01982251
02-26-1999
Deborah A. Davis, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Deborah A. Davis v. Department of Veterans Affairs
01982251
February 26, 1999
Deborah A. Davis, )
Appellant, ) Appeal No. 01982251
) Agency No. 95-0726
v. ) Hearing No. 310-97-5126X
)
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs,)
Agency. )
_______________________________)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency (FAD) concerning
her allegation that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
The issue presented is whether appellant proved, by a preponderance of
the evidence, that she was discriminated against in reprisal for her
prior EEO activity when her position was not upgraded from Social Work
Aid to Social Work Associate on December 5, 1994.
On appeal, appellant contends that the decision of the EEOC Administrative
Judge (AJ) finding discrimination is fully supported by the record and
the case law cited therein.<1> The agency contends that its FAD finding
no discrimination is correct and requests that it be affirmed.
At the time of her complaint, appellant was employed by the agency as
a Social Work Aid in the Social Work Service at the agency's Temple,
Texas Medical Center. Believing that she was a victim of discrimination,
appellant sought EEO counseling and later filed a formal EEO complaint
dated December 21, 1994, wherein she alleged that she had been
discriminated against based on race, color, sex and in reprisal for
prior EEO activity when the Acting Chief of the Social Work Service
decided not to upgrade her position to Social Work Associate after she
completed her college degree.
The agency complied with all procedural and regulatory prerequisites,
and on October 6, 1997, the EEOC Administrative Judge (AJ) issued
a Recommended Decision (RD) finding discrimination based on reprisal
in the failure to upgrade appellant's Social Work Aid position to the
Associate level.
Subsequently, the agency, in its final agency decision (FAD), found
that the AJ erred in finding that appellant's former supervisor (S1)
was the de facto decision maker in the denial of appellant's upgrade and
in finding that S1's feelings concerning appellant's complaints against
her colored her recommendations. The agency asserted that there was no
guarantee that appellant's position would have been upgraded even if
the AH had recommended the upgrade. Appellant now appeals the FAD.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced
the appropriate regulations, policies and laws. We therefore discern no
basis to disturb the AJ's finding of reprisal discrimination.
In this regard, the AJ found that appellant's former supervisor and the
target of a prior EEO complaint by appellant (S1), effectively made the
decision to deny appellant an upgrade, based upon her advice to the
Acting Chief of the Social Work Service (AC) that it would be better
to instead fund a Social Worker position which would require a Master's
Degree. The AJ further held that the AC relied upon this advice to deny
appellant the upgrade because of his inexperience in the position, and
found that the advice was tainted by S1's retaliatory motivation toward
appellant. In support of this assessment, the AJ noted that S1 had made
it clear in her investigative affidavit that she viewed appellant's
complaints against her as harassment and that she had strong negative
feelings about appellant's use of the EEO process against her. The AJ
also found indicative of retaliatory animus, S1's unsolicited statement
to the AC that appellant had previously had difficulties with the former
Chief of the Social Work Service, against whom appellant had also filed
previous complaints.
Thus, we concur with the finding of the AJ that the agency's reason
for denying appellant the subject upgrade was proven to be a pretext
for reprisal discrimination. See Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd.,
545 F.2d 222 (1st Cir. 1976).
We now address the remedy recommended by the AJ in this case. The AJ
properly found that while a backpay award was warranted, that award was
properly terminated as of the date of appellant's apparently voluntary
resignation from agency employment.<2> The AJ also properly recommended
that appellant be reimbursed for the reasonable costs (travel, lodging,
and meal expenses associated with her trip to Texas to attend the hearing)
incurred in pursuit of the EEO complaint herein. See Bush v. Department
of the Army, EEOC Petition No. 04960020 (January 24, 1997); Carter
v. Small Business Administration, EEOC Request No. 05910161 (March 25,
1991). We reiterate that item of relief in our order below.
