07A10028
08-14-2002
Keith R. Brooks and Orlando V. Jackson Complainants, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Keith R. Brooks and Orlando V. Jackson v. Department of the Treasury
07A10027; 07A10052; 07A10028; 07A10051; 01A12425
August 14, 2002
.
Keith R. Brooks and Orlando V. Jackson
Complainants,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal Numbers 07A10027; 07A10052; 07A10028; 07A10051; 01A12425
Agency Numbers TD 98-3077; TD 98-3076; TD 99-3258
Hearing Numbers 160-98-8492X; 160-98-8493X
DECISION
The Commission accepts and consolidates these appeals pursuant to
29 C.F.R. � 1614.405. Complainants filed equal employment opportunity
(EEO) complaints alleging that they were denied promotion to GS-1890-11
Senior Customs Inspector positions in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Specifically, these complaints arose when:
(TD 98-3077) Complainant Brooks alleged that the agency discriminated
against him on the bases of his race (Black) and sex (male) in connection
with the Senior Customs Inspector positions advertised on March 19,
1997, under vacancy announcement MDAME/97-015DMN;
(TD 98-3076) Complainant Jackson alleged that the agency discriminated
against him on the bases of his race (Black) and sex (male) in connection
with the Senior Customs Inspector positions advertised on March 19,
1997, under vacancy announcement MDAME/97-015DMN; and
(TD 99-3258) Complainant Jackson alleged that the agency discriminated
against him on the bases of his race (Black), color (black), sex (male)
and reprisal for protected activity (protected by unspecified statute)
in connection with the Senior Customs Inspector positions advertised
on February 18, 1998 and September 21, 1998, under vacancy announcements
MDAME/98-006SAB and AN81890 respectively.
At the relevant time, complainants were GS-1890-09 Customs Inspectors
assigned to the Lester G. Pearson International Airport in Toronto,
Canada. Complainants applied, but were not selected for promotion to
GS-1890-11 Senior Customs Inspector positions after which they filed
complaints of discrimination as specified above. The agency investigated
the complaints TD 98-3077 and TD 98-3076 but dismissed complaint TD
99-3258 as untimely.<1>
Following the investigation of complaints TD 98-3077 and TD 98-3076,
complainants requested hearings before an EEOC Administrative Judge.
The Administrative Judge concluded that TD 99-3258 was timely filed and,
after a consolidated hearing, issued a decision finding discrimination
with respect to complaints TD 98-3077 and TD 99-3258. The Administrative
Judge found no discrimination with respect to complaint TD 98-3076.
The agency issued final orders refusing to implement the Administrative
Judge's findings of discrimination with respect to TD 98-3077 and TD
99-3258, filing appeals docketed as EEOC Appeal Numbers 07A10027 and
07A10028.
This appeal does not address complaint TD 98-3076 because Complainant
Jackson did not appeal the agency's implementation of the Administrative
Judge's finding of discrimination in that complaint.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
In the absence of direct evidence a claim of disparate treatment is
examined under the three-part analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to
prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration
was a factor in the adverse employment action. McDonnell Douglas,
411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978). The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reasons for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met
its burden, complainant bears the ultimate responsibility to persuade the
fact finder by a preponderance of the evidence that the agency acted on
the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993). Notably, a prima facie case, combined with sufficient
evidence to find that the agency's asserted justification is false,
may permit the trier of fact to conclude that the employer unlawfully
discriminated. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
148 (2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 524
(1993)).
TD 98-3077
The record reveals that on March 19, 1997, the agency posted vacancy
announcement MDAME/97-015DMN for the position of GS-11 Senior Customs
Inspector, to fill one or more positions as vacancies occurred,
for Canadian Preclearance locations in Montreal, Toronto, Calgary,
Edmonton, Vancouver, Winnipeg, and Ottawa. A three person ranking panel
was convened. Panel members ranked the applications individually.
The scores were averaged and candidates were ranked on the basis of
their average score. The top scorers made the Best Qualified (BQ)
list which was given to the Area Port Director (APD: White, male)
for Canada Preclearance who made all of the selections at issue in
the instant appeals. Complainant Brooks made the BQ list but was not
selected for any of the six available positions.
