The agency issued a final order purporting to fully implement the AJ’s order, including the ordered remedies. However, the agency determined that when complainant applied for the position, he only qualified at the GS-13 level. The agency determined that complainant, who was already a GS-13, would simply have retained his current grade and step. Further, the agency indicated that once the position was filled, it was decided that higher grade work was not available. Thus, no employees in similar positions were ever promoted to a GS-14 or a GS-15 through career ladder advancement, so that he was not entitled to back pay.
Further, the agency noted that the function of the position was eliminated in March 2002, and those positions were redeployed to a variety of places and positions of the same grade, while others were placed in Operations Specialist positions, which were “single graded” with no career ladder promotion potential. Therefore, the agency concluded that if complainant had been selected for the position he would now be an Operations Specialist at the GS-13 level.
On appeal, the Commission found that the agency failed to show that complainant was not entitled to a GS-14 position as a remedy in this case. Further, EEOC found that the selectee for the position was promoted from GS-13 to GS-14 when selected, and that nearly all of the selectees for the position were promoted as a result of their selection, mostly to the GS-14 and GS-15 levels. The Commission disagreed with the agency’s argument that placing complainant in a GS-14 position as a remedy would result in greater than make-whole relief. The Commission also disagreed with the agency’s contention that complainant’s eventual promotion to a GS-15 was speculative. EEOC found that the position contained a career ladder to this grade, and there was no evidence to suggest that complainant would not have been fully successful at the GS-14 level or would not have qualified for the GS-15 level upon completing any necessary training. The Commission found no documentary evidence to demonstrate how the GS-level qualifications were conducted for the position.
The Commission stated that it was incumbent upon the agency to make provision for the relief mandated by Title VII and the Rehabilitation Act in such a way as to effect restitution for the discrimination to which complainant had been subjected. Accordingly, EEOC ordered the agency to promote complainant retroactively to July 8, 1998, to an appropriate GS-14 position, with back pay and interest; and promote him retroactively to July 8, 1999, also with back pay and interest, to a GS-15 level. Mehta v. Department of Housing and Urban Development, EEOC Appeal No. 01A32842 (September 28, 2004), request for reconsideration denied, EEOC Request No. 05A50159 (December 13, 2004). Cf. Subia v. Department of Homeland Security, EEOC Appeal No. 01A41442 (June 22, 2004) (complainant entitled to the equitable remedy of front pay until the time the agency was able to offer complainant the position it had improperly denied him).