Raymon Kitson, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (U.S. Marshals Service), Agency. Request No. 0520110312 Appeal No. 0720100052 Agency No. USM-2008-00152 DENIAL On March 3, 2011, the Agency timely requested reconsideration of the decision in Raymon Kitson v. Department of Justice, EEOC Appeal No. 0720100052 (February 15, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b). ISSUE PRESENTED The issue presented in this Request for Reconsideration is whether the Agency demonstrated that its request meets the requirements for reconsideration of the appellate decision. BACKGROUND In the appellate decision, the Commission found that the Agency discriminated against Complainant on the basis of age (54) when he was not selected for the position of Supervisory Deputy U.S. Marshal in Atlanta in December 2007, in favor of a younger candidate (38). Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on July 17, 2009, and issued a decision on July 7, 2011, finding that the Agency discriminated against Complainant. The decision below affirmed the AJ’s decision and ordered appropriate relief. In its request, the Agency argued, contrary to the previous decision and the AJ, that the U.S. Marshall (Atlanta) (USM) was not the actual selecting official, because the ultimate selection decision was signed by the Agency Director, upon the recommendation of the Career Board. Also, the Agency contended that the Commission’s Order was too broad in two respects: that training was required for all employees at GS-13 and higher, regardless of their connection to Complainant’s non-selection; and that, because Complainant voluntarily retired before his required retirement at age 57, his back pay award should be adjusted accordingly. ANALYSIS AND FINDINGS In order to merit the reconsideration of a prior decision, the requesting party must submit written argument that tends to establish that at least one of the criteria of 29 C.F.R. § 1614.405(b) is met. The Commission’s scope of review on a request for reconsideration is narrow and not merely a second appeal. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). In this matter, the Commission finds that the Agency’s request does not meet the regulatory criteria of 29 C.F.R. § 1614.405(b), in that, the request does not identify a clearly erroneous interpretation of material fact or law, nor does it show that the underlying decision will have a substantial impact on the policies, practices, or operations of the agency. The Agency’s submission points to its managers in Washington as the decision makers, who ranked the candidates and chose the selectee, seemingly without any input from Atlanta. We do not find that the Agency has established that the previous decision clearly erred in finding that “[w]hile the Marshal may not have been the official selecting official, we agree with the AJ that he was the actual selecting official.” Among other things, the previous decision found that the USM’s ranking of the selectee in the number one spot exerted significant influence over the Career Board. Based on her review of the record and testimony presented at the hearing, the AJ focused on the process internal to the Atlanta office. She rejected the testimony of both the Assistant Chief (S1) and the USM regarding the ranking of the candidates, found S1’s statement that he was not familiar with the term “too short” to be unlikely, and that he, in fact, recommended the selectee who could be “molded” by the local Atlanta officials. Further, the AJ found that Complainant presented direct evidence of age discrimination, and, even if the matter was examined as a disparate treatment case, the Agency failed to articulate a legitimate, nondiscriminatory reason for its selection decision. We also find that regardless of the ultimate decision-maker, the Agency has failed to show that its reasons for selecting the selectee were not pretext or that age was not a factor at any point in the process. With respect to its contentions regarding the remedial award, the Agency objected to the ordered training, because it included individuals who were not involved in Complainant's non-selection. At the outset, we note that the Commission does not consider training to be punishment. In situations like this, where the record shows a casual disregard for EEO requirements, we have a remedial responsibility to ensure that managers and employees are clearly aware of their EEO rights and obligations. Consequently, we do not find that the previous decision clearly erred in its interpretation of a material fact or law. The Agency also challenged the back pay awarded to Complainant. Where liability has been established, an employee is entitled to make-whole relief. Albemarle Paper Company et al. v. Joseph P. Moody et al., 422 U.S. 405, 440 (1975) (make-whole relief is computed as the amount of compensation lost as a result of the Agency's discriminatory decision not to promote). Here, the previous decision ordered back pay to be calculated as if Complainant was awarded the position and as if he mandatorily retired at age 57. The Agency has not provided evidence of clear error, nor will we speculate as to Complainant’s reasons for availing himself of an earlier retirement. CONCLUSION After review of the previous decision and the entire record, the Commission finds that the Agency’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 in EEOC Appeal No. 0720100052 remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency is directed to comply with the Order in the prior decision, as modified below. ORDER 1 1. Within sixty days of this decision becoming final, the Agency shall provide Complainant with appropriate back pay from the date the Selectee assumed the position until the date of Complainant’s mandatory retirement. 2. Within ninety days of this decision becoming final, Complainant’s retirement and other benefits must also be adjusted to reflect any additional compensation he would have been eligible for if he had mandatorily retired as a GS-13. 3. Within ninety days of this decision becoming final, the Agency shall conduct training for all GS employees in the Northern District of Georgia occupying GS-13 or higher-level positions. The training shall last for at least seven hours, excluding breaks and lunch, and shall address these employees’ responsibilities with respect to eliminating discrimination in the federal workplace and shall review their obligations to uphold and promote EEO principles under the equal employment opportunity laws. 4. Within sixty days of this decision becoming final, the Agency shall consider taking appropriate disciplinary action against the individuals responsible for the discrimination. 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). 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 verifying that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at all facilities under the jurisdiction of its Atlanta, Georgia, regional offices 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. 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 RIGHTS ON A REQUEST FOR RECONSIDERATION COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) 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 (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 ____6/10/11______________ Date 1 Some of the language in the Order from our prior decision has been modified in order to clarify the Commission’s intent. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0520110312 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013