The agency concedes that Complainant Brooks established a prima facie
case of discrimination because at least one of the six selectees was not a
member of Complainant Brooks' protected classes. Through his testimony,
APD advanced several non-discriminatory reasons for failing to select
Complainant Brooks including that: he received negative references;
he was �just going through the motions;� he did not have the respect
of others; based upon APD's personal observation, he was unimpressive;
he received negative reviews from two officials with whom APD consulted
during the selection process; and he did not have a high enough rating
on the BQ list. The agency suggests that the Administrative Judge erred
in failing to consider all of the reasons given by APD in explaining
Complainant Brook's non-selection. The agency further argues that the
Administrative Judge erred in failing to give proper consideration to
APD's explanations.
The Administrative Judge found APD's reasons unworthy of credence.
Since the veracity of APD's explanations is entirely a matter of fact,
we will not disrupt the Administrative Judge's findings unless they (the
factual findings) are against the substantial weight of the evidence.
On appeal, the agency has failed to meet its burden of showing that
the Administrative Judge's factual findings are against the substantial
weight of the evidence. The Administrative Judge's finding that APD's
explanations are unworthy of credence is supported by evidence of
Complainant Brooks' outstanding performance appraisals, the inability
of APD to provide corroborating evidence from the two officials with
whom he consulted during the selection process, the inability of APD to
identify the personal experience he had with Complainant Brooks which
influenced his decision, and the inability of APD to articulate the
basis of his belief that Complainant Brooks was an employee who �was
just going through the motions.�
On appeal, the agency insists that APD simply started from the top of the
BQ list and moved down and that Complainant Brooks' non-selection was
simply attributable to his rank on the BQ list. But, this explanation
is indeed unworthy of belief. The record does not support the agency's
assertion that APD made his selections in rank order, in fact, the most
highly ranked candidate on the BQ list was not offered a position and
another highly ranked Black candidate was non-selected in favor of a
less highly ranked candidate. We therefore affirm the Administrative
Judge's factual findings with regard to TD 98-3077 because they are
supported by substantial evidence in the record.
TD 99-3258<2>
On September 21, 1998, the agency posted vacancy announcement AN81890
for the position of GS-11 Senior Customs Inspector, to fill one or more
positions as vacancies occurred for Canadian Preclearance locations in
Montreal, Vancouver, Toronto, Edmonton, Winnipeg, Ottawa, and Calgary.
Complainant Jackson applied for positions in three locations: Ottawa,
Toronto, and Vancouver. In addition to the BQ list, which was produced
in the same manner as described above, APD also solicited candidates
using a Reassignment Opportunity Notice for Senior Customs Inspectors
(Reassignment List) and an Alternate Staffing List.
The agency concedes that Complainant Jackson has made a prima facie
case with respect to his non-selection. In finding that the agency
discriminated against complaint with respect to filling positions in
Ottawa, Toronto, and Vancouver, the Administrative Judge relied on
her determination that the explanations given by APD were unworthy of
credence. As previously mentioned, the Administrative Judge's factual
finding that APD's reasons are unworthy of belief will only be overturned
on appeal if the agency can show that the factual findings are against
the substantial weight of the evidence. The agency has failed to meet
this burden.
We turn first to the Vancouver position. APD selected five candidates
to fill Senior Customs Inspector positions in Vancouver. Complainant
was the 5th most highly rated candidate on the Vancouver BQ list.
However, APD made the selections from the Reassignment List, as
opposed to the BQ list because, according to APD, the Reassignment List
contained applicants who were already GS-11 Senior Customs Inspectors.
APD testified that these candidates were the best qualified to fill the
vacancies, ostensibly because of their experience. Regarding the vacancy
in Ottawa, the record reveals that Complainant Jackson was the 2nd most
highly rated candidate on the BQ list. However, APD did not select a
candidate for the Ottawa vacancy. Regarding the vacancy in Toronto,
the record reveals that Complainant Jackson was the 2nd most qualified
candidate on the Toronto BQ list. However, APD selected six candidates
to fill Senior Customs Inspector positions using the Reassignment List.
APD again testified that he believed that the Reassignment List produced
the best qualified candidates.
