07A10104
08-29-2002
Brian Kinnear, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Brian Kinnear v. Department of Commerce
07A10104
August 29, 2002
.
Brian Kinnear,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 07A10104
Agency No. 97-54-0351
Hearing No. 380-98-8175X
DECISION
Following its August 24, 2001 final order, the agency filed this timely
appeal, which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
In that final order, the agency declined to fully implement the EEOC
Administrative Judge's (AJ) decision finding discrimination in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Complainant alleged in his complaint that the agency unlawfully
discriminated against him on the basis of his age (fifty-four years
old at the time of the agency actions at issue) when, in May and June
1997, he was (1) not selected for the position of Fishery Biologist,
GS-0482-09/11/12, with the Sustainable Fisheries Program, Northwest
Region, National Marine Fisheries Service (NMFS), in Portland, Oregon,
and (2) he was not selected for the position of Fishery Biologist,
GS-0482-09/11, with the Environmental and Technical Services Division,
Northwest Region, NMFS, in Portland, Oregon. After a hearing on the
complaint, the AJ issued a decision finding no discrimination as to
claim (1), but finding age discrimination as to claim (2). The remedies
provided to complainant by the AJ included ordering the agency to appoint
complainant to a �Fisheries Biologist GS-9 position effective May 12,
1997,� with retroactive (back) pay and benefits from that date, and that
�[b]ack pay and interest on back pay� shall be calculated pursuant to
29 C.F.R. � 1614.501(a)(1) and 5 C.F.R. � 550.805.
In its final order, the agency declined to implement the portion of
the award regarding interest on back pay, asserting that �[b]ecause the
ADEA does not include a waiver of sovereign immunity, complainant is not
entitled to interest on his back pay.� The agency states that it did,
however, implement the remainder of the AJ's decision, and concurrently
filed the instant appeal concerning the issue of interest on back pay
under the ADEA. The agency does not expressly contest any other finding
or order by the AJ in this matter, and stated that it does not challenge
the AJ's finding of discrimination. Complainant has presented no argument
to the Commission on appeal.
The Commission has long recognized that interest on an award of back pay
is not available as a remedy available under the ADEA. Ryan v. Department
of Defense, EEOC Petition No. 04960005 (Nov. 7, 1996). Accordingly,
we agree with the agency's final order declining to implement the AJ's
award to complainant of interest on his award of back pay.
However, our examination of the record on appeal reveals that, despite
its claims to the contrary, the agency has not fully implemented in
its final order the remaining remedies ordered by the AJ. The remedial
order contained within the agency's final order contains an inconsistency
with the AJ's remedial order which extends beyond the back pay interest
issue addressed above. First, the AJ ordered the agency to �appoint the
complainant to the position of Fisheries Biologist GS-9 position effective
May 12, 1997, with retroactive pay and benefits to that date.� The agency
stated in its final order that, in an action unrelated to the instant
discrimination complaint, it had recently offered complainant a Fishery
Biologist GS-9 position, and therefore the AJ's position appointment order
had been rendered moot. The agency supplied documentation on appeal in
support of this assertion which shows that on August 1, 2001, two days
before the agency received the AJ's decision, complainant was offered
a Fishery Biologist, ZP-0482-III, position, in Sacramento, California.
The agency stated that this position �equates roughly� to a GS-13 level
position.
We note, however, that the position with respect to which complainant
was found to have been discriminated against in his nonselection
claim was located in Portland, Oregon, and not Sacramento, California.
The Commission's regulations require that, when an employee has been
found to have been discriminated against by the agency, �the agency
shall provide full relief which shall include the following elements
in appropriate circumstances . . . [a]n unconditional offer . . . of
placement in the position the person would have occupied but for the
discrimination suffered by that person, or a substantially equivalent
position.� 29 C.F.R. � 1614.501(a). A substantially equivalent position
is one that is similar in duties, responsibilities, and location to
the position for which complainant applied. Patterson v. Department of
Agriculture, EEOC Request No. 05940079 (Oct. 21, 1994). The burden of
proving substantial equivalency rests with the agency. Shaw v. Department
of the Air Force, EEOC Request No. 05930370 (July 15, 1994).
The Commission has recognized that, in some instances, a person cannot
be offered the originally sought position because it has been abolished
for nondiscriminatory reasons, or the functions of the position have
been relocated or consolidated with other duties. As stated above,
the Commission's regulations require that, in situations where an
agency has articulated a reasonable explanation for not offering the
aggrieved individual the position he or she originally sought, the
aggrieved individual must be awarded a substantially equivalent position.
