01990767
10-03-2001
Clyde Christian, Jr., Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Clyde Christian, Jr. v. Department of the Treasury
01990767
October 3, 2001
.
Clyde Christian, Jr.,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01990767
Agency Nos. 96-4202, 96-4017, 95-4135, 95-4100
Hearing Nos. 320-96-8080X, 320-96-8081X, 320-96-8278X, 320-97-8161X
DECISION
Clyde Christian, Jr. (Complainant) timely initiated an appeal from the
agency's final decision (FAD) concerning his equal employment opportunity
(EEO) complaint of unlawful discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant filed several complaints, which were
consolidated for a hearing before an Administrative Judge.
In Agency Nos. 95-4100 and 95-4135 complainant alleges that he was
discriminated against on the bases of race/color (Black), sex (male),
age (52 at the relevant time) and subjected to retaliation for prior
EEO activity (unspecified)<1> when:
(1) the agency continually failed to provide him with details and
development assignments;
his request to transfer to the Quality Assurance group was denied;
on November 17, 1994, a case error he made was discussed in front of
co-workers; and
on November 22, 1994, his supervisor (SO) physically threatened him;
In Agency No. 96-4017 and, complainant alleges that he was discriminated
against on the bases of race/color, sex, and age and subjected to
retaliation for prior EEO activity when:
he was not selected for the position of Taxpayer Service
Representative/BITC/ Contact representative on October 5, 1995;
he was not selected for the position of Fiscal Administrative Specialist
on August 7, 1995. 7
In Agency No. 96-4202, complainant alleges that he was discriminated
against on the bases of race/color, sex, and age and subjected to
retaliation for prior EEO activity when:
on May 31, 1996, he was ordered to leave the Disclosure office and told
he would be disciplined for an incident that occurred there; and
the agency failed to consider him for a detail to the Disclosure office
on June 4, 1996.
BACKGROUND
The record reveals that complainant, a Taxpayer Service Representative
at the agency's Denver, Colorado facility, filed formal EEO complaints
with the agency on July 23, 1996, April 25, 1995, and October 17, 1995,
alleging that the agency had discriminated against him as referenced
above.
At the conclusion of the various investigations, complainant was provided
a copy of the investigative reports and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination in regard to issues (1)-(3), (5)-
(8), and a portion of issue (4), but also found that complainant was
subjected to retaliation in regard to issue (4).
In analyzing issues (1)-(3), (5)-(8) and a portion of issue (4),
the AJ determined that although complainant established a prima facie
case of discrimination and/or retaliation in regard to certain issues,
complainant failed to prove by a preponderance of the evidence that he
was subjected to discrimination or retaliation.
The AJ also determined, however, that in regard to the remaining portion
of issue (4), complainant established that he was subjected to retaliation
when his supervisor (SO) physically threatened him during a meeting
between SO, complainant, and complainant's union representative. The AJ
found that SO was angry because he thought complainant might file an EEO
complaint and began the meeting by demanding complainant not make it a
�black-white� issue, eventually becoming physically threatening. The AJ
concluded that SO was attempting to intimidate and coerce complainant into
not filing an EEO complaint. The AJ noted that attempting to pressure a
complainant into dropping or not filing an EEO complaint has a chilling
effect on employees' rights to engage in EEO activities and concluded
that complainant established by a preponderance of the evidence that he
was the victim of unlawful reprisal.
The agency's final decision adopted the AJ's findings of no
discrimination on issues (1)-(3), (5)-(8), and the race/color, sex,
and age discrimination portions of issue (4)<2> and rejected the AJ's
finding of retaliation in regard to issue (4).
In rejecting the AJ's discrimination finding, the agency noted that SO did
not state that he thought complainant was going to file an EEO complaint.
The agency also noted that complainant did not testify that SO referred
to EEO complaints during the meeting. In regard to the testimony of the
union representative (UR), the agency noted that it, standing alone, was
insufficient to establish that SO believed complainant was going to file
an EEO complaint. The agency argued that UR's testimony on this issue was
inconsistent and based only on her perception. The agency then noted that
the evidence did not support the conclusion that SO acted in a physically
intimidating manner, noting that SO never touched complainant or UR.
On appeal, complainant asks that the AJ's decision in his favor be
restored. He contends that the AJ did not err when he concluded that SO's
actions were based upon his belief that complainant was going to file an
EEO complaint. Complainant notes that the AJ properly determined that
complainant should be awarded attorney's fees and costs. Complainant does
not provide any argument that the AJ's finding of no discrimination was
improper, although he does assert that the AJ's award of compensatory
damages was insufficient.<3>
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. In regard to the AJ's finding of
no discrimination on issues (1)-(3), (5)-(8), and a portion of issue
(4), we note that on several of those issues, complainant failed to
establish a prima facie case. For example, in regard to issue (8),
complainant did not apply for the detail in question. Similarly, turning
to issue (3), it is undisputed that a group of employees determined that
everyone's errors would be discussed in public, as a learning experience.