The Administrative Judge concluded that APD's explanations for using
the Reassignment List to staff the vacancies in Vancouver and Toronto
were unworthy of credence. In so concluding, the Administrative Judge
referenced the fact that APD selected Senior Customs Inspectors from
the BQ lists in Montreal, Calgary, and Edmonton, all locations where
Complainant Jackson decided not to apply. The Administrative Judge noted
that it strained credulity to ask one to believe that in every location
where Complainant Jackson applied, the candidates on the BQ lists were not
as qualified as candidates on the Reassignment lists, but that in every
location where Complainant Jackson did apply, the BQ list candidates
were worthy of promotion. When questioned about the qualifications
of selectees in Montreal, Calgary, and Edmonton, APD testified that he
believed the selectees to be the best applicants that applied. We affirm
the Administrative Judge's factual findings with regard to TD 98-3077
because they are supported by substantial evidence in the record.
However, we modify the Administrative Judge's order of relief. The
Administrative Judge ordered the agency to place Complainant Jackson in
a position effective August 1, 1997, but there were no selections made
for the locations where complainant applied on that date. Accordingly,
we find that complainant is entitled to retroactive placement in a GS-11
Senior Customs Inspector position effective May 21, 1999, the earliest
date Complainant Jackson would have been eligible for selection and, the
day that the best qualified list was issued for the Vancouver location.<3>
Attorney's Fees And Costs
The Administrative Judge separately issued a decision on attorney's
fees and costs which the agency refused to fully implement causing
the docketing of appeals 07A10052 (Brooks) and 07A10051 (Jackson).
In addition, complainants, together, appealed the Administrative Judge's
decision on attorney's fees and costs; that appeal is docketed as EEOC
Appeal No. 01A12425.
The Commission may award complainants reasonable attorney's fees and other
costs incurred in the processing of a complaint regarding allegations
of discrimination in violation of Title VII. 29 C.F.R. � 1614.501(e).
A finding of discrimination raises a presumption of entitlement to an
award of attorney's fees. Id. Attorney's fees shall be paid for services
performed by an attorney after the filing of a written complaint. Id.
An award of attorney's fees is determined by calculating the lodestar,
i.e., by multiplying a reasonable hourly fee times a reasonable number of
hours expended. Hensley v. Eckerhart, 461 U.S. 424 (1983); 29 C.F.R. �
1614.501(e)(2)(ii)(B). �There is a strong presumption that this amount
represents the reasonable fee.� 29 C.F.R. � 1614.501(e)(2)(ii)(B).
A reasonable hourly fee is the prevailing market rate in the relevant
community. Blum v. Stenson, 465 U.S. 886 (1984). A petition for fees
and costs must take the form of the verified statement required by the
Commission's regulations at 29 C.F.R. � 1614.501(e)(2)(i). By decision
dated December 14, 2000, the Administrative Judge ordered the agency to
pay complainants, who were represented by the same attorney (attorney),
$36,000 (160 hours at $240.00 an hour) in fees. We note that any party
seeking to deviate from the lodestar (the number of hours reasonably
expended by a reasonable hourly rate) has the burden of justifying the
propriety of such a deviation. See EEO MD-110, at 11-8.
While not disputing the lodestar amount of $36,000 itself, the agency
seeks a one-third across-the-board reduction in the lodestar amount to
reflect Complainant Jackson's unsuccessful complaint, TD 98-3076. We find
that under the circumstances of this case, any such across-the-board
reduction is inappropriate. The fact that complainant did not prevail on
every aspect of his complaints does not, in itself, justify a reduction
in the hours reasonably expended where the claims are intertwined, and
it would be impossible to segregate the hours involved in each claim.
It is true that attorney's fees may not be recovered for work on
unsuccessful claims. Hensley, 461 U.S. at 433. However, in cases where
a claim for relief involves �a common core of facts or will be based
on related legal theories� a fee award should not be reduced simply
because the plaintiff failed to prevail on every contention raised in
the lawsuit. Id. �The hours spent on unsuccessful claims should be
excluded in considering the amount of a reasonable fee only where the
unsuccessful claims are distinct in all respects from the successful
claims.� See EEO MD-110, Ch. 11, Sect. 6 (A)(7) (citation omitted).