Daly v. United States Postal Serv., EEOC Petition No. 04960011 (Jan. 16,
1997). In the instant matter, however, the agency has made no showing
that the circumstances exist under which it would be permitted to offer
complainant a position substantially equivalent to the position he
would have occupied but for the agency's discrimination, rather than
appointing complainant to the position he originally sought. Nor has
the agency shown that, even if it could show that the original position
sought by complainant could not be offered to him, that the Sacramento,
California Fishery Biologist position is substantially equivalent to
the Portland, Oregon Fisheries Biologist position. Accordingly, we find
that the agency's deviation from the AJ's remedial order on this issue
to have been in error.
The agency's final order also expanded upon the AJ's back pay order.
The agency provided in its final order that back pay and attendant
benefits would be paid to complainant for the period from May 12,
1997 through August 27, 2001, with the latter date identified by the
agency as �complainant's prospective entry-on-duty date.� However,
this prospective date pertains to the aforementioned nonconforming offer
of the Sacramento, California Fishery Biologist position, and therefore
that date has no bearing upon the calculation of the amount of back pay
to which complainant is entitled pursuant to the AJ's order.
We further note that the agency was ordered by the AJ to post for ninety
days a notice advising employees of the AJ's finding of discrimination
in this matter. However, the posting notice provision contained in the
agency's final order makes no reference to the duration of the posting,
and the agency has provided no reason or justification for this deviation
from the AJ's order. We find that the agency's deviation from the AJ's
remedial order on this issue to also have been in error.
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final order in part, to MODIFY the final order in part, and to REMAND
the matter to the agency to take corrective action in accordance with
this decision and the Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days of the date this decision becomes final,
the agency shall offer complainant the position of Fishery Biologist,
GS-0482-09/11, with the Environmental and Technical Services Division,
Northwest Region, NMFS, in Portland, Oregon, or a substantially
equivalent position in the Portland, Oregon area, with an effective
date of May 12, 1997. Complainant shall be given a minimum of fifteen
(15) days from receipt of the offer of placement within which to accept
or decline the offer. Failure to accept the offer within this time
period will be considered a rejection of the offer, unless complainant
can show that circumstances beyond his control prevented a response
within the time limit. Complainant shall also be awarded back pay,
seniority and other employee benefits from that date through the date
he accepts or rejects the agency's offer.
The agency shall determine the appropriate amount of back pay and other
benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no later than
sixty (60) calendar days after the date this decision becomes final.
The 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 the complainant for the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The 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.�
Within thirty (30) days of the date this decision becomes final,
complainant shall submit to the agency a request for reimbursement for
all costs to which he may be entitled under Federal law in connection
with this complaint. This is limited to copying and transportation
costs. The agency shall pay complainant for all such costs within thirty
(30) days of the date his timely request for reimbursement is submitted
to the agency.
Within a reasonable time from the date of its August 24, 2001, final
order, the agency shall provide complainant with all formal, informal,
and other training and job-enhancing benefits he would have received,
but for the agency's discrimination against him, from May 12, 1997 to
the date he accepts or rejects the agency's offer.
Within a reasonable time from the date of its August 24, 2001,
final order, the agency shall conduct EEO training for managers,
supervisors, and employees at the Portland, Oregon area NMFS to ensure
that they become aware and continue to be aware of their obligations,
responsibilities, and rights under EEO, including the right to work in
an environment free from age discrimination and the right to use the
EEO system to remedy perceived violations of EEO laws.
Within sixty (60) days of the date this decision becomes final,
the agency shall provide the Commission, at the address cited in the
statement below entitled �Implementation of the Commission's Decision,�
with supporting documentation showing that it is in full compliance
with the posting order, as described in paragraph (g) of section VII,
Remedies, of the AJ's July 13, 2001 decision. The documentation
submitted to the Commission shall include the original signed notice.
If the agency has not fully complied with the AJ's posting order by the
date this decision becomes final, the agency shall post the attached
posting order in the manner described in the statement below entitled
�Posting Order.�
The agency is further directed to submit a report of compliance,
as provided in the statement below 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 (G0900)
If by the date this decision becomes final the agency has not fully
complied with the posting order contained in paragraph (g) of section
VII, Remedies, of the AJ's July 13, 2001 decision, the agency is ordered
to post at its Portland, Oregon, facility copies of the attached Notice
to Employees (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 ninety (90) 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 (H0900)
If complainant 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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
August 29, 2002
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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq., has occurred at the United States
Department of Commerce's National Marine Fisheries Service, Northwest
Regional Office, in Portland, Oregon (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.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have violated the ADEA when, on May 12, 1997,
it failed to select an individual for a position at the facility based
upon that individual's age. The agency was ordered to: (1) offer the
aggrieved individual the position at issue; (2) pay the individual
back pay and other benefits; (3) reimburse the individual for copying
and transportation costs incurred in connection with the complaint of
discrimination; (4) provide the individual with all formal, informal,
and other training and job-enhancing benefits the individual would
have received had the individual been selected for the position at
issue; (5) provide equal employment opportunity sensitivity training
to management officials at the facility; (6) pay reasonable attorney's
fees, if applicable; and (7) post this notice.
The facility 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