01974406
11-24-1998
Marlene M. Jordan, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Marlene M. Jordan v. Department of the Army
01974406
November 24, 1998
Marlene M. Jordan, )
Appellant, )
) Appeal No. 01974406
v. ) Agency No. BODVF09503F0100
) Hearing No. 380-96-8063X
Louis Caldera, )
Secretary, )
Department of the Army, )
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 bases of color (light skin), national
origin (Dominican), race (Black), and sex (female), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. Appellant alleges she was discriminated against when:
(1) her supervisor, the Equal Employment Opportunity Manager (Mr. H)
denied her a performance cash award or quality step increase, despite
receiving an exceptional performance appraisal, for the rating period
July 1, 1993, through June 30, 1994; and (2) she was subjected to a
hostile environment on the above-referenced bases by Mr. H. The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is REVERSED AND REMANDED.
The record reveals that during the relevant time, appellant was employed
as a GS-318-05 Secretary, to Mr. H., at the agency's Fort Lewis EEO
Office, Fort Lewis, Washington. After Mr. H. expressed his intent
to share an award he received by offering cash awards or quality step
increases to his staff, Mr. H. provided such awards to everyone on his
staff except appellant. When she did not receive an award, she approached
Mr. H. on February 10, 1995, and Mr. H. became defensive and hostile,
yelled at her, pounded his fist on a desk, and stated that, among other
things, he did not appreciate her having approached "white boys" instead
of first discussing the issue with him. Appellant also alleged that
Mr. H.'s physical and verbal demeanor, including his use of derogatory
racial terms, created a hostile work environment. Mr. H. denied that
he treated appellant differently on any prohibited bases, noting that
agency policy precluded him from granting cash awards to employees whose
performance appraisal was approved by a rating official, as was the case
with appellant, more than sixty days after the rating official signed the
performance appraisal. Mr. H. admitted that he yelled at appellant and
banged his fist repeatedly on a desk, and stated that he later apologized
to her for his outburst. The Affirmative Employment Program Manager
(Ms. Mc) noted that when she reminded Mr. H. about completing award
paperwork for appellant, Mr. H. stated "I'll just give her ten dollars,
that will be her award." Ms. Mc stated she was surprised by this
"flip" remark, and did not ask him again about an award for appellant.
Ms Mc. also stated that she believed Mr. H. may have been motivated by
appellant's status as a Black female. Other agency employees corroborated
appellant's allegation that Mr. H. was preoccupied with race, and that
he would make various derogatory comments or gestures.<1>
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on March 21,
1995. At the conclusion of the investigation, appellant was provided
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding discrimination.
The AJ concluded that Mr. H.'s stated reasons for denying appellant
a cash award were not credible, and that more likely than not, he was
motivated by discriminatory animus. The AJ noted that every other member
of the department received an award, including a temporary employee, and
that notwithstanding agency policy respecting the timing of performance
awards, Mr. H. never intended to present appellant with an award because
of discriminatory animus. The AJ also found that Mr. H's actions created
a hostile work environment.
The agency's FAD rejected the AJ's RD, and concluded that appellant
failed to establish a prima facie case of discrimination respecting her
non-receipt of an award when none of the other employees to receive an
award encumbered the same job title or grade. The agency then concluded
that it offered a legitimate, nondiscriminatory reason for denying
appellant an award, namely, that its incentive award policy precluded
the granting of an award to appellant, and that appellant failed to
demonstrate that more likely than not, the decision to not present
her with an award was motivated by discriminatory animus under any
alleged basis. The agency then concluded that Mr. H's single outburst
at appellant was insufficient to warrant a finding that the workplace
was permeated with discriminatory animus. On appeal, appellant contends
that the AJ's RD set forth the proper legal analysis and conclusions,
and should be reinstated. The agency stands on the record, and requests
that we 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 disagree with the FAD's conclusion
that appellant failed to establish a prima facie case, and note that
appellant does establish a prima facie case of discrimination where
a group of employees, albeit with different job titles or functions,
are subject to the same incentive award policy. We also note that in
finding that Mr. H. discriminated against appellant and created a hostile
environment, the AJ found credible the testimony of a number of witnesses
respecting the derogatory remarks and motivations of Mr. H.<2>
We 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 REVERSES
the FAD and REMANDS 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 award appellant a quality step increase
which she was unlawfully denied on or around February 5, 1995. Appellant
shall also receive back pay, seniority and other employee benefits,
including other quality step increases or cost of living increases,
from the date of the retroactive award, along with any incurred and
reasonable attorney's fees.<3>
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. 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. The agency is directed to conduct a minimum of forty (40) hours
of EEO and sensitivity training for Mr. H., the agency official who
was found to have discriminated against appellant by not providing
her an award, and by creating a discriminatory, hostile environment.
