01975573
11-25-1998
Delisa M. Johnson, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Delisa M. Johnson v. Department of the Navy
01975573
November 25, 1998
Delisa M. Johnson, )
Appellant, )
) Appeal No. 01975573
v. ) Agency No. 94-67001-018
) Hearing No. 140-95-8075X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (Black), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. The appeal is accepted in accordance with EEOC Order
No. 960.001.<1> For the following reasons, the agency's decision is
AFFIRMED in part and REVERSED in part.
The issues on appeal (and as set forth in the FAD) are:
whether appellant was harassed by her immediate supervisor (S1) when:
S1 showed biased treatment in the distribution of work assignments and
supervision of employees;
S1 purposefully did not provide appellant with clear instructions when
assigning work for her to perform;
S1 admonished and demeaned appellant in front of other employees when
discussing work related problems;
S1 asked other clerks to perform tasks by stating. "Will you please,"
et cetera; however, when asking appellant to perform a task, she would
state words such as "Here, I will let you do this," et cetera;
S1 talked to appellant in a loud and hostile manner;
S1 purposefully interrupted appellant's conversations regardless of whom
she was speaking to at the time;
S1 followed appellant around, even to the bathroom;
S1 gave appellant's new assignments to the other clerk when appellant
was not there in order to avoid conversing with appellant, and this
resulted in appellant not receiving the new assignment[s]; and
S1 talked to appellant in a loud and demeaning manner when she realized
that appellant was going to see the EEO Officer at the EEO office and
ordered appellant to state exactly how long she would be there.
Appellant was denied the opportunity to work or be assigned to the front
desk.
The record reveals that during the relevant time, appellant was employed
as an NF-3 Personnel Action Assistant in the employment section of
the Non-Appropriated Fund Personnel Office at the Marine Corps Base,
Camp Lejeune, Jacksonville, North Carolina. Between July of 1992 and
April of 1994, appellant alleged that S1's acts, as set forth above,
constituted harassment and discrimination based on race. Believing she
was a victim of harassment and discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on June 16, 1994.
At the conclusion of the investigation, appellant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued his Recommended Decision
(RD).
The AJ concluded that more likely than not, S1's conduct toward
appellant respecting some of the specific instances set forth in issue
(1) were motivated by racial animus.<2> In reaching this conclusion,
the AJ discredited much of S1's testimony. The AJ found incredible S1's
explanation that she did not realize she was following appellant around,
and if she did, it was unintentional; and noted that it is impossible
to "unintentionally" follow someone to the bathroom. While the AJ
acknowledged evidence in the record that S1 treated others poorly,
the AJ credited the testimony of appellant and other witnesses that
appellant was harassed more than other employees. Noting the existence
of racial comments in the office (e.g., "vanilla is the flavor of the
month") and the fact that the vast majority of employees, including
S1, were White, the AJ concluded that racial animosity contributed to
the harassment appellant experienced at the hands of S1. The AJ then
concluded that respecting issue (2), appellant failed to demonstrate
that she was treated differently on account of her race when she was
not assigned to work the front desk. The AJ found that S1 recommended
appellant for front desk duty, and it was S1's supervisor who decided
not to assign appellant to the front desk. As relief, the AJ ordered,
among other things, applicable curative actions such as training, and
the expungement of a formal letter of warning appellant received during
the period she was experiencing racial harassment.
