such as which

candidates were discussed and specific information regarding appellant's

and the selectee's qualifications. The AJ also found the testimony of one

of the selecting officials concerning his familiarity with the selectee's

experience to be suspect given that the official had not worked with the

selectee in more than 10 years and for a shorter period of time than he

had worked with appellant. As stated, the AJ found that official to be

nervous, defensive, and distressed while testifying. After reviewing

the record, the Commission finds that the evidence supports the AJ's

conclusions, as concurred with by the previous decision, and, therefore,

denies the agency's request for reconsideration.

CONCLUSION

After a review of the agency's request for reconsideration, appellant's

response thereto, the previous decision, and the entire record, the

Commission finds that the agency's request does not meet the criteria in

29 C.F.R. �1614.407(c). Therefore, it is the decision of the Commission

to deny the agency's request. The decision in EEOC Appeal No. 01961661

(February 5, 1998) remains the Commission's final decision. The agency

shall comply with the provisions of the Order set forth below. There is

no further right of administrative appeal on a decision of the Commission

on this Request for Reconsideration.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

1. In accordance with EEOC Regulation 29 C.F.R. �1614.501(c), appellant

shall be promoted to the position of Loan Guaranty Officer, GS-1174-14,

Target 15, to include career ladder grade promotions, retroactive to

the date in 1994 when she would have been promoted absent discrimination.

2. The agency shall determine the appropriate amount of backpay,

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. The appellant shall cooperate in the

agency's efforts to compute the amount of backpay and benefits due,

and shall provide all relevant information requested by the agency.

If there is a dispute regarding the exact amount of backpay 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."

3. The agency is directed to conduct training for those officials who

were found to have discriminated against appellant in regard to her

nonselection. The agency shall address these employees' responsibilities

with respect to eliminating discrimination in the Federal workplace

and all other supervisory and managerial responsibilities under equal

employment law.

4. 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 appellant,

including evidence that corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Denver, Colorado, Regional Office

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 (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.

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(c) (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.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil 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. 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.

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:

JAN 27, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat