07A00016
04-12-2001
Gregory Mitchell, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Gregory Mitchell v. Department of Veterans Affairs
Appeal No. 07A00016
04-12-01
.
Gregory Mitchell,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A00016.
Agency No. 98-0826.
Hearing No. 280-99-4041X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the agency's
appeal from the decision of the Administrative Judge (AJ) in the
above-entitled matter.<1> Complainant filed a complaint in which he
claimed that the agency discriminated against him on the bases of race
(black), religion (Islam) and reprisal by allowing him to be subjected to
harassment by a subordinate. The agency investigated the complaint and
thereafter referred it to an AJ, who issued findings and conclusions in
complainant's favor and ordered relief. Element (2) of the AJ's order
for relief directed the agency to:
A. Issue a letter of reprimand to [the subordinate] admonishing him
for engaging in unlawful racial and religious harassment directed to
complainant; and
Require [the subordinate] to attend sensitivity training on racial and
religious diversity as a condition of his continued employment.
In its final order, the agency agreed with the AJ's findings and
conclusions on the merits. It also agreed to implement the relief
ordered by the AJ, with the exception of element (2). Specifically,
the agency stated:
We disagree with and reject so much of the [AJ's] decision as provides
for the issuance of a letter of reprimand to [the subordinate] and that
individual's attendance in sensitivity training as a condition of his
continued employment with the agency on the grounds that it exceeds
the authorized elements of relief that can be granted by the Commission
pursuant to 29 C.F.R. � 1614.501(a).
Commission regulations state that each agency shall take appropriate
disciplinary action against employees who engage in discriminatory
practices. 29 C.F.R. � 1614.102(a)(6). In promulgating this policy,
the Commission clearly stated that it could not discipline or order the
discipline of employees directly. 52 Fed. Reg. 41920, 41921 (October
30, 1987). Rather, the Commission stated that the requirement of
corrective, curative, or preventative action permits the Commission to
recommend that disciplinary action be considered by the agency. Id. The
Commission reaffirmed this policy in Cassida v. Department of the Army,
EEOC Request No. 05900794 (September 14, 1990), in which it stated that it
could not order an agency to take disciplinary action against a particular
individual, but could order the agency to consider taking disciplinary
action under appropriate circumstances. The implementation of 29
C.F.R. Part 1614 in 1992, and the implementation of the amendments to
Part 1614 in 1999 have not altered the Commission's policy in this regard.
To the extent that element (2) of the AJ's order for relief orders the
agency to take a particular disciplinary action against an individual
employee, that order is inconsistent with 29 C.F.R. � 1614.102(a)(6).
A letter of reprimand is clearly a disciplinary action. The Commission
declines to order the agency to make attendance in the �sensitivity
training� a condition of continued employment with the agency. It is the
agency's responsibility to determine what discipline, if any, should be
imposed if the subordinate employee does not obey its directive. However,
the agency must consider the Commission's recommendation of discipline
and report its decision on whether to discipline to the Commission.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final order.
Regarding element (2), we will modify that portion of the AJ's order so
that the agency will be directed to consider taking disciplinary action
against the subordinate employee responsible for the unlawful harassment.
Similarly, we will order the agency to require the subordinate to attend
sensitivity training, but we will not require the agency to condition the
subordinate's continued employment upon attendance at that training.
The agency will be directed to implement the relief specified in our
order below, and will also be directed to issue a report of compliance.
ORDER (D1199)
To the extent that it has not already done so, the agency shall take the
following remedial action within 60 days of the date that this decision
becomes final:
draft and implement a revised EEO policy statement which addresses and
prohibits not only sexual harassment, but also harassment based upon race,
color, national origin, religion, disability, age, and prior protected
EEO activity.
Consider taking disciplinary action against the subordinate employee
identified as being responsible for the discriminatory harassment
perpetrated against complainant. The agency shall report its decision.
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.
Require the subordinate employee to attend sensitivity training on racial
and religious diversity.
Conduct a training session with all management employees at the John
Cochran Medical Facility which introduces them to the revised EEO policy
statement referenced in item (1) of this order, and which instructs
them on the appropriate methods of handling complaints of discriminatory
harassment in the workplace.
Award complainant compensatory damages in the amount of $1000.00
Reimburse complainant for any costs incurred in the handling of the
instant complaint, or alternatively, provide documentary proof that it had
done so, in accordance with item (5) of the Administrative Judge's order
for relief, set forth on page 46 of the Administrative Judge's decision
dated January 4, 2000. The agency shall determine the appropriate
amount due complainant, pursuant to 29 C.F.R. � 1614.501, no later than
sixty (60) calendar days after the date this decision becomes final.
The complainant shall cooperate in the agency's efforts to compute the
amount due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount due, the
agency shall issue a check to the complainant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due.
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 benefits due complainant, including evidence
that the corrective action has been implemented. The complainant 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."
ATTORNEY'S FEES (H0900)
If complainant 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.
POSTING ORDER (G1092)
The agency is ORDERED to post at the John Cochran Medical Center 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
___04-12-01_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.