Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionApr 16, 2014
0520130424 (E.E.O.C. Apr. 16, 2014)

0520130424

04-16-2014

Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury, Agency.


Complainant,

v.

Jacob J. Lew,

Secretary,

Department of the Treasury,

Agency.

Request No. 0520130424

Appeal No. 0720110038

Hearing No. 514-2010-00012X

Agency No. MINT090102F

DENIAL

The Agency requested reconsideration of the decision in EEOC Appeal No. 0720110038 (March 26, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c). For the following reasons, the Agency's request for reconsideration is denied.

BACKGROUND

In the appellate decision, Complainant, a Police Officer, at the U.S. Mint in Denver, Colorado, alleged that the Agency subjected him to disparate treatment on the basis of his race (African American) when: (1) on August 27, 2008, management singled him out and confronted him regarding his failure to wear his gas mask; (2) on September 4, 2008, management issued him a proposed three-day suspension regarding the August 27, 2008 incident; (3) on October 15-16, 2008, he was suspended without pay for two days as a result of the August 27, 2008 incident; and (4) the Agency subjected him to a racially hostile work environment based on, but not limited to, the allegations identified in 1-3 above, and also subjected him to racial jokes and misled him regarding the time for filing a reply to the charges.

A hearing was held by an EEOC Administrative Judge (AJ). The AJ issued a decision in June 2011, which found that the Agency had discriminated against Complainant and treated him disparately by issuing the discipline and, also, that the Agency had subjected Complainant to a race-based hostile work environment. The AJ found that Complainant established a prima facie case of discrimination based on race, and that the Agency articulated legitimate, reasons for its actions which were pretexual. Further, the AJ found that there was substantial evidence to support Complainant's claim that he was subjected to hostile work environment harassment. The AJ's order provided a remedy which included back pay and other benefits, expungement of the record regarding the discriminatory personnel actions, nonpecuinary compensatory damages, and attorney's fees and costs. The Agency was also directed to consider taking disciplinary action against the manager involved, and to provide EEO training.

The previous decision affirmed the finding of discrimination. The Commission found that the AJ's finding of race discrimination was supported by substantial evidence in the record and that the AJ properly concluded that Complainant was subjected to a racially hostile work environment. Thereafter, the Agency filed the instant request for reconsideration.

REQUEST FOR RECONSIDERATION CONTENTIONS

The Agency asserts, among other things, that the appellate decision not only interpreted case law erroneously in awarding damages to a Complainant who admits to his misconduct, but also ignores the applicable case law. According to the Agency, while it is well established that a Complainant bears the burden of establishing his damages, the damages awarded in this case were not based on testimony, evidence, or documents; additionally, they were not based on a medical diagnosis. The Agency further maintains that the damages award was not based on a credibility determination, nor was it the result of an interpretation of competing facts. The award, according to the Agency, was based on the AJ's own personal diagnosis that Complainant felt worse than he articulated. Thus, the Agency maintained that the award of damages in this case was baseless and contrary to case law.

Further, the Agency argues that the AJ incorrectly relied on erroneous percentages with respect to Black employees, and those employees who had been subjected to discipline. The Agency argues that mathematical errors cannot equate to factual findings. Moreover, these mathematic mistakes are substantial, in and of themselves, because the AJ used them to paint a false picture of the work environment of the Denver Mint Police in 2008. The Agency asserts that when added to other erroneous interpretations of fact found in the appellate decision, such as changing Complainant's own testimony to support the AJ's findings, it becomes clear that this decision must be reconsidered.

Additionally, the Agency argues that the AJ had an apparent personal bias in favor of the Complainant, and that the facts as presented appeared to more than they were and something that it was not. The Agency argues that even if Complainant was entitled to some damages, the AJ's award of $35,000, was excessive. Moreover, the Agency asserts that some of the comments cited by the AJ to substantiate the hostile work environment were comments made from 15 to 20 years ago.

Finally, the Agency argues that the decision of the Commission does not stand for principles of fairness or equality, but instead rewards Complainant's blatant misconduct and excuses it by pointing to unsubstantiated comments and inaccurate findings of fact. According to the Agency, the EEOC did not require temporal relevance or corroboration and that the appellate decision stands for the proposition that one can pick and choose which rules he or she wants to follow if he or she is able to resurrect, before an EEOC AJ, ancient, unsubstantiated, and irrelevant utterances. A police officer now can be rewarded for disregarding lawful orders from a supervisor in a time of heightened security. The Agency goes on to maintain that the appellate decision paralyzes supervisors, rewards disrespect and sets forth a precedent that can even lead to death.

In response, Complainant contends that the Agency's request for reconsideration is not timely, as the decision was mailed to the parties on March 26, 2013 and the Agency did not file the instant request until May 3, 2013.1 Notwithstanding, Complainant argues that a full hearing was had regarding this matter and credibility determinations were made and Complainant demonstrated that he was subjected to discrimination and a hostile environment. Complainant asserts that the Agency's request should be dismissed because it fails to meet the criteria of the regulations.

Further, Complainant contends that this case has been in the system for a very long time and each and every day that passes is another day in which a discriminatory disciplinary action mars his otherwise unblemished work record and reputation. Complainant requests the Commission resolve the request for reconsideration as quickly as possible so that he can finally have his name cleared and so the Denver Mint Police Department can finally begin correcting the racially hostile environment it has fostered for so long.

ANALYSIS AND FINDINGS

After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The Agency failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. We find that the Agency simply reargues matters previously discussed and decided in the appellate decision. The Commission has long held that a request for reconsideration is not a second chance to reargue the facts or evidence. Further, we find that the Agency has not offered any evidence which shows that Complainant's damages award is excessive, or that the Commission has ever required a medical diagnosis in awarding compensatory damages.2 We find that other than the Agency's own conclusory statements as to why it does not believe that the AJ's decision was correct, it provided no persuasive evidence to support its contention that the previous decision was clearly erroneous. Accordingly, the decision in EEOC Appeal No. 0720110038 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.

ORDER

The Agency is ORDERED to do the following, within one hundred and twenty (120) days of the date this decision becomes final if it has not already done so:

1. Pay Complainant any benefits due him, pursuant to 29 C.F.R. � 1614.501, including back pay in the amount of sixteen (16) hours plus one (1) hour of overtime plus interest for the tune lost as a result of the unlawful suspension. The Agency shall also expunge all records and negative references in Complainant's personnel file and any records relating to discipline issued to Complainant for the events of August 27, 2008. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount.

2. Pay Complainant $35,000.00 in compensatory damages.

3. Pay attorney's fees in the amount of $61,390.15 and costs in the amount of $937.41.

4. The Agency shall consider taking appropriate disciplinary action against the individual referred to as Sgt. A, the person who proposed the suspension. The Commission does not consider training to be disciplinary action. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.

5. Within 90 days of the date on which this decision becomes final, the Agency is directed to conduct eight (8) hours of training on harassment to management and staff at the Denver Mint, (including all management involved in the discipline) regarding Title VII with special emphasis on a hostile work environment and addressing and eliminating a hostile workplace.

The Agency shall submit a report of compliance, as provided in the statement below 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 Complainant and

expungement of Complainant's personnel records.

POSTING ORDER (G0610)

The Agency is ordered to post at the U.S. Mint in Denver, Colorado, 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 m 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 (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, 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.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(l)(iii)), he 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 becomes final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

___4/16/14_______________

Date

1 Based on our review of the record, we find the Agency's request to be timely.

2 Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).

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0520130424

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520130424