U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Toney E.,1 Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Petition No. 0420150019 Request No. 0520140443 Appeal No. 0120131896 Agency No. FS-2008-00090 DECISION ON A PETITION FOR ENFORCEMENT On September 27, 2015, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of Orders set forth in EEOC Appeal No. 0120131896 (May 22, 2014), request for reconsideration denied, EEOC Request No. 0520140443 (February 6, 2015). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. For the reasons that follow, the petition is GRANTED. ISSUES PRESENTED The issues presented are: (1) whether the Agency has complied with the Commission's Orders in failing to afford Petitioner a retroactive promotion to the position of Center Director, GS-13, at the Agency's Bristol, Tennessee location; and (2) whether Petitioner is entitled to be placed in the Bristol, Tennessee position, even if it means bumping the incumbent employee who was selected over him. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Academic Program Manager, GS-11, at the Agency's Schenck Job Corps Center (JCC) in Pisgah, North Carolina. Petitioner filed a complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American), national origin, age (52), and reprisal in violation of Title VII of the Civil Rights Act of 1964 (Title VII) when: 1. On October 10, 2007, he was not selected for one of the four Center Director positions, GS-0340-12/13, under vacancy announcement ADS07-JCCC-OC-3977G WJAS (Flatwoods Civilian Conservation JCC, Coeburn, Virginia; Jacobs Creek JCC, Bristol, Tennessee; Lyndon B. Johnson JCC, Franklin, North Carolina; and Schenck JCC, Pisgah, North Carolina); and 2. On October 10, 2007, he was denied leadership training for a Job Corps program. At the conclusion of the investigation, the Agency provided Petitioner with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Petitioner initially requested a hearing, but subsequently withdrew his request. The Agency thereafter issued a Final Decision, dated August 29, 2011, finding that it had subjected Petitioner to discrimination as alleged with regard to claim 1.2 Specifically, the Agency found that it failed to articulate a legitimate, nondiscriminatory reason for failing to select Petitioner for any of the four Center Director positions identified in claim 1. The Agency found that the record did not include adequate evidence regarding the selection process. The Agency therefore drew an adverse inference that had it produced the evidence, it would have shown that discrimination occurred as Petitioner alleged. As a result, the Agency ordered itself to provide Petitioner with compensatory damages, attorney's fees, and other make-whole relief. The Agency further ordered the posting of notice regarding the discrimination that had occurred, and also ordered the consideration of discipline for the responsible management officials. The Agency thereafter issued a separate Final Decision on March 1, 2013, regarding remedies. Therein, the Agency found that Petitioner was entitled to a promotion to the Center Director position at the GS-12 grade level or a substantially equivalent position. The Agency also found that Petitioner was entitled to back pay at the GS-12 level from 2007 through the present. The Agency stated, however, that Petitioner was not entitled to back pay or promotion to the GS-13 grade-level because any promotion to this higher grade-level was too speculative. The Agency found that Petitioner was not entitled to an award of pecuniary damages for the annual leave and mileage he accumulated due to his four-hour daily commute from his home in Kingsport, Tennessee, to his current Program Manager position located in Pisgah, North Carolina. In finding that Petitioner was not entitled to damages for his commute, the Agency determined that it was simply too speculative to determine which Center Director position he would have been offered, absent discrimination. In so finding, the Agency noted that one position was located where Petitioner currently worked, with two of the four positions located closer to Petitioner's home, while the fourth position was located farther from Petitioner's home than his current position. The Agency nevertheless took into account Petitioner's four-hour commute in its decision to award him $6,000 in non-pecuniary compensatory damages for the emotional harm he suffered due to the discrimination. The Agency further awarded Petitioner $1,387.50 in attorney's fees. EEOC Appeal No. 0120131896 Petitioner thereafter appealed the Agency's March 1, 2013, Final Decision concerning the award of remedies to the Commission. In Terrance Phillips v. Department of Agriculture, EEOC Appeal No. 0120131896 (May 22, 2014), we modified the Agency's Final Decision, finding that Petitioner would have