01974396
11-24-1998
Howard Tripp, Appellant, v. F. Whitten Peters, Secretary, Department of the Air Force, (Kelly Air Force Base) Agency.
Howard Tripp v. Department of the Air Force
01974396
November 24, 1998
Howard Tripp, )
Appellant, )
) Appeal No. 01974396
v. ) Agency No. KHOF900222
) Hearing No. 360-96-8566X
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
(Kelly Air Force Base) )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of color (black), race (Black),
reprisal (prior EEO activity), and age (59), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. Appellant alleges he was discriminated against
when: (1) On October 22, 1989, he was decertified as a Team chief and
demoted to a lower grade to a WG-2604-12 Electronics Mechanic for failure
to satisfactorily complete a supervisory probation period, and (2) he was
forced to retire from federal service on February 3, 1990. The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is AFFIRMED in part and REVERSED in part.
The record reveals that just prior to the above-alleged acts of
discrimination, appellant had been promoted to a WS-2604-09 Electronics
Mechanic Foreman at Kelly Air Force Base, Texas. Almost immediately
following his promotion, the agency demoted him to his previous
Electronics Mechanic position and assigned him menial and demeaning
tasks until appellant retired from federal service on February 3, 1990.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on January
31, 1990. Following a series of decisions by the Merit Systems
Protection Board, appellant's allegations were first addressed by the
Commission in April of 1994, wherein we determined that appellant's
complaint was no longer a "mixed case" complaint, and that it should
proceed through the EEO process as set forth in 29 C.F.R. part 1614.
See Tripp v. Department of the Air Force, EEOC Appeal No. 03940035
(April 18, 1994). Ultimately the case proceeded to a hearing before
an EEOC Administrative Judge (AJ). Following a hearing, the AJ issued
a Recommended Decision (RD) finding discrimination. The AJ concluded
that appellant established a prima facie case of age, race and color
discrimination, though not reprisal.<1> The AJ then concluded that the
agency's articulated reasons for its actions were unworthy of credence
and that more likely than not, discriminatory animus motivated the
agency's actions.<2> The AJ also concluded that the agency's actions
directly caused appellant's retirement from federal service.
As remedy for the discrimination, the AJ ordered, among other things,
"full-relief, as explained in 29 C.F.R. � 1614.501," and compensatory
damages flowing from the acts of discrimination. The agency's FAD did
not adopt the AJ's RD, and instead concluded that appellant failed
to demonstrate that more likely than not, the agency's actions were
motivated by discriminatory animus. On appeal, appellant contends,
among other things, that the agency's FAD was not issued timely, and
the AJ's RD should therefore be reinstated. The agency argues that
its FAD correctly analyzed applicable EEO law, and should be affirmed.
The agency did not explain or rebut appellant's contention that its FAD
was untimely under 29 C.F.R. � 1614.110.
After a careful review of the record, the Commission first notes that the
agency admitted receiving the AJ's RD on February 14, 1997. As appellant
correctly noted on appeal, the agency's FAD was issued on April 21,
1997, more than sixty days from the agency's receipt of the AJ's RD.
As provided by 29 C.F.R. � 1614.110, an agency has sixty days to issue
its FAD following receipt of an AJ's RD. Because the agency failed to
issue its FAD within the sixty day time period provided by 29 C.F.R. �
1614.110, the AJ's RD becomes the final decision of the agency pursuant
to 29 C.F.R. � 1614.109(g).
Notwithstanding the above, we also note that the AJ's RD summarized the
relevant facts and referenced the appropriate regulations, policies, and
laws.<3> We therefore discern no basis to disturb the AJ's findings of
discrimination which were based on a detailed assessment of the record
and 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 FAD's conclusion that appellant was not
discriminated against on the basis of reprisal, and REVERSES the FAD
to the extent that it concluded that appellant was not discriminated
against on the basis of race, color and age. 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 retroactively reinstate appellant to an Electronics
Mechanic Foreman, WS-2604-09, or a substantially equivalent position
should such a position no longer exist at Kelly Air Force Base, effective
October 22, 1989, the date he was demoted from the Electronics Mechanic
Foreman position. Appellant shall also be awarded back pay from October
22, 1989, until the day appellant either returns to work for the agency,
or turns down an offer of employment from the agency. Appellant shall
also receive applicable seniority, within grade increases, cost of
living increases, restoration of vacation and sick leave, and other
leave benefits, and other employee benefits (including any required
re-calculation of pension and other retirement benefits) from the
relevant dates appellant is retroactively reinstated.<4>
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) 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.<5> The appellant shall cooperate in
the agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the appellant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The 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."
2.2. To the extent that any of the responsible management officials
are still employed with the agency, the agency is directed to conduct
training for such management officials. The agency shall address these
employees' responsibilities with respect to eliminating discrimination
in the workplace.
3. 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 Kelly Air Force Base, 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.
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 24, 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. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. has occurred at
Kelly Air Force Base, Texas (hereinafter "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 facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the bases of race
(Black), color (black) and age (59), after unlawfully demoting and
forcing this individual to retire. The agency shall therefore remedy
the discrimination by reinstating his employment retroactive to October
22, 1989, the date he was demoted, providing him with back pay (and
applicable interest), from October 22, 1989, until the date he either
recommences employment with the agency, or turns down an offer of
employment with the agency; restoring and providing applicable benefits
(including any required recalculation of pension and other retirement
benefits); and providing training on equal employment opportunity
law in the federal workplace to relevant management officials who
are still employed with the agency. The facility 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 facility 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 The Commission notes that while the agency disagreed with the AJ's
analysis respecting the reprisal allegation, it did agree, ultimately,
that no unlawful reprisal occurred.
2 We note that the relevant facts and analysis are adequately set forth
in the AJ's RD, and will not be repeated verbatim herein.
3 We note that although the AJ recommended that appellant receive
compensatory damages, the Commission has held that a complainant is
not entitled to compensatory damages for discriminatory agency actions
occurring prior to November 21, 1991, the effective date of the Civil
Rights Act of 1991. See Kalra v. Department of Transportation, EEOC
Request No. 05940516 (May 31, 1996); Landgraf v. USI Film Products,
114 S. Ct. 1483 (1994).
4 Due to the age of this case, and to the extent the agency is able to
do so, the Commission recommends that the agency expedite the remedy
ordered herein to provide appellant the remedy due him.
5 We remind both parties that appellant is entitled to such interest
on his back pay award only for the time period following the November
21, 1991, effective date of � 114 of the Civil Rights Act of 1991,
(Pub. L. No. 102-166, 105 Stat. 1071, 1079(1991)), which authorized
such interest awards. See Kalra v. Department of Transportation, EEOC
Request No. 05940516 (May 31, 1996).