05A20505
03-24-2004
Walter Michael Hill, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Walter Michael Hill v. Department of Agriculture
05A20505
March 24, 2004
.
Walter Michael Hill,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A20505
Appeal No. 07A00041
Agency No. 970204
Hearing No. 100-98-8045X
DENIAL OF REQUEST FOR RECONSIDERATION
On March 29, 2002, complainant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Walter
Michael Hill v. Department of Agriculture, EEOC Appeal No. 07A00041
(February 26, 2002). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. � 1614.405(b). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or more
of the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Id. For the reasons set forth herein, complainant's request
is denied.
In his formal complaint, complainant alleged that he was discriminated
against on the bases of his race/national origin (Native American), color
(light/white), and sex (male) when the agency selected an individual
(Selectee) for the position of Deputy Administrator, Farm Loan Programs
in the Farm Service Agency (FSA) based on her race (African American)
and sex (female). An EEOC Administrative Judge held a hearing and issued
a decision finding that the agency engaged in unlawful discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., when it selected Selectee for
the position. The Administrative Judge concluded that there was direct
evidence of discrimination based on the testimony of the FSA's then
Administrator. The Administrative Judge found this direct evidence to be
corroborated by the fact that Selectee was not qualified for the position
and that the agency circumvented the Office of Personnel Management's
(OPM) regulations in order to place Selectee in the position.
The Administrative Judge then concluded that the evidence did not support
a finding that absent the discrimination, the agency would have selected
complainant, who was then Assistant to the Deputy Administrator, for
the position. In reaching this conclusion, the Administrative Judge
relied on the testimony of the FSA's then Administrator, establishing
that the successful candidate for the position of Deputy Administrator
was not going to come from within the FSA. Complainant was an employee
of the FSA, and consistent with the FSA's then Administrator's testimony,
he was not among the individuals who were considered for the position.
Because complainant proved that the selection of Selectee was
unlawfully motivated, the Administrative Judge ordered the agency
to post and electronically submit a notice, provide training to its
management officials, and pay complainant attorney's fees and costs.
The Administrative Judge noted that in May 1998 the agency advertised
the position at issue for competitive selection, thereby correcting the
illegal placement of Selectee.
The agency declined to implement the Administrative Judge's decision and
filed an appeal. Complainant cross-appealed. The previous decision found
that complainant had established that there was no evidence that, absent
the discrimination, Selectee would have been selected and that complainant
had proven that discrimination was the sole motive for Selectee's
selection. The previous decision therefore held that complainant was
eligible to be considered for the full range of available remedies,
set forth at 29 C.F.R. � 1614.501, see Revised Enforcement Guidance
on Recent Developments in Disparate Treatment Theory, (July 14, 1992)
at Section III. However, the previous decision found that complainant,
on appeal, failed to raise the issues of promotion with back pay and
compensatory damages. In exercising our discretion to review only the
issues specifically raised on appeal, the Commission declined to consider
what, if any, additional relief was appropriate. EEO MD-110, 9-10.
On request for reconsideration, complainant claims that in a Brief
in Support of Appeal dated October 2, 2000, he did raise the issues of
promotion with back pay and compensatory damages. The Brief in Support of
Appeal was not in the record at the time the previous decision was issued.
To correct that error, we now consider the claim for additional relief
raised in the Brief in Support of Appeal.
The previous decision found the agency liable for discrimination because
in selecting Selectee, the agency engaged in an unlawful employment
practice. 42 U.S.C. � 2000e-2(m). Complainant brought this unlawful
employment practice to the Commission's attention and contends, as a
result, that in addition to the relief awarded by the Administrative
Judge, he is entitled to a promotion with back pay and compensatory
damages. The relief provisions of Title VII, which are intended to
remedy an individual who was harmed by an unlawful employment practice,
are set forth at 42 U.S.C. � 2000e-5(g).
Upon review, we discern no reason to disturb the Administrative
Judge's factual finding that complainant would not have been selected
for the position at issue even absent the discrimination because
it is supported by substantial evidence in the record. 29 C.F.R. �
1614.405(a). In reaching his conclusion, the Administrative Judge
relied on the aforementioned testimony of the FSA's then Administrator.
Complainant argues that this testimony is not reliable because the FSA's
then Administrator was not the �decision maker.� However, complainant,
who argued that this individual's testimony was reliable when it concerned
the selection of Selectee, has failed to establish why this testimony
is not reliable concerning the probability of his own selection.
Accordingly, we find that complainant is not entitled to individual relief
because of the agency's selection of Selectee. The agency has proven,
by a preponderance of the evidence, that complainant would have been
denied the position because of the internal nature of his candidacy and
that the agency would have not selected him even in the absence of the
impermissible motivating factors that motivated Selectee's selection.
42 U.S.C. � 2000e-5(g)(2)(A) prohibits the Commission from promoting or
granting back pay to an individual if such an individual was refused
the position for any reason other than discrimination on account of
race, color, religion, sex, or national origin or in violation of
� 2000e-3(a). The record clearly establishes that no incumbent of
the FSA was considered for the position and contains no evidence that
a proscribed basis motivated the decision to exclude incumbents from
consideration. Therefore, the Administrative Judge's findings are
supported by substantial evidence.
Accordingly, we find that the relief due is limited to declaratory
relief and attorney's fees and costs. 42 U.S.C. � 2000e-5(g)(2)(B).
We decline to award complainant the additional relief to which he argued
he was entitled in his Brief in Support of Appeal.
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the request. The decision of the
Commission in Appeal No. 07A00041 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a Request to Reconsider. The agency is directed to
take corrective action in accordance with the Order below.
ORDER
1. The agency shall provide at least three hours of training in the
obligations and duties imposed by Title VII to each supervisor and
manager in the Washington, DC offices of the Farm Service Agency, to
include those supervisors and managers involved in the instant matter
if they remain employed by the agency, whether or not they continue to
work in the Washington, DC offices.
2. Within thirty days from the date this decision becomes final, the
agency shall post the attached Notice at the Washington, DC offices for
ninety consecutive days, informing all employees of their right to work
in an environment free of illegal discrimination, assuring all employees
that the discrimination at issue in the instant complaint will not recur,
and informing all employees that they have the right to oppose unlawful
employment practices. In addition to posting the Notice, within thirty
days from the date this decision becomes final, the agency shall transmit
it electronically to all the employees of the Washington, DC offices
and to any managers and supervisors involved in the instant matter who
are employed by the agency at another facility.
3. The agency shall tender to complainant $56,509.00 in attorney's fees
and $4,169.18 in costs.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 within ninety (90) calendar days from the date that you receive
this decision. 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 (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
March 24, 2004
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at the agency's Farm
Service Agency in Washington, DC (hereinafter this facility).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have violated Title VII by impermissibly
considering race and sex in a selection. The facility was ordered to
provide training to managers and to pay reasonable attorney's fees and
costs to the employee who brought this unlawful employment practice to
the attention of the Commission.
This facility will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all federal equal employment opportunity laws and will
not retaliate against employees who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614