Complainant did not present any evidence to suggest that he was treated
differently than any other employee in this regard. Moreover, even on
those issues where complainant established a prima facie case, he failed
to present sufficient evidence to overcome the agency's legitimate,
non-discriminatory reasons. We discern no basis to disturb the AJ's
finding of no discrimination. Therefore, after a careful review of the
record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision as it relates to issues
(1)-(3), (5)-(8), and a portion of issue (4).
Turning to the AJ's finding of retaliation, we, again, discern no basis to
disturb the AJ's decision. The AJ correctly noted that where a supervisor
acts to chill an employee's right to engage in EEO activities, by, for
example, threatening or otherwise coercing them, Title VII is violated.
See EEOC Compliance Manual, Section 8, �Retaliation,� No. 915-003 (May 20,
1998). The AJ determined that SO believed that complainant was going to
file an EEO complaint and was angered by this belief. This determination
is based on the testimonial evidence of UR which the AJ found credible.
It is supported by substantial evidence in that UR testified during the
hearing that SO mentioned rumors that complainant was going to file a
complaint and that he became extremely angry during the meeting revolving,
at least in part, around the possibility of complainant asserting his
EEO rights. Moreover, the AJ's finding that SO attempted to intimidate
complainant so that he would not file an EEO complaint is also based
on substantial evidence. UR testified that when she terminated the
meeting because it was becoming too heated, SO approached complainant in
what she perceived to be a threatening manner, so threatening, in fact,
that she stepped between complainant and SO and told complainant to leave.
The agency's decision to reject the AJ's finding of discrimination is
based on its determination that the testimony of SO is more credible than
that of UR and complainant. We note, however, that an AJ's credibility
findings reached after a hearing are entitled to significant weight.
See Universal Camera Corp., supra; see also Wolverton v. Department of
the Defense, EEOC Appeal No. 01976409 (September 21, 2000). Accordingly,
we AFFIRM the AJ's finding that complainant was subjected to retaliation
when SO, angered at the prospect of complainant filing an EEO complaint,
threatened him.
We note that the AJ went on to conclude that complainant established that
he suffered harm due to the agency's discriminatory action in the form of
minor emotional upset. The AJ determined that complainant is therefore
entitled to recover pecuniary and nonpecuniary compensatory damages in
an amount sufficient to make him whole for the harm he suffered. The AJ
determined that $500.00 was a reasonable amount to compensate complainant.
On appeal, complainant asserts that this amount is not reasonable and
notes that the AJ is not a medical expert. He asks that this portion
of the decision be reviewed after the opinions of �practitioners in the
related medical fields� are gathered. A review of the hearing testimony
reveals that, at the agency's request, the hearing was bifurcated so that
no evidence about compensatory damages would be heard unless necessary.
It appears that after the four day hearing on the issue of liability,
no further evidence on the issue of damages was taken. As complainant
was therefore not given sufficient opportunity to provide evidence on
this point, the issue of compensatory damages must be remanded.
After a careful review of the record, including complainant's arguments on
appeal, the agency's response, and arguments and evidence not specifically
discussed in this decision, the Commission AFFIRMS the agency's final
decision as to issues (1)-(3), (5)-(8), and a portion of issue (4).
The Commission REVERSES the agency's final decision as to the retaliation
portion of issue (4) and REMANDS the matter to the agency to take remedial
actions in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial actions:
The agency shall provide appropriate EEO training for SO. This training
shall include information on the law prohibiting retaliation.
The agency shall post the attached notice, as set forth below.
The issue of compensatory damages is REMANDED to the Hearings Unit of
the Denver District Office. The agency is directed to submit a copy
of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that complaint file have been transmitted to the
Hearings Unit. Thereafter, the Administrative Judge must be assigned
in an expeditious manner to further process the issue of compensatory
damages in accordance with the regulations.
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 (G0900)
The agency is ordered to post at its Denver, Colorado 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.
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 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must 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 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 (R0900)
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 (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
October 3, 2001
Date
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 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 at the Department of the Treasury,
Internal Revenue Service, Denver, Colorado facility (hereinafter
�facility�).
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 DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have retaliated against an employee when a
management official threatened him in an attempt to prevent him from
filing an EEO complaint. The agency was therefore ordered to (1) provide
training to the responsible management official, with an emphasis on
the law prohibiting retaliation; (2) pay proven compensatory damages;
(5) pay proven attorney's fees and costs; and (2) post this notice.
The facility 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:
1 The AJ noted that this basis was added by the investigator, with
complainant's agreement.
2 It appears that the AJ neglected to specifically note that he was
finding no race/color, sex or age discrimination in regard to issue
(4). However, given the wording of the AJ's decision and his finding
that complainant SO's threatening behavior violated Title VII because
it was an attempt, through intimidation, to dissuade complainant from
filing an EEO complaint, the agency's determination that the AJ found
no discrimination on the other claimed bases was proper.
3 Complainant also contends that, prior to the hearing, the agency
improperly dismissed certain issues that relate to those now before us.
We note, however, that it was established at the hearing that complainant
failed to appeal the dismissal of these issues in a timely manner.
The only issues before this Commission, therefore, are those outlined
above.