The agency shall address this employees' responsibilities with respect
to eliminating harassment and discrimination in the workplace, as well
as enforcing those responsibilities as an EEO Manager. Because the EEO
Manager at Fort Lewis was found to have discriminated against an employee
of the facility, the agency shall also provide a minimum of eight (8)
hours of EEO and sensitivity training to all supervisors, managers,
EEO and personnel staff at Fort Lewis.<4>
3. The agency shall take appropriate preventative steps to ensure
that no employee is subjected to harassment based on any unlawful basis,
and ensure that appropriate steps are taken immediately after management
is notified of any such harassment.
4. 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. 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;
5. 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 Fort Lewis, Washington facility,
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 (R0993)
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. 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:
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. has occurred at the Department of the Army's
Fort Lewis, Washington facility (hereinafter "Fort Lewis").
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.
Fort Lewis supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
Fort Lewis was found to have unlawfully discriminated against the
individual affected by the Commission's findings on the bases of
race (Black), color (light skin), national origin (Dominican) and sex
(female), when the agency unlawfully denied her a quality step increase
award for the performance period 1993-1994, and when her supervisor
created a hostile work environment for this individual on all of
the above referenced bases. Fort Lewis shall therefore remedy the
discrimination by retroactively granting a quality step increase to the
affected individual, together with back pay (and applicable interest),
from the effective date of the award. Fort Lewis shall also provide
this individual cost of living increases, seniority, and other employee
benefits commensurate with the quality step increase. Fort Lewis
shall also provide relevant training to all personnel, supervisory
and management officials on equal employment opportunity law in the
federal workplace. Fort Lewis 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.
Fort Lewis 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 the AJ's RD adequately sets forth the relevant facts of
the case, and all the facts need not be repeated herein.
2 While the AJ referred to and emphasized appellant's psychological
injuries sustained as a result of the harassment in order to justify a
finding that appellant should receive proven compensatory damages, we
note that a finding of harassment does not require that the prohibited
conduct endured constitute an adverse action, nor does appellant need
to show that she suffered a psychological injury. As the Supreme Court
stated: "[a] discriminatorily abusive work environment, even one that
does not seriously affect employee's psychological well-being, can and
often will detract from employees' job performance, discourage employees
from remaining on the job, or keep them from advancing in their careers."
Harris, 510 U.S. at 22 (1993).
3 We note that the AJ ordered the agency to place a note in appellant's
file to the effect that her performance for the above-referenced
performance period was exceptional, and further, such note should also
detail how she was discriminatorily denied a quality step increase, but
subsequently received such an increase after an AJ found discrimination
and ordered such relief. The Commission notes, however, that her
performance evaluation already reflects her exceptional performance,
and further, that Title VII "make whole relief" is intended to place
the victim of discrimination in a position as though the unlawful
discrimination never occurred. The AJ's order, as restated herein, for
a retroactive quality step increase accomplishes that goal, and noting
as such in an employee's personnel file, in effect, does not make the
victim whole because it distinguishes her receipt of such an increase
from her co-workers. To the extent that the agency must publicly affirm
that the discrimination occurred and was remedied, the AJ's posting order,
as restated