07A10098
09-30-2002
Glory A. Howard, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Security Service), Agency.
Glory A. Howard v. Department of Defense
07A10098
September 30, 2002
.
Glory A. Howard,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Security Service),
Agency.
Appeal No. 07A10098
Agency No. DSS-97-035-40-R
Hearing No. 100-99-7315
DECISION
Concurrent with the issuance of its October 19, 2001, final order, the
agency filed a timely appeal which the Commission accepts pursuant to 29
C.F.R. � 1614.405. At all times relevant to this complaint, complainant
was employed by the agency as the Deputy Logistics Management Officer,
GS-346-14, in the Office of Logistics and Administration, Resources
Directorate, Defense Investigative Service (DIS), Headquarters in
Alexandria, Virginia. Complainant filed a formal EEO complaint with the
agency on December 4, 1997, alleging that she was subjected to 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.<1> Specifically,
complainant alleged that she was discriminated against on the bases of
her race (Black), sex (female), and reprisal for prior EEO activity when:
(1) she was issued a letter of reprimand;
she was reassigned to the agency's Linthicum, Maryland center and placed
in the position of Program Analyst; and,
she was maintained at the Linthicum Center after the Defense Clearance
and Investigations (DCI) was transferred to the DSS headquarters in
Alexandria, Virginia.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ issued a decision. The AJ concluded, with
respect to issues one and two, that complainant failed to establish a
prima facie case of reprisal because she failed to demonstrate that she
engaged in prior EEO activity. With respect to the remaining bases,
the AJ found, as to issue one, that complainant established a prima
facie case of race and sex discrimination because an individual, not in
complainant's protected classes, was not given a letter of reprimand under
similar circumstances. The AJ acknowledged that the comparative employee
(C1) was complainant's supervisor, but found that he was nevertheless,
similarly situated to complainant because all relevant aspects of his
work situation were identical to complainant's. The AJ also stated in
a footnote that even assuming, arguendo, that complainant and C1 were
not similarly situated, the fact that the agency did not discipline
C1, a Caucasian, male, higher-level manager with more responsibility
and held to higher standards, creates an inference of discrimination,
sufficient to establish a prima facie case. The AJ then found that the
agency articulated a legitimate, nondiscriminatory reason for its action
by stating that complainant was reprimanded due to her neglect of her
supervisory duties. The AJ concluded that complainant established that
more likely than not, the reason provided by the agency was a pretext
for discrimination. In reaching this conclusion, the AJ found that
complainant and C1 were treated differently despite the fact that they
�engaged in identical inappropriate and unprofessional conduct and
supervision� in failing to take adequate action to ensure that their
employees conducted themselves properly (in a non-sexual manner) at work.
The AJ additionally noted that she found the testimony of the supervisor
(S1) who issued the letter of reprimand to complainant not credible.
Specifically, the AJ found S1's assertion that C1 did not observe the
inappropriate conduct unworthy of belief.
Regarding issue two, the AJ found that complainant established a
prima facie case of race and sex discrimination, because C1 was
not also issued a management-directed reassignment as a result of
the above-noted misconduct, but rather was given the opportunity to
seek a favorable detail outside of the agency. The AJ also found
that the agency articulated legitimate, nondiscriminatory reasons
for complainant's reassignment. Specifically, the reassignment was
based upon the results of the Report of Administrative Inquiry, and
complainant's other �managerial shortcomings.� The AJ found, however,
that C1 was also accused of �serious managerial shortcomings,� as a
result of the administrative inquiry, but was treated more favorably than
complainant. The AJ again noted that she did not find S1's testimony to
be credible. Therefore, the AJ concluded that complainant established,
by a preponderance of the evidence, that the agency's reasons were
pretext for sex and race discrimination.
As to issue three, the AJ found that complainant failed to establish a
prima facie case of reprisal discrimination because she failed to show
that the individual who was responsible for moving the DCII MOA<2> project
was aware of her prior EEO activity. The AJ also found that complainant
failed to establish a prima facie case of sex and race discrimination,
because she failed to show that similarly situated individuals, not in her
protected groups, were treated more favorably under similar circumstances.
The agency's final order declined to implement the AJ's decision.
On appeal, the agency articulates complaints about the AJ's rulings,
both pre-hearing and in the hearing itself. The agency further contends
that the AJ erred by not dismissing the retaliation claim by summary
judgment, and in failing to determine that the issue regarding the letter
of reprimand was moot. The agency disputes the AJ's conclusion that
complainant and C1 are similarly situated, and notes that even assuming,
arguendo, that C1 was similarly situated, C1 was treated far worse for
the same or similar misconduct and he suffered far worse consequences
for his behavior than complainant. The agency also disputes the
compensatory damages award and the attorney fees award. In opposition
to the agency's appeal, complainant restates arguments formerly made,
and contends that the agency is attempting to confuse the record by: a)
referring to a reprimand that C1 received in connection with improper
timekeeping procedures investigated the year before the investigation at
issue in this case; and b) comparing complainant's management-directed
reassignment with C1's reassignment a year later. Complainant does
not dispute the AJ's finding of no discrimination as to issue three,
nor the AJ's decisions as to remedies and awards.