been promoted to the GS-13 level, instead of the lower GS-12 grade-level, absent discrimination. We therefore ordered the Agency to place Petitioner in the position of Center Director, GS-13, or a substantially equivalent position, retroactive to October 10, 2007. We also found Petitioner was entitled to an award of back pay, with interest from October 10, 2007, through the time he is placed in the position of Center Director, or until such time as Petitioner rejected the Agency's placement offer. We ordered the Agency to provide Petitioner with a clear and accurate accounting of the calculation of Petitioner's back pay award and interest. We also found that the Agency's award of non-pecuniary compensatory damages was inadequate, and instead ordered the Agency to pay Petitioner $30,000 for the emotional harm that he suffered.3 EEOC Request No. 0520140443 Petitioner subsequently requested reconsideration in Terrance Phillips v. Department of Agriculture, EEOC Request No. 0520140443 (February 6, 2015). Therein, Petitioner requested that our previous decision and/or Order be modified to specify that he should be offered a position "at a Civilian Conservation Center within the same geographical area as the Director positions which had been discriminatorily denied" to him. Petitioner argued that the Agency "would not recognize that the location of any of its tendered Director positions had to be geographically 'comparable or equivalent' to the positions which were discriminatorily denied" to him. While we denied Petitioner's request for reconsideration, we nonetheless specifically instructed the Agency: Our previous order [in EEOC Appeal No. 0120131896] specified that [Petitioner] should be awarded the position of Center Director, GS-0340-13, or a substantially equivalent position. The Commission has consistently held that a substantially equivalent position is one that is similar in duties, responsibilities, and location (reasonable commuting distance) to the position for which the complainant originally applied. See, e.g., Monroig v. U.S. Commission on Civil Rights, EEOC Petition No. 04A40029 (Sept. 29, 2005); Spicer v. Dep't of the Interior, EEOC Petition No. 04980007 (Sept. 24, 1998); Patterson v. Dep't of Agriculture, EEOC Request No. 05940079 (Oct. 21, 1994). The burden is on the Agency to establish that the position offered to complainant in fact is substantially equivalent to the position lost. See Rai v. Dep't of the Interior, EEOC Appeal No. 01901186 (May 17, 1990). We reminded the Agency that, in order to comply with our orders in this case, it was required to offer a position that conforms to these parameters. We further instructed that if the Agency failed to do so, Petitioner could file a Petition for Enforcement in order to obtain compliance with our orders, in accordance with 29 C.F.R. § 1614.503. Agency's Arguments The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620150338 on February 24, 2015. On February 27, 2015, the Agency issued its "Final Compliance Report," alleging that it had fully complied with the Commission's orders.4 Thereafter, on March 31, 2015, the Agency sent a letter to Petitioner's attorney offering Petitioner the choice between one of four GS-13 Center Director positions located throughout the country. These four offered Center Director positions were located in Swan, Washington; Ozark, Arkansas; Golconda, Illinois; and Laona, Wisconsin. The letter also noted that Petitioner had previously declined the Agency's August 28, 2014, offer to place him in a Center Director position located in Mammoth Cave, Kentucky. Subsequently, the Agency's Civil Rights Office drafted an "Informational Memorandum" on July 9, 2015, in response to Petitioner's assertion that the Agency had not complied with the Commission's orders as it related to offering him a GS-13 Center Director position. Therein, the Agency asserted that it had in fact complied with the Commission's orders, as it had offered Petitioner the choice of five different GS-13 Center Director positions throughout the country. The Agency indicated that even though the five locations were located outside his commuting area, they were the only Center Director positions available at the time. The Agency noted that, with the exception of the Bristol, Tennessee position, all the other positions which Petitioner was discriminatorily denied were outside of his commuting area in any case. The Agency therefore argued that it was reasonable to offer Petitioner positions to locations outside his commuting area. On July 14, 2015, the Agency submitted another memorandum, titled "Argument in Support of Finding that the Agency is in Compliance with FAD." Therein, the Agency noted that Petitioner specifically requested to be placed in the Bristol, Tennessee Center Director position because it was within commuting