WILLIE M. MILLER, APPELLANT,
v.
ROBERT E. RUBIN, SECRETARY, DEPARTMENT OF THE TREASURY, AGENCY.

Request No. 05980345
Appeal No. 01953518
Agency No. 93-3164

GRANTING OF RECONSIDERATION

INTRODUCTION

On February 11, 1998, the Department of the Treasury (hereinafter referred to as the agency) timely filed a request for reconsideration of the decision in Miller v. Department of the Treasury, EEOC Appeal No. 01953518 (January 7, 1998). EEOC regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. § 1614.407(a). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: new and material evidence is available that was not readily available when the previous decision was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved an erroneous interpretation of law or regulation, or material fact, or a misapplication of established policy, 29 C.F.R. §1614.407(c)(2); and the decision is of such exceptional nature as to have substantial precedential implications, 29 C.F.R. §1614.407(c)(3). For the reasons set forth herein, the agency's request is granted.

ISSUE PRESENTED

The issue presented is whether the previous decision properly determined that the agency discriminated against appellant on the basis of his race and properly awarded back pay for the period from May 13, 1992 to January 20, 1993.

BACKGROUND

Appellant--a GS-7 Tax Examiner Assistant--was a full-time seasonal employee in Notice Review Unit I at the agency's facility in Kansas City, Missouri. The Notice Review Unit (NRU) is the last area in the initial processing of tax returns to review taxpayers' accounts before notices are sent to taxpayers. NRU reviews both individual tax accounts (IMF) and business tax accounts (BMF).1 NRU I reviews BMF returns while NRU II and III review IMF returns. Both IMF and BMF processing involve the following: 1) a 320 function, which includes analysis of tax transcripts, returns, and notices, and 2) a 710 function, which involves adjusting accounts.

In May 1993, appellant filed an EEO complaint alleging race (black) discrimination regarding a number of issues. Following an investigation, appellant requested a hearing before an EEOC Administrative Judge (AJ). The AJ identified the issues as follows:

1) On February 22, 1993, appellant was canceled from the IMF NR[U] training class he was scheduled to attend from February 22, 1993 to March 12, 1993;

2) Appellant discovered, on February 23, 1993, that a similarly situated employee, who was outside appellant's protected group and who was ranked lower on the release/recall list, was retained in pay status when appellant was released from pay status from May 13, 1992 until January 20, 1993;

3) Appellant work has been subjected to weekly case reviews since March 1990; and,

4) Appellant's annual evaluation due date was extended from February to May 1993, and he was evaluated for the period April 7, 1991 to May 6, 1993, in the evaluation he received on May 25, 1993.

In its December 12, 1994 letter to the AJ, the agency noted that during the prehearing conference, the AJ had advised the parties that issues 1, 3, and 4 would be resolved if appellant was offered the IMF Notice Review training from which he had been canceled in 1993. The agency stated that it would offer appellant the training, which was tentatively scheduled for 2/12/95 to 3/13/95. The agency asserted that it was offering appellant full relief on the above issues and asked the AJ to remand these issues for dismissal based on mootness.2

The record contains the agency's offer of full relief. To resolve issue 1 (denial of training), the agency offered to enroll appellant in training from February 21 to March 12, 1995. To resolve issue 3 (weekly case reviews), the agency offered to conduct its performance reviews of appellant to the same extent as other similarly situated employees. To resolve issue 4 (extension of performance appraisal period), the agency offered to evaluate appellant in accordance with the union agreement.

At the January 11, 1995 hearing, the AJ found that the agency had offered appellant full relief as to issues 1, 3, and 4, and ruled that those issues would not be addressed at the hearing. Because the AJ would not hear evidence on the above issues, appellant chose not to proceed to a hearing on issue 2 alone. By letter dated January 12, 1995, appellant accepted the agency's offer of full relief on issues 1, 3, and 4.

In a January 31, 1995 Order, the AJ noted that she had granted the agency's motion to dismiss three of appellant's issues based on the agency's offer of full relief. The AJ remanded the case to the agency for the issuance of a final decision.

In its March 2, 1995 FAD (FAD 1), the agency found that appellant had been offered full relief as to issues 1, 3, and 4, and dismissed them as moot. The agency also addressed the merits of issue 2 (furlough) and found no discrimination.

FAD 1 included the following facts relevant to issue 2. The comparative employee (white) also was a Tax Examining Assistant who initially worked in NRU III and then NRU II. The comparative employee and another Tax Examining Assistant (nonblack) both worked the night shift in NRU II. These two employees requested hardship transfers to NRU I and, when positions became available, both transferred to the day shift in NRU I.

In April 1992, the comparative employee was detailed to NRU II to make adjustments and to help reduce the inventory of "aged" cases. In May 1992, all seasonal BMF Tax Examining Assistants--except for the comparative employee and another seasonal employee (nonblack)--were released from work status. On May 14, 1992, appellant was placed in a nonpay status due to lack of work. The two employees who were not furloughed possessed IMF skill codes, which appellant did not have. On October 24, 1992, the comparative employee was placed in a nonpay status due to lack of work. On January 20, 1993, appellant and the comparative employee returned to pay status.