With respect to appellant's claim for compensatory damages, which the AJ
denied based on an assessment that much of the harm for which appellant
claimed compensation (a divorce, financial problems, emotional distress)
occurred as a result of her voluntary resignation from agency employment,
we find that the brief testimony taken from appellant on the damages
issue indicates that appellant stated her belief that the denial of
her upgrade caused her emotional distress and contributed to her other
difficulties. Specifically she testified to the stress that she had
been under since she had been placed in the social work position and
claimed that the rejection she faced in the workplace, which included
the events at issue, contributed to the marital problems, stress and
despair she experienced. Hearing Transcript (H.T. 10-11, 14-15, Vol. 2).
Since it is our assessment that neither appellant's testimony nor the
remainder of the record indicate that she was clearly placed on notice
of her obligation to present objective evidence to support her claim for
compensatory damages, we will order the agency to conduct a supplemental
investigation and issue a final agency decision on this issue. Appellant
is advised, however, of her obligation on remand to demonstrate that she
has been harmed as a result of the agency's discriminatory action; the
extent, nature, and severity of the harm; and the duration or expected
duration of the harm. Rivera v. Department of the Navy, EEOC Appeal
No. 01934156 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (December 11, 1995); Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992).
Accordingly, after careful review of the entire record, including
arguments and evidence not specifically addressed in this decision, it
is the decision of the EEOC to REVERSE the agency's final decision in
this matter. The complaint is hereby REMANDED to the agency for further
processing in accordance with this decision, the following Order, and
the subsequent paragraphs preceding the Statement of Rights on Appeal.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) The agency shall award appellant the difference in pay between the
Social Work Aid position she held and the Social Work Associate position,
from December 5, 1994 until the effective date of her resignation from
agency employment. The agency shall determine the appropriate amount
of backpay, interest, and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. Appellant shall cooperate in the agency's
efforts to compute the amount of backpay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of backpay and/or benefits,
the agency shall issue a check to appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. Appellant 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."
(2) The agency shall conduct a supplemental investigation pertaining to
appellant's entitlement to compensatory damages. The agency shall afford
appellant sixty (60) days to submit additional evidence in support
of her claim for compensatory damages.<3> Within thirty (30) days of
its receipt of appellant's evidence, the agency shall issue a final
decision determining appellant's entitlement to compensatory damages,
together with appropriate appeal rights. A copy of the final decision
must be submitted to the Compliance Officer, as referenced below.
(3) The agency shall post at its Medical Center in Temple, 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 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.
(4) The agency shall afford EEO sensitivity training to the AC and S1.
(5) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall solicit from appellant an accounting of all costs
associated with the prosecution of this complaint. Within thirty days
of receipt of that information from appellant, the agency shall issue
her a check reimbursing her for all reasonable costs.
(6) 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 backpay and other benefits due appellant,
including evidence that the corrective action has been implemented.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (Q0993)
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 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 (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:
Feb 26, 1999
______________
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 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 this 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Department of Veterans Affairs, Temple, Texas, Medical Center,
shall comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The Department of Veterans Affairs, Temple, Texas, Medical Center,
has offered back pay, will provide training to agency officials, and
will conduct a supplemental investigation into potential compensatory
damages. The Department of Veterans Affairs, Temple, Texas, Medical
Center, will ensure that agency officials responsible for personnel
decisions will abide by the requirements of all Federal equal employment
opportunity laws.
The Department of Veterans Affairs, Temple, Texas, 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
1Since appellant does not challenge the AJ's finding of no discrimination
with regard to the bases of race, color, and sex, which were adopted by
the agency in its FAD, we do not address these holdings herein.
2While appellant asserted that she resigned due to the agency's
discriminatory failure to upgrade her position, there is no indication
that appellant filed a constructive discharge claim, thus precluding
the Commission from addressing the issue herein. Absent a finding of
constructive discharge, appellant is not entitled to reinstatement as
part of her "make whole" relief. Therefore, her back pay award will
terminate as of the date of her resignation. See Stokes v. SSA, EEOC
Petition No. 04960025 (August 21, 1997).
3See, e.g., Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993); Benton v. Department of Defense, EEOC Appeal No.
01932422 (December 10, 1993).