The agency's FAD adopted the findings of the AJ respecting issue (2),
and rejected the AJ's findings of harassment based on race as set forth in
issue (1). The FAD instead found that the evidence supported a conclusion
that S1 treated everyone in the office poorly and that appellant was
not singled out for poor treatment because of her race. On appeal,
appellant contends that the AJ's RD properly analyzed the record evidence,
and further, requests compensatory damages. The agency stands on its
own assessment of the record and requests that the Commission affirm
its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that there is
ample evidence in the record with which to support a conclusion that
appellant was harassed more than her co-workers, and that the harassment
was racially motivated.<3> We also agree with the AJ's conclusion,
as adopted by the FAD, that appellant failed to demonstrate that more
likely than not, the decision to not assign her front desk duty was
racially motivated. We therefore discern no basis to disturb the AJ's
findings of discrimination which were based on a detailed assessment of
the credibility of the witnesses. See Anderson v. Bessemer City, 470
U.S. 564, 575 (1985); Saramma v. Department of Veterans Affairs, EEOC
Request No. 05930131 (September 2, 1993); Wrenn v. Gould, 808 F.2d 493,
499 (6th Cir. 1987). Therefore, after a careful review of the record,
including appellant's arguments on appeal, the agency's response, and
arguments and evidence not specifically discussed in this decision,
the Commission AFFIRMS the agency's conclusion that appellant was not
discriminated against when denied the front desk duty, and REVERSES the
FAD's conclusion that appellant was not subjected to harassment based on
race by S1. We REMAND the matter to the agency to take remedial actions
in accordance with this decision and the Order below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. The agency shall expunge and destroy the letter of admonishment dated
November 8, 1993, from her personnel file and from any other official
agency file respecting appellant.
The agency shall take appropriate preventative steps to ensure that no
employee is subjected to harassment based on race or any other basis
protected under EEO law, and to ensure that appropriate steps are taken
immediately after management is notified of any such harassment to
promptly investigate and remedy and alleged unlawful acts of harassment.
In the event that S1 is still employed by the agency, the agency shall
provide a minimum of sixteen (16) hours of EEO sensitivity training with
respect to Title VII and the law of harassment.
The agency shall ensure that acts of harassment do not recur, that no
retaliatory acts are taken against any employee who opposes unlawful
discrimination, including harassment, and that persons reporting instances
of alleged harassment are treated in an appropriate manner.
The agency shall conduct a supplemental investigation on the issue
of appellant's entitlement to compensatory damages and shall afford
appellant an opportunity to establish a causal relationship between the
incident of harassment and any pecuniary or non-pecuniary losses.<4>
See, Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January
5, 1993).<5> The appellant shall cooperate in the agency's efforts
to compute the amount of compensatory damages, and shall provide all
relevant information requested by the agency. The agency shall issue a
final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110.
The supplemental investigation and issuance of the final decision shall
be completed within one hundred and twenty (120) calendar days of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below;
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 appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Marine Corps Base, Camp Lejeune,
Jacksonville, North Carolina, 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 (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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 (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 AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 25, 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 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 agency's Non-Appropriated Fund
Personnel Office at the Marine Corps Base, Camp Lejeune, Jacksonville,
North Carolina (hereinafter "Marine Corps").
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 Marine Corps supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The Marine Corps was found to have unlawfully harassed the individual
affected by the Commission's findings on the basis of race. The agency
shall therefore remedy the discrimination by providing the affected
individual with proven compensatory damages, expunging a letter of
warning, providing relevant training to appropriate management officials
on equal employment opportunity law in the federal workplace, and taking
other curative actions to ensure that allegations of harassment are
promptly investigated and addressed. The Marine Corps 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.
The Marine Corps 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 We note that this decision is being decided in conjunction with a
companion case, Delisa Johnson v. Department of the Navy, EEOC Appeal
No. 01982397 (to be issued simultaneously with this decision).
2 We note, as did the FAD, that the AJ did not specify which acts were
or were not racially motivated, but instead concluded generally that
appellant was a victim of harassment based on race.
3 Although the AJ did not set forth the applicable legal standard to
analyze an allegation of harassment based on race, we agree with the
AJ's findings of fact, and note that the agency set forth the applicable
legal standard in its FAD.
4 We note that a complainant may raise compensatory damages at any time
during the administrative process, up to and including the appeal stage,
but not thereafter. Kyriazi v. Department of Defense, EEOC Request
No. 05930086 (March 4, 1994).
5 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. � 2000(e)
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 reaffirms the holding therein. See Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998).