01981083
11-13-1998
Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, (V.A. Medical Center, Houston, TX), Agency.
Otis R. Myles v. Department of Veterans Affairs
01981083
November 13, 1998
Otis R. Myles,
Appellant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
(V.A. Medical Center, Houston, TX),
Agency.
Appeal No. 01981083
Agency No. 97-0395
EEOC Hearing No. 330-97-8142x
DECISION
On November 24, 1997, the appellant timely filed an appeal with the Equal
Employment Opportunity Commission (EEOC) from a final agency decision
(FAD) concerning his allegation that the agency violated Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621
et seq. The appeal is accepted in accordance with the provisions of EEOC
Order 960, as amended.
The issue presented is whether the agency discriminated against the
appellant on the bases of his race (African American), color (Black),
sex (male), age (born on 9/13/1941), and in reprisal for previous EEO
activity when he was given a letter of admonishment on September 11,
1996, by the Chief of Environmental Management Service.
At the time of the alleged discrimination, the appellant was employed as
a WS-2 Housekeeping Aid Foreman in Environmental Management Service at
the agency's Medical Center in Houston, Texas. Believing that the agency
discriminated against him, the appellant filed the instant complaint in
November 1996.
After the agency completed the investigation of the complaint, the agency
notified the appellant of his right to request a hearing before an EEOC
Administrative Judge (AJ). The appellant requested a hearing.
After a hearing, the AJ issued a recommended decision finding no
discrimination on the bases of appellant's race, color, sex or age.
The AJ, however, found that the agency retaliated against the appellant
for engaging in protected activity. As relief, the AJ recommended
the removal of all documents referring to the appellant's admonishment
in September 1996 from agency files; training for responsible agency
personnel; the posting of a notice of violation; and, an investigation
to determine the appellant's entitlement to compensatory damages for
proven discrimination. The agency received the AJ's recommended decision
on September 2, 1997. On October 27, 1997, the agency issued the instant
FAD adopting the AJ's findings of no discrimination on the bases of race,
color, sex or age, but rejecting the AJ's finding of unlawful reprisal.
It is from this FAD that the appellant now appeals.
After a careful review of the record in its entirety, we find that the
AJ's recommended decision sets forth the relevant facts and properly
analyzes the appropriate regulations, policies and laws. Based on the
evidence of record, we discern no basis to disturb the AJ's findings.
The record shows that an agency EEO Counselor met with the Chief of
Environmental Management Service ("the Chief") on September 5, 1996, to
discuss the appellant's allegation that he was improperly charged AWOL
(absent without official leave) by the Chief for his absence on August 30
even though he had timely requested sick leave for that day in accordance
with established procedures. The Chief corrected the appellant's leave
record to show that he took approved sick leave on August 30. However,
on the same day that the Chief and the EEO Counselor met, the Chief
recommended the issuance of a letter of admonishment to the appellant
because of the latter's alleged failure to monitor the tardy behavior of
an employee he had previously supervised. After receiving the agency's
letter of admonishment dated September 11, 1996, the appellant filed
the instant complaint alleging reprisal, among other things, for his
previous EEO contact regarding the AWOL issue.
The AJ found that there was no evidence that the agency treated the
appellant differently because of his race, color, sex or age, in
issuing the letter of admonishment. However, the AJ found that the
appellant established a prima facie case of reprisal because the letter
of admonishment was issued by the Chief within less than a week of his
meeting with an EEO Counselor to discuss the appellant's allegation
of discrimination regarding the AWOL incident. The AJ found that the
agency articulated a legitimate non-discriminatory reason for issuing
the admonishment letter. She found that although the appellant had not
been the tardy employee's supervisor for over three months at the time the
Chief recommended admonishment for the appellant, the Chief had discovered
the appellant's neglect only around September 4, 1996, in connection with
a grievance filed by the tardy employee against his then-supervisor.
The Chief testified that he then recommended admonishment for the
appellant before he became aware of the appellant's EEO contact.
The AJ did not find the Chief's testimony credible that he was not aware
of the appellant's EEO activity prior to determining that he should
be disciplined for his failure to appropriately deal with the tardy
employee's behavior. Further, the AJ found that the Chief knew about
the appellant's EEO activity prior to issuing the letter of admonishment
on September 11, 1996. She found that no other supervisor had ever been
disciplined for the tardy employee's leave abuse despite the fact that his
leave usage had been consistently bad under several different supervisors.
The AJ did not find it "credible that only the Complainant, who had
at least counseled [the tardy employee] and attempted to correct his
behavior, would have been the only supervisor charged with dereliction of
duty over this situation unless there was more than this situation under
consideration[,]" namely, the appellant's contemporaneous initiation
of the EEO process against the Chief for improperly charging him AWOL.
The AJ, therefore, found that the agency's explanation was a pretext
for unlawful reprisal.
We reject the agency's finding that it did not retaliate against the
appellant because the Chief recommended his admonishment before he
became aware of the appellant's EEO contact. In making this finding,
the agency improperly disregarded the AJ's credibility determinations
as well as her finding that the appellant was held to a higher level of
responsibility for the tardy employee's behavior than any other supervisor
because of his own contemporaneous EEO allegation against the Chief.
