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