0420120008
06-04-2013
Willie Stewart, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency-Agency.
Willie Stewart,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency-Agency.
Petition No. 0420120008
Request No. 0520070124
Agency Nos. H505-0547, DOT-7-03-2186
DECISION ON A PETITION FOR CLARIFICATION
On February 14, 2012, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for clarification to examine the enforcement of an Order set forth in Willie Stewart v. Department of Homeland Security, Request No. 0520070124 (November 14, 2011). The Commission accepts this petition for clarification pursuant to 29 C.F.R. � 1614.503.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Screener, SV-0019, at the Agency's facility at the Raleigh-Durham, North Carolina International Airport (RDU).
Complainant filed a complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American) and sex (male) when, on February 18, 2003, the Agency failed to select him for the position of Transportation Security Screening Manager, SV-1801-H, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Complainant appealed the Agency's final decision to the Commission, and in Request No. 0520070124, the Commission found that the Agency discriminated against Complainant on the basis of race when it failed to select him for the Transportation Security Screening Manager position.
In order to remedy the discrimination, the Commission ordered the Agency to offer Complainant the position of Transportation Security Screening Manager; pay Complainant appropriate back pay and benefits with interest; pay Complainant compensatory damages; provide 16 hours of EEO training to the responsible management officials; consider taking appropriate disciplinary action against the responsible management officials; ensure that all selecting or rating officials henceforth provide explanations for subjective scores and ratings during the course of EEO investigations; and post a notice of the finding of discrimination in the Agency's RDU facility. The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620120152 on November 16, 2011.
On February 14, 2012, the Agency submitted the petition for enforcement at issue. In its petition for clarification, the Agency requests that we clarify our remedial order with regard to the requirement that the Agency offer a Transportation Security Screening Manager position to Complainant. The Agency maintains that any retroactive appointment and back pay should be limited to the period from February 18, 2003, to January 14, 2004, because Complainant voluntarily resigned from the Agency on January 14, 2004. The Agency argues that when an employee voluntarily resigns after a discriminatory non-selection, absent evidence that he was constructively discharged, the employee is not entitled to reinstatement or back pay beyond the date of his resignation. The Agency notes that in a letter to the Agency dated January 14, 2004, Complainant stated that his reasons for resigning were of a "deeply personal nature, but rest assured that they are not related to dissatisfaction with my job, the company, or my co-workers."
EEOC Regulation 29 C.F.R. �1614.501 prescribes the remedial actions to be taken by an agency upon a finding of discrimination. The purpose of the remedial action is to make a person whole for discrimination suffered, by placing him "as near as may be, in the situation he would have occupied if the wrong had not been committed." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419 (1975).
Upon review of this matter, the Commission agrees that reinstatement is not an appropriate remedy for discriminatory non-promotion when a complainant subsequently resigns from the agency, and there is no finding that the complainant was constructively discharged. See Uyehara v. Dept. of the Navy, EEOC Appeal No. 01933721 (May 9, 1994); Horton v. Dept. of Transportation, EEOC Request No. 05880192 (July 5, 1988); Derr v. Gulf Oil Corp., 796 F.2d 340 (10th Cir. 1980). In this case, Complainant has not raised a constructive discharge allegation or made any argument in response to the Agency's petition for clarification. Therefore, we find that Complainant is not entitled to present reinstatement to the Agency.
Accordingly, the petition for clarification is GRANTED and paragraph one of the Commission's November 14, 2011, order is hereby amended as set forth in the Order below.
ORDER
To the extent it has not already done so, the Agency is ORDERED to undertake the following remedial actions:
1. The Agency is directed to immediately and retroactively promote Complainant to the position of Transportation Security Screening Manager, SV-1801-H, at Raleigh-Durham International Airport, for the period February 18, 2003, until January 14, 2004. Complainant shall be provided with all benefits and salary he would have received had he been a SV-1801-H Transportation Security Screening Manager during that period. Complainant is not entitled to present reinstatement to the Agency. Back pay shall also be computed from the period February 18, 2003, through January 14, 2004, in accordance with paragraph two of the Commission's November 14, 2011, order.
2. The Agency shall determine the appropriate amount of back pay with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. 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 Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. 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."
3. The issue of compensatory damages is REMANDED to the Agency. On remand, the Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance; Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable the EEOC determining the appropriate amount of damages within 150 calendar days after this decision becomes final.
4. The Agency shall provide each of the individuals responsible for this selection decision (selection panelists and the selection official) with at least 16 hours of training on their responsibilities, rights, and obligations under federal equal opportunity laws and regulations. The training must pay particular attention to the laws prohibiting race discrimination and management's duty to fully cooperate with EEO investigations.
5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials (selection panelists and selecting official). The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
6. The Agency shall ensure that in the course of conducting EEO investigations, selecting or rating officials provide an explanation for any subjective scores ratings given to candidates when scores/ratings are a factor in selections or promotions. The Agency shall also ensure that all decision-makers involved in the selecting process fully cooperate with the EEO investigation.
7. The Agency shall ensure that it conducts proper and adequate investigations that produce an impartial and appropriate actual record that allows a fact-finder to make findings on the claims raised by the formal complaint, in accordance with 29 C.F.R. � 1614(b) and MD-110.
8. The Agency shall post a notice of the finding of discrimination in accordance with the paragraph below.
9. To the extent it has not already done so, the Agency shall 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 back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Raleigh-Durham, North Carolina International Airport (RDU) 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K0610)
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 77960, Washington, DC 20013. 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 (P0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 4, 2013
Date
2
0420120008
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0420120008