Because a finding of discrimination is entered and the claim for
compensatory damages was not considered, the case is remanded to the
agency for a supplemental investigation and a separate final agency
decision on the compensatory damages claim.<1> In Carle v. Dept. of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993), the Commission described
the type of objective evidence that an agency may obtain when assessing
the merits of a complainant's request for emotional distress damages:
[E]vidence could have taken the form of a statement by appellant
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
appellant day to day, both on and off the job. In addition, the agency
should have asked appellant to provide objective and other evidence
linking ... the distress to the unlawful discrimination ....
Objective evidence may include statements from the appellant concerning
his emotional pain or suffering,<2> inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character
or reputation, injury to credit standing, loss of health, and any other
non-pecuniary losses that are incurred as a result of the discriminatory
conduct. Statements from others, including family members, friends, and
health care providers could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, loss of self-esteem,
excessive fatigue, or a nervous breakdown. Objective evidence may also
include documents indicating appellants' actual out-of-pocket expenses
regarding medical treatment, counseling, and so forth, related to the
injury caused by the agency's discriminatory action.
Upon remand, the agency shall process the appellant's claim for
compensatory damages in accordance with this decision and the terms of
the order below.
Accordingly, the FAD is AFFIRMED to the extent that the agency found no
race, color, sex or age discrimination. The FAD is, however, REVERSED to
the extent that the agency found no reprisal, and the agency is ORDERED
to comply with the terms of the Order below.
ORDER
1. Within ten (10) calendar days of the date this decision becomes final,
the agency shall inform the appellant in writing that it has rescinded
the September 11, 1996, letter of admonishment and removed all references
thereto from his official personnel file. The agency shall also send
a copy of this letter to the Commission's Compliance Officer identified
below.
2. Within ten (10) calendar days of the date this decision becomes final,
the agency shall give the appellant a notice of his right to submit
objective evidence in support of his claim for compensatory damages
within forty-five (45) calendar days of the date the appellant receives
the agency's notice. The agency shall complete the investigation on
the claim for compensatory damages within seventy-five (75) calendar
days of the date this decision becomes final. Within one hundred (100)
calendar days of the date this decision becomes final, the agency shall
issue a final decision pursuant to 29 C.F.R. 1614.110 regarding the
appellant's entitlement to compensatory damages.
3. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall provide at least four hours of training to the
responsible management official (the Chief) in the prohibitions against
retaliation for participating in EEO activity. Documentation evidencing
completion of such training shall be submitted to the Compliance Officer
within thirty (30) calendar days thereafter.
4. The agency shall post at the V.A. Medical Center in Houston, Texas,
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 one hundred and eighty (180)
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 within ten (10) calendar days of
the expiration of the posting period.
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 showing that
all the ordered corrective action has been implemented by the agency.
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.
See 29 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.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
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 EIGHTY (180) CALENDARS 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. 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 (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 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:
Nov 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission ("EEOC") 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 in the
Department of Veterans Affairs, V.A. Medical Center, Houston, Texas
(hereinafter "the V.A. Medical Center").
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The V.A. Medical Center supports and will comply with such Federal law
and will not take action against individuals because they have exercised
their rights under law.
The V.A. Medical Center has been found to have unlawfully disciplined
an employee for engaging in protected EEO activity. As a result,
the agency has been ordered by the EEOC to rescind the disciplinary
action and to award the employee appropriate compensatory damages.
The V.A. Medical Center will provide training to the responsible
management official in the prohibitions against retaliation for engaging
in protected EEO activity. The V.A. Medical Center will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws and will not retaliate against employees
who file EEO complaints.
The V.A. Medical Center 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 1614
1 In Jackson v. United States Postal Service, EEOC Appeal No.
01923399 (November 12, 1992), request for reconsideration denied, EEOC
Request No. 05930306 (February 1, 1993), the Commission held that
Congress afforded it the authority to award such damages in the
administrative process. It based this assessment, inter alia, on a
review of the statutory provisions of the Civil Rights Act of 1991 in
relation to one another and on principles of statutory interpretation
which require statutes to be interpreted as a whole. In particular,
the Commission discussed the meaning of the statute's definition of the
term "complaining party" and the significance of the reference to the
word "action" in Section 102(a). In addition to the specific reasons set
forth in Jackson for this holding, Section 2000e-16(b) (Section 717) of
the Civil Rights Act of 1964 (42 U.S.C. �2000e et seq.)(CRA) conveyed
to the Commission the broad authority in the administrative process
to enforce the nondiscrimination provisions of subsection (a) through
"appropriate remedies". Similarly, in Section 3 of the Civil Rights Act
of 1991 (CRA of 1991), Congress refers to its first stated purpose as
being "to provide appropriate remedies for intentional discrimination
and unlawful harassment in the workplace", thereby reaffirming that
authority. Consequently, it is our view that in 1991, Congress clearly
intended to expand the scope of the "appropriate remedies" available
in the administrative process to federal employees who are victims
of discrimination. Moreover, in Section 717(c) of the CRA, the term
"final action" is used to refer to administrative decisions by agencies
or the Commission, as distinguished from the term "civil action", used
to describe the rights of employees after such final action is taken.
Therefore, the Commission reaffirmed the holding therein. See Cobey
Turner v. Department of the Interior, EEOC Appeal Nos. 01956390 and
01960518 (April 27, 1998).
2 We note that a request for compensatory damages related to emotional
pain and suffering may permit the agency to seek personal and sensitive
information from the appellant in order to determine whether the injury
is linked solely, partially, or not at all to the alleged discriminatory
conduct.