ANALYSIS
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). The allocation of burdens and order of
presentation of proof in a Title VII case alleging disparate treatment
discrimination is a three step procedure: complainant has the initial
burden of proving, by a preponderance of the evidence, a prima facie case
of discrimination; the burden then shifts to the employer to articulate
some legitimate, non-discriminatory reason for its challenged action;
and complainant must then prove, by a preponderance of the evidence, that
the legitimate reason offered by the employer was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
In the instant case, we concur with the AJ's conclusion that complainant
established a prima facie case of sex and race discrimination as to
issues one and two. We also concur that an inference of discrimination
can be drawn from the agency's failure to discipline a Caucasian male,
higher-level manager with more responsibility and subject to higher
standards, but chose to discipline complainant, a Black female, for the
same misconduct. Further, although S1 stated that he was not persuaded
that the alleged inappropriate behavior was �conducted in [C1's] view,�
numerous witnesses testified that C1 observed, and perhaps participated
in, the inappropriate behavior. Moreover, this contradiction contributed
to the AJ's finding that the record does not support the agency's
contentions that C1 was treated far worse for the same or similar
misconduct and he suffered far worse consequences for his behavior than
complainant. We also concur with the AJ's finding, as to issue (3),
that complainant failed to establish a prima facie case of discrimination
on the alleged bases. Therefore, after a careful review of the record,
including the agency's arguments on appeal, complainant's response, and
arguments and evidence not specifically discussed in this decision, the
Commission finds that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
As to the agency's complaints about the AJ's rulings during the course of
the hearing, we note that Administrative Judges have broad discretion in
the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110)
at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000). After a review
of the record, we do not find that the AJ abused her discretion.
Compensatory Damages
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the CRA,
codified as 42 U.S.C. � 1981a, authorizes an award of compensatory damages
as part of the �make whole� relief for intentional discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in Enforcement
Guidance: Compensatory and Punitive Damages Available Under � 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992)
(Guidance). Briefly stated, the complainant must submit evidence to
show that the agency's discriminatory conduct directly or proximately
caused the losses for which damages are sought. Id. at 11-12, 14; Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994) aff'd,
EEOC Request No. 05940927 (December 11, 1995). The amount awarded should
reflect the extent to which the agency's discriminatory action directly
of proximately caused harm to the complainant and the extent to which
other factors may have played a part. Guidance at 11-12. The amount of
non-pecuniary damages should also reflect the nature and severity of the
harm to complainant, and the duration or expected duration of the harm.
Id. at 14.
In Carle v. Department of the Navy, the Commission explained that evidence
of non-pecuniary damages could include a statement by the complainant
explaining how he or she was affected by the discrimination. EEOC Appeal
No. 01922369 (January 5, 1993). Statements from others, including family
members, friends, and health care providers could address the outward
manifestations of the impact of the discrimination on the complainant.
Id. The complainant could also submit documentation of medical or
psychiatric treatment related to the effects of the discrimination.
Id. Non-pecuniary damages must be limited to the sums necessary to
compensate the injured party for the actual harm and should take into
account the severity of the harm and the length of time the injured party
has suffered from the harm. Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995).
After considering the hearing transcript, the record of investigation,
complainant's response to Notice of Summary Judgment, complainant's
declaration, and complainant's deposition, the AJ determined that $10,000
was appropriate. In so finding, the AJ noted complainant's testimony
that her professional reputation was harmed, and that she was physically
and socially isolated from her co-workers and new supervisor. The AJ also
noted complainant's testimony about being �devastated� and �humiliated� to
be told that the agency had lost confidence in her managerial abilities,
as well as to be reassigned to a position where she would sit around
and do nothing, and constantly had to ask for more work. The agency
argues that $10,000 for non-pecuniary damages is excessive, citing
Haskins v. Department of Defense, EEOC Appeal No. 01A05396 (March 30,
2001), where the complainant was awarded $4,000 for non-pecuniary damages
suffered because of a reprimand. That case is distinguishable, however,
from the instant case in that here complainant was both reprimanded
and reassigned. Further, the duration and severity of the harm suffered
render this award within the realm of reasonable. Therefore, we conclude
that $10,000 is adequate, and not excessive, to compensate complainant.
Attorneys Fees
On appeal, the agency also disputes the AJ's award of attorney's fees,
and argues that the award should be reduced because retaliation was
a fourth issue as to which complainant failed to present sufficient
evidence in response to the Notice of Summary Judgment and at the hearing.
Complainant did not challenge the award. We find that the agency's
logic is misguided in that retaliation was not a fourth issue, but was
an alleged basis of discrimination. Therefore, we concur with AJ's
award of attorney's fees in the amount of $23,223.33.
CONCLUSION
We concur with the AJ's finding of discrimination and order of relief.
The Commission REVERSES the agency's final action of October 19, 2001 and
REMANDS the matter to the agency to take remedial actions in accordance
with this decision and the ORDER below.
ORDER
Within 60 days from the date of this decision, the agency is ordered to:
pay compensatory damages to complainant in the amount of $10,000;
pay attorney's fees in the amount of $23,223.33;
pay costs in the amount of $575.96;
provide 10 hours of training to all the management officials responsible
for this matter in their duties and obligations under Title VII; and,
post the attached notice in a place where employees regularly gather
at the Office of Logistics and Administration, Resources Directorate,
Defense Investigative Service (DIS), Headquarters in Alexandria, Virginia,
which informs employees that the agency will not discriminate on the basis
of race or sex. This notice shall remain posted for a period of 90 days.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (KO501)
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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii), 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 (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 (S0900)
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. 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 (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
September 30, 2002
__________________
Date
1 The record reveals that complainant also
initially alleged age as a basis of discrimination, however, she withdrew
this basis prior to the administrative hearing.
2 DCII MOA refers to Memorandum of Understandings for the Defense Criminal
Investigations Index System.