Based on these facts, the agency found that appellant failed to establish a primafacie case of race discrimination because he and the comparative employee were not similarly situated. That is, the comparative employee, while employed in NRU II and III, had performed IMF work and was appropriately coded as possessing IMF skills. By contrast, appellant had been employed only in NRU I and had performed work only under the BMF skill code--a different type of work. The agency found that in accordance with the union agreement, skill codes were taken into account when the release/recall list was developed.3 That is, because of the overabundance of IMF work in NRU II, the comparative employee was detailed there in April 1992 and retained in a pay status to continue doing that work while appellant was released.

Appellant appealed from FAD 1. In conjunction therewith, appellant provided an April 24, 1995 memorandum to NRU I employees. The memo indicated that NRU I employees were needed to input "710" for NRU II and III. The memo advised that:

When you input IMF 710, you will be required to input what is notated by the original [Tax Examining Assistant]. You are not performing IMF 320 review but only inputting IMF 710 which is a normal function for our unit & does not require IMF Notice Review Training as required in NR II & III. (emphasis in original)

Appellant also provided a copy of the comparative employee's performance summary report for April 1, 1992 to September 30, 1992. The report indicated that the comparative employee was assigned to NRU I for that time period and that the majority of his time was spent performing the IMF 710 function.

In its response to appellant's appeal, the agency noted appellant's above described evidence. The agency contended--interalia--that if the Commission intended to consider this evidence, the case should be remanded for supplemental affidavits and information.

On March 31, 1995, the agency issued FAD 2. FAD 2 addressed appellant's allegation that the agency was not in compliance with the offer of full relief, i.e., appellant alleged that the agency had removed him from the February 1995 IMF training class. FAD 2 found that the agency was in compliance with the offer of full relief. Appellant appealed from FAD 2. Appellant's appeal was docketed as EEOC Appeal No. 01955434 and, on May 26, 1996, the case erroneously was closed as a duplicate of the appeal in FAD 1.

Upon review of appellant's appeal of FAD 1, the previous decision vacated FAD 1 as to issues 1 and 4, finding that they were improperly dismissed as moot because the question of appellant's training remained "not only unresolved" but also was the subject on FAD 2 and another appeal by appellant. The previous decision affirmed the dismissal of issue 3 for mootness. The previous decision reversed FAD 1 as to issue 2, finding that the agency discriminated against appellant when he was furloughed while the comparative employee was retained. Noting the "inconsistencies and ambiguities" in the record, the previous decision found that appellant had a higher rating and ranking than the comparative employee yet was released from NRU I while the comparative employee was retained in NRU I. The previous decision also found that appellant was not provided IMF training and was furloughed, while the comparative employee was provided BMF training and retained. The previous decision stated --interalia-- that it was not persuaded that the comparative employee was performing different work than appellant or that additional training was needed for appellant to perform the work.

The previous decision noted that appellant and the comparative employee had almost identical skill codes, the only difference being that appellant had a BMF code and the comparative employee had both IMF and BMF codes. The previous decision referred to evidence showing that the IMF 710 function was a normal NRU I function and that no specialized training was required therefor.

The previous decision addressed FAD 2 regarding appellant's allegation of noncompliance with the offer of full relief. The previous decision noted that appellant's appeal erroneously had been closed as a duplicate of the appeal in FAD 1. Because the matters in FAD 1 and FAD 2 were inextricably intertwined and bore the same agency case number, the previous decision addressed appellant's claim of noncompliance. Finding that the record contained insufficient evidence on this matter, the previous decision remanded the matter for a supplemental investigation and a new FAD.

The previous decision also addressed a final agency decision dated October 25, 1993--FAD 3. The previous decision noted that appellant appeared not to have filed an appeal from FAD 3. Nonetheless, the previous decision addressed the matter because, interalia, record evidence was not clear as to whether appellant ever received FAD 3 and the issue in FAD 3 pertained to the issue of training in appellant's present complaint. The previous decision found that FAD 3--in relevant part--referenced appellant's May 1993 complaint and dismissed appellant's allegation of discrimination regarding the selection process for the February 1993 IMF training class. The previous decision noted that appellant had been scheduled for the class but that his participation subsequently was canceled. The previous decision found that the agency properly dismissed this issue for failure to state a claim on the grounds that appellant sustained no harm as to the selection process in contrast to the cancellation of training, which had been accepted for investigation. The previous decision affirmed FAD 3.

In its reconsideration request, the agency challenges only the previous decision's finding of discrimination as to issue 2.

In response, appellant contends that the agency's request fails to meet the statutory criteria for reconsideration and should be denied for that reason.

ANALYSIS AND FINDINGS

The Commission may, in its discretion, reconsider any previous decision when the party requesting reconsideration submits written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. For a decision to be reconsidered, the request must contain specific information that meets the criteria referenced above.