distance from his home. Notwithstanding, the Agency argued that it was under no obligation to unconditionally offer him the Bristol, Tennessee position because it was currently not vacant and was occupied by an incumbent employee. The Agency asserted that, although the Commission has the authority to order the "bumping" of such an incumbent employee to remedy the discrimination, this is generally not a favored remedy. The Agency contended that several Federal circuit courts have found that displacing an innocent employee with one who would otherwise have had the position but for illegal discrimination is generally not an appropriate remedy. In sum, the Agency asserted that bumping the incumbent employee from the Bristol, Tennessee, position would be inconsistent with case law, especially in light of the fact that it offered Petitioner other vacant positions that were available. The Agency asserted that the Commission's regulations prefer to offer a substantially equivalent position rather than displacing an incumbent to make way for a victim of discrimination. Petition for Enforcement On August 31, 2015, the Petitioner, through his attorney, requested that the Commission docket his August 5, 2015, "Rebuttal Statement" to the Agency's contentions as his Petition for Enforcement. In accordance with the Petitioner's request, the Commission docketed the instant Petition for Enforcement on September 27, 2015. We note that Petitioner asserts that the five offered positions in the Agency's March 31, 2015, letter were not equivalent or comparable in terms of commuting distance to the positions in claim 1, which he was discriminatorily denied.5 Petitioner contends that Title VII requires that an employee's tendered job position must be comparable in all material respects with the position the employee was discriminatorily denied. In sum, Petitioner specifically requested to be placed in a Center Director position at the Agency's Bristol, Tennessee facility.6 ANALYSIS AND FINDINGS Although the Agency offered Petitioner five Center Director positions located in various areas throughout the country, we find they were not substantially equivalent to the Center Director positions denied to Petitioner. Specifically, we note that the positions offered were not in geographic/commuting locations remotely close to the positions that Petitioner was discriminatorily denied. As we noted in our prior decision, the Agency was required to award Petitioner a substantially equivalent position similar in duties, responsibilities, and location, that is, one which is within a reasonable commuting distance from the position that Petitioner would have occupied. Bass v. Dep't of Justice, EEOC Petition No. 04970001 (Jan. 16, 1997) (citing Patterson, EEOC Request No. 05940079). The Agency did not do so here. Therefore, we find that the Agency is not in compliance with our previous Order. See Carroll v. Dep't of the Air Force, EEOC Petition No. 0420070018 (Feb. 29, 2008) (position offered in another geographic location not substantially equivalent to position denied to petitioner). We note that the Commission's regulations at 29 C.F.R. § 1614.501 expressly provide for an unconditional offer to victims of discrimination placement in the position the individual would have occupied absent discrimination or in a "substantially equivalent" position. Here, the five positions offered to Petitioner clearly were not substantially equivalent in terms of commuting distance to the Agency's Bristol, Tennessee location, a position located within an hour's drive of the Petitioner's home. The Agency maintains that it is unable to offer Petitioner the Bristol, Tennessee position because it is no longer vacant and is currently occupied by an incumbent employee who apparently was selected over Petitioner. Although there may be some disagreement among the Federal circuits, case law from federal courts and the Commission recognizes the bumping of an incumbent employee as a possible remedy for discrimination. Padilla, Jr. v. Dep't of Housing and Urban Development, EEOC Petition No. 04A20031 (Sept. 30, 2003); Sheth v. Dep't of Agriculture, EEOC Petition No. 04A10011(Mar. 8, 2001); Myers v. U.S. Postal Serv., EEOC Appeal No. 04950028 (May 2, 1996); Banks v. Dep't of the Interior, EEOC Request No. 05920680 (March 4, 1994) at n. 5; Mitchell v. U.S. Postal Serv., EEOC Petition No. 04910005 (Aug. 1, 1991); Bruno v. City of Crown Point, Indiana, 950 F.2d 355, 360 (7th Cir. 1991); cert. denied, 505 U.S. 1207 (1992); Lander v. Lujan, 888 F.2d 153, 156-58 (D.C. Cir. 1989) ("[B]umping in this case accords with the broad guidelines that the Supreme Court has provided on the proper scope of Title VII remedies.") The Commission also has previously held that the bumping of an incumbent is a permissible remedy when, in the absence of bumping, the