E.E.O.C. Office of Federal Operations FRANCISCO PADILLA, JR., PETITIONER, v. MEL R. MARTINEZ, SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, AGENCY. Petition No. 04A20031 Appeal No. 01986538 Agency No. FH9501 Hearing No. 100-96-7134x September 30, 2003 DECISION ON A PETITION FOR ENFORCEMENT On July 9, 2002, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an order set forth in Francisco Padilla, Jr. v. Department of Housing and Urban Development, EEOC Appeal No. 01986538 (August 14, 2001). This petition for enforcement is accepted by the Commission pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the agency failed to fully comply with the Commission's order set forth in the previous decision. For the reasons set forth below, the Commission finds that the agency has not fully complied and, therefore, the Petition is GRANTED, in part. Petitioner filed a complaint in which he alleged that the agency discriminated against him on the bases of national origin (Hispanic) and sex (male), and subjected him to retaliation for prior EEO activity (settlement of EEO complaint, basis unspecified) when he was not selected for the position of Director, Multifamily Division in the agency's Boston, Kansas City, Denver, Seattle, Portland, Forth Worth, Houston, Des Moines, Omaha, Phoenix, or San Antonio facilities. Petitioner appealed the agency's final decision finding no discrimination to the Commission. In EEOC Appeal No. 01986538, the Commission found that petitioner had been subjected to national origin discrimination when he was not selected for the positions in Boston, Denver, Fort Worth, Houston, Kansas City, Portland and Seattle and sex discrimination when he was not selected for the positions in Phoenix and San Antonio. The order specified that the agency had to offer petitioner a position as Director, Multifamily Division, GS-1101-14/15 in Boston, Denver, Fort Worth, Houston, Kansas City, Portland, Seattle, Phoenix, or San Antonio, or at another location, with petitioner's agreement. The order further directed that if no such job was available, petitioner would be offered a substantially equivalent position. The order also required the agency to determine the appropriate amount of back pay and other benefits, provide EEO training to the management officials responsible for petitioner's non-selections, post a notice, and conduct a supplementary investigation into the issue of compensatory damages and attorney's fees. The matter was assigned to a Compliance Officer and docketed as Compliance No. 06A11786 on August 16, 2001. On July 9, 2002, petitioner submitted the petition for enforcement at issue. Although in his original submission, petitioner raised a number of issues, in a September 2002 submission, he indicated that the pending issues are limited to: (1) his placement in the position of Director, Multifamily Division or a substantially equivalent position; (2) an accounting with respect to the agency's determination of back pay; and (3) the issue of EEO training for a particular agency official. In its brief, the agency asserts that it has fully complied with the Commission's Order. In regard to the requirement that the agency offer to petitioner a position as Director, Multifamily Services in one of the named offices, or a substantially equivalent position, the agency notes that it informed petitioner that it currently had no available GS-15 Multifamily Director positions in the respective offices and offered instead to promote petitioner to a GS-15 in his current position as Director, Community Planning and Development Division in Albuquerque, New Mexico. The agency states that petitioner accepted the offer for a GS-15 in his present position, at the Houston locality pay rate, but notes that it then determined that it would not be able to pay him at the Houston locality pay rate because locality pay was based on the physical location of the employee.1 The agency further argues that it provided the appropriate amount of back pay, as well as EEO training to the relevant management officials. In response to petitioner's claim that a certain management official (then Director of the Denver Office of Housing, hereinafter DDO) should be trained, the agency contends that this individual was not involved in the selection process. The agency concludes that it fully complied with the EEOC's order. After a careful review of the record, we find that the agency is correct that there is no evidence to support petitioner's claim that DDO was responsible for his non-selection. Although DDO did provide an unsolicited recommendation for one of the other applicants, he was not the selecting official, nor did he serve on the panel that screened the applications. The selecting official and DDO both testified that DDO had no role in the selections at issue. Petitioner's assertion that there is reason to believe that DDO was more closely involved in the decision than he claimed to be is not supported by any evidence in the record. In these circumstances, we find that the agency did not fail to comply with EEOC's order by failing to require DDO to undergo EEO training. The agency does not dispute, however, that it failed to provide petitioner with documents supporting its calculation of back pay. In order to fully comply with the Commission's order, the agency must provide to petitioner all documents provided to the Compliance Officer concerning its computation of back pay, as directed below. Finally, we turn to the issue of the agency's failure to offer petitioner a position of Director, Multifamily Housing, or a substantially equivalent position. There is no dispute that the agency did not offer petitioner a position as Director, Multifamily Housing. The agency asserts that it did not do so because as a result of a Management Reform Plan in 1998, it consolidated multifamily program operations to 18 Multifamily HUBS and 34 program centers. It further notes that it, as of January 22, 2002, had no available GS-15 Multifamily Director positions in the respective offices. We note, however, that it does not contend that these positions no longer exist due to the consolidation. Instead of offering petitioner one of the existing GS-15 Multifamily Director positions, the agency offered to promote petitioner