Here, the unsuccessful claim (TD 98-3076) is not fractionable. All of
the claims at issue here are based, at least in part, on a theory of
race-, or sex- based discrimination. The same agency manager, APD, made
the selections at issue and several witnesses testified concerning all
of the claims. It cannot be said that the claim on which Complainant
Jackson did not prevail is �distinct in all respects� from the claim
on which he was successful. We conclude that no reimbursement will be
disallowed because Complainant Jackson was not successful on TD 98-3076.
Complainants seek a 25 percent enhancement of the lodestar ($9,000) to
reflect their attorney's projected hourly rate at the time of payment
($250.00) and the degree of success and quality of representation.
We reject complainants' request for a 25 percent enhancement of the
lodestar ($9,000) to reflect his projected hourly rate at the time
of payment because the appropriate rate was the prevailing at the
time of the submission of the fee petition. See Missouri v. Jenkins,
491 U.S. 274, 283 n.6 (1989). We deny complainants' request for the
25 percent enhancement based upon the degree of success and quality
of representation because such an enhancement is not justified based
upon our review of the record. We affirm the Administrative Judge's
decision to deny complaints request for costs in the amount of $1,184.65,
because the submissions in support of complainants' request for costs
was untimely filed.
Finally, we note that the complainants do not challenge the Administrative
Judge's award of compensatory damages in the amount of $1,000.00 each.
CONCLUSION
Therefore, we vacate the agency's final orders and reinstate the
Administrative Judge's decision, except that, we modify Complainant'
Jackson's award of relief as explained above and ordered below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
the agency shall offer Complainant Brooks the position of GS-1890-11
Senior Customs inspector in Toronto Preclearance, effective September
14, 1997. Complainant Brooks shall have ten (10) days from the date he
receives the offer to accept or reject it. The agency shall determine
the appropriate amount of back pay (with interest, if applicable)
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."
the agency shall pay Complainant Brooks $1,000.00 in compensatory damages
the agency shall offer Complainant Jackson the position of GS-1890-11
Senior Customs inspector in Toronto, Vancouver or Ottawa Preclearance,
effective May 21, 1999. Complainant Jackson shall have ten (10) days
from the date he receives the offer to accept or reject it. The agency
shall determine the appropriate amount of back pay (with interest,
if applicable) 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."
the agency shall pay Complainant Jackson $1,000.00 in compensatory
damages
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 complainant,
including evidence that the corrective action has been implemented.
the agency shall pay complainants $36,000.00 in attorney's fees.
POSTING ORDER (G0900)
The agency is ordered to post at its Toronto, Vancouver and Ottawa
facilities 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 (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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 14, 2002
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination or retaliation
against any employee or applicant for employment because of that person's
RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, PRIOR EEO ACTIVITY or
PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion,
compensation, or other terms, conditions, or privileges of employment.
The Department of the Treasury Canada Preclearance center (hereinafter
referred to as �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 has been found to have discriminated against two of its
employees by failing to select them for GS-1890-11 Senior Customs
Inspector positions. The facility has been ordered to train the
supervisors involved regarding the requirements of the law referred to
in this posting and to ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment laws. The employee
subjected to the retaliation is entitled to receive proven compensatory
damages.
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 16141 In what appears to be a typographical error,
the Administrative Judge refers to TD 98-3076 as TD-3077.
2 The parties disagree on the issue of whether or not the complaint
relating to vacancy announcement MDAME/98-006SAB was timely counseled.
Since this announcement was cancelled and re-announced under AN81890,
and since complainant's non-selection for the position advertised by
AN81890 is undisputedly timely, we will not here consider the issue of
whether MDAME/98-006SAB was timely counseled.
3 There is no specific finding by the Administrative Judge that the
agency discriminated against complainant when it cancelled vacancy
announcement MDAME/98-006SAB. Rather, the focus of the Administrative
Judge's finding of discrimination concerns the explanations given by
APD to justify the use of the BQ list in instances when Complainant
Jackson's name was not it and not to use the BQ list when Complainant
Jackson's name was on it.