petitioner's relief would be unjustly inadequate. Padilla, EEOC Petition No. 04A20031 (citing Kerschner, Jr. v. Dep't of Labor, EEOC Appeal No. 01933023 (Mar. 15, 1994)); Harness v. U.S. Postal Serv., EEOC Appeal No. 01920294 (June 16, 1992) (citing Lujan, 88 F. 2d, at 156-58). If there is no position available that is substantially equivalent to the positions petitioner was discriminatorily denied, bumping of an incumbent may be the only adequate remedy. Padilla, EEOC Petition No. 04A20031. In the instant case, there is apparently no substantially equivalent position in terms of commuting distance with regard to the Bristol, Tennessee position, a position which Petitioner was discriminatorily denied. The Agency's offering of positions in completely different geographical locations throughout the country is plainly an unjustly inadequate remedy. As there is no substantially equivalent position to the Center Director at the Bristol, Tennessee location, we find that bumping the incumbent employee is the only remedy that would make Petitioner whole under the circumstances. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) (The purpose of Title VII is "to make the victims of unlawful discrimination whole" by putting them in the "position where they would have been were it not for the unlawful discrimination.) As such, Petitioner is entitled to be placed in the Bristol, Tennessee Center Director position, even if it means bumping the individual who was selected over him. See Sheth, EEOC Petition No. 04A10011 (petitioner entitled to be placed in the original position for which he was not selected, even if it means removing one of the original selectees); Padilla, EEOC Petition No. 04A20031 (petitioner discriminatorily not selected to multiple geographic locations entitled to the location of his choice and to bump an incumbent employee selected over him when no substantially similar position was available). CONCLUSION Accordingly, the Commission finds that the Agency has not fully complied with our previous orders set forth in EEOC Appeal No. 0120131896 (May 22, 2014), request for reconsideration denied, EEOC Request No. 0520140443 (February 6, 2015). Therefore, the petition for enforcement is GRANTED. The Agency must now take additional steps to achieve full compliance. Accordingly, we REMAND this matter to the Agency to comply with our orders below. ORDER To the extent it has not already done so, the Agency is ORDERED to take the following remedial action: 1. Within sixty (60) days of receipt of this decision, the Agency shall offer to promote Petitioner to the position of Center Director, GS-13, at the Agency's Jacobs Creek, JCC, Bristol, Tennessee, retroactive to October 10, 2007. Petitioner must be offered the Bristol, Tennessee Center Director position, even if this involves bumping an incumbent. Petitioner shall be given a minimum of fifteen (15) calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the time period set by the Agency will be considered a rejection of the offer, unless Petitioner can show that circumstances beyond his control prevented a response within the time limit. 2. Within sixty (60) days of the date this decision becomes final, the Agency shall pay Petitioner back pay, with interest, for all wages and benefits to which he is entitled, from October 10, 2007, to the time Petitioner is placed in the Bristol, Tennessee Center Director position. The Agency shall determine the appropriate amount of back pay, interest, and other benefits due Petitioner, pursuant to 29 C.F.R. § 1614.501(c). Petitioner 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, interest and or benefits, the Agency shall issue a check to Petitioner for the undisputed amount within 60 days of the date the Agency determines the amount it believes to be due. Petitioner 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." ATTORNEY'S FEES (H0610) If petitioner 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 (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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations March 18, 2016 Date 1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website. 2 The Agency found that Petitioner did not establish that he was subjected to discrimination with regard to claim 2. 3 We noted that Petitioner did not challenge the Agency's finding of no discrimination with respect to claim 2; the award of attorney's fees; and the finding that he was not entitled to an award of pecuniary compensatory damages. 4 The Agency also has issued subsequent compliance reports. 5 Petitioner did not contest the Agency's compliance with respect to the other remedies ordered by the Commission. 6 Petitioner also alternatively asked to be placed at the Coeburn, Virginia location. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0420150019 10 0420150019