The agency asserts that the previous decision's finding of race discrimination resulted from an erroneous interpretation of the NRU I Manager's April 24, 1995 memorandum. The agency also asserts that the time period for which back pay was awarded was incorrect.

For the reasons stated below, the Commission grants the agency's reconsideration request for the limited purpose of correcting the period for which back pay was awarded.

The agency asserts that the previous decision incorrectly interpreted the April 24, 1995 memorandum. As already noted, the memorandum indicated that NRU I employees were needed to "input IMF 710." The memorandum further indicated that in doing so, NRU I employees were not performing the IMF 320 function, but were only "inputting 710, which is a normal function for [NRU I] and does not require IMF Notice Review Training as required in NR II & III."The agency argues that the previous decision assumed that the memorandum addressed "710" work in its entirety and explains that 710 work actually has two components, both of which are charged to the 710 function. According to the agency, the first component--identifying any errors made during the IMF 320 function--can only be performed by someone with IMF training. As supporting evidence, the agency provides an affidavit from the NRU I Manager who wrote the April 24, 1995 memorandum.

We find no error in the previous decision's interpretation of the above memorandum given the information available during the pendency of appellant's appeal. In this regard, we note that the agency has given no reason or explanation as to why it previously was unable to provide the NRU I Manager's affidavit and an explanation of the 320 and 710 functions when it clearly had notice of appellant's reliance on the memorandum during the appeal process. We further note that there are a number of other inconsistencies in the record which the previous decision resolved in appellant's favor and the agency simply fails to address. In this regard, the comparative employee's summary performance report for the period April 1, 1992 to September 30, 1992 appears to show that he was employed in NRU I, which is inconsistent with the agency's claim that he was detailed to NRU II during this time. We also note that appellant's recall/release employee appraisal, which indicates the ranking and skill codes that the agency asserted it relied on to release employees from pay status, bears a "run" date of May 18, 1992--four days after appellant's release on May 14, 1992. Additionally, as noted in the previous decision, none of the agency's management officials ever admitted responsibility for determining what skill code was necessary for retention in a pay status and/or for placing appellant in a nonpay status. After reviewing the previous decision, the record in its entirety, and the parties' submissions, we cannot say that the previous decision erred in resolving the conflicts and ambiguities in the record in appellant's favor and in finding race discrimination as to issue 2.

The previous decision awarded appellant back pay from May 14, 1992 until he returned to duty on January 20, 1993. Record evidence, however, showed that the comparative employee was placed into a nonpay status on October 24, 1992 and did not return to a pay status until January 20, 1993. Based on these facts, we find that appellant was entitled to back pay for the period May 14, 1992 to October 24, 1992, rather than the period from May 14, 1992 to January 20, 1993.

CONCLUSION

After a review of the agency's request for reconsideration, the appellant's response, the previous decision, and the entire record, the Commission finds that the agency's request for reconsideration meets the criteria of 29 C.F.R. §1614.407(c), and the request hereby is GRANTED. The decision in EEOC Appeal No. 01953518 hereby is AFFIRMED, AS MODIFIED.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

1. The agency shall provide appellant with back pay and all benefits to which he would ordinarily been entitled had he not been placed in a nonpay status from May 14, 1992 until October 24, 1992.

2. The agency shall determine the appropriate amount of back pay with interest and other benefits due appellant pursuant to 29 C.F.R. §1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The appellant shall cooperate in the agency's efforts to compute the amount of back pay 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 appellant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The appellant 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 agency is further ORDERED to conduct a supplemental investigation pertaining to the remanded issues, in particular, whether the agency was in compliance with its offer of full relief. The agency shall supply evidence that appellant was provided with the applicable training, or provide a satisfactory explanation, with supporting evidence, as to why the training was not provided. In the event the training was not provided, the agency shall indicate, again with supporting evidence, whether and when it intends to provide such training to appellant. The supplemental investigation shall be completed within sixty (60) calendar days after the date this decision becomes final. The agency's findings and determination shall be incorporated with a new FAD, which the agency shall issue, with appeal rights to the Commission.

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 back pay and other benefits due appellant, including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Kansas City, Missouri 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 (H1092)

If appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. See29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See29 C.F.R. §1614.410.

RIGHT TO FILE A CIVIL ACTION (Q0993)

This decision affirms the agency's final decision in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court on both that portion of your complaint which the Commission has affirmed AND that portion of the complaint which has been remanded for continued administrative processing. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092)

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 etseq.; 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:

Frances M. Hart
Executive Officer
Executive Secretariat

July 20, 1998

1. IMF stands for "Individual Master File" and BMF stands for "Business Master File."

2. Pursuant to Poirrier v. Dep't of Veterans Affairs, EEOC Appeal No. 01933308 (May 5, 1994), an AJ has the authority to define full relief, and absent the complainant's acceptance of the offer, remand the case to the agency for dismissal.

3. The union agreement provided that the release and recall of seasonal employees would be accomplished on a branch-wide basis by overall performance (quality and quantity of work) of those employees who possessed the skills needed.