to a GS-15 in his current position. The agency makes no argument that this is a substantially equivalent position. Commission precedent holds that a substantially equivalent position is one with compensation, promotional opportunities, job responsibilities, working conditions, and job status which are similar to the position lost as a result of discrimination. See Hubert v. United States Postal Service, EEOC Petition No. 04920004 (July 10, 1992). Here, offering to allow petitioner to retain the position which he held when he applied for the promotion at issue, at the GS-15 level, while possibly allowing him to attain the same compensation as he would have absent discrimination, does not provide him with a position with job responsibilities, working conditions, or job status which are similar to the position of Director, Multifamily Housing. Petitioner asserts that he accepted the offer to retain his current position at the GS-15 level, contingent on also receiving Houston locality pay. He further notes that he subsequently agreed to accept his current position at the GS-15 level, contingent on receiving front pay in lieu of the Houston locality rate. He also states that he agreed to accept these alternative arrangements only if he were afforded the right of first refusal of any Multifamily Director position vacancy that might occur. He contends without dispute that he never received a reply to any of these offers. The Commission has previously held that EEOC Regulation 29 C.F.R. § 1614.501 provides for an unconditional offer to victims of discrimination of placement in the position the individual would have occupied absent discrimination or in a "substantially equivalent" position. See Kerschner, Jr. v. Department of Labor, EEOC Appeal No. 01933023 (March 15, 1994). Petitioner has received neither in the case at hand. Petitioner is entitled to be placed in a Multifamily Housing Director position in one of the specified locations. If none is currently vacant and there is no substantially equivalent position, as is apparently the case here given the agency's failure to offer petitioner a position with compensation, promotional opportunities, job responsibilities, working conditions, and job status which are similar to the position he was denied, then petitioner is entitled to be placed in one of the original positions for which he was not selected, even if it means removing one of the individuals who was chosen over petitioner. The Commission has previously held that "bumping" of an incumbent is a permissible remedy when in the absence of bumping, the petitioner's relief would be unjustly inadequate. See Kerschner, supra. If there is no position available that is substantially equivalent to the positions petitioner was discriminatory denied, bumping of an incumbent may be the only adequate remedy. Accordingly, the Commission finds that the agency has not fully complied with our previous Order set forth in EEOC Appeal. No. 01986538 (August 14, 2001) and must take additional steps to be in full compliance. The agency is therefore directed to comply with the ORDER below. ORDER The agency is ordered to take the following remedial action: 1. Within thirty (30) days of receipt of this decision, the agency shall offer to promote petitioner to the position of Director, Multifamily Housing, in either the Boston, Denver, Fort Worth, Houston, Kansas City, Portland, Seattle, Phoenix or San Antonio offices, at his choice, or at another location with his agreement, or a position that is substantially equivalent in terms of compensation, promotional opportunities, job responsibilities, working conditions, and job status, in a location of which he approves. If no such position is now available, petitioner must be offered the Director, Multifamily Housing position in one of the named offices, at his choice, even if this involves bumping an incumbent. Petitioner shall be given a minimum of thirty (30) 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. This placement shall be retroactive to the effective date of the earliest selection made for the positions at issue. 2. To the extent it has not already done so, the agency shall determine the appropriate amount of back pay, with interest, and other benefits due petitioner pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The 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 and/or benefits, the agency shall issue a check to the petitioner for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The 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." 3. Within fifteen (15) days of the date of this decision, the agency will provide to petitioner all documentation provided to the Compliance Officer in support of its previous back pay calculation. Further, upon completing its calculation of additional back pay owed, as described above, the agency will provide petitioner all documentation created in making that calculation. 4. The agency shall provide petitioner with reasonable attorney's fees and costs incurred as a result of initiating this petition for enforcement, as directed below. 5. 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 petitioner, including evidence that the corrective action has been implemented. The report shall also include a copy of the letters transmitting to petitioner all documentation of the previous back pay calculation and the back pay calculation required by this Order. ATTORNEY'S FEES (H0900) 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 (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 petitioner. If the agency does not comply with the Commission's order, the petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The petitioner 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 petitioner 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 petitioner 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 RIGHT TO FILE A CIVIL ACTION (S0900) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). For the Commission: Carlton M. Hadden Director Office of Federal Operations Footnotes 1 Petitioner notes that he accepted the offer for a grade GS-15 in his current position only after the agency clarified that this would include the Houston locality rate. The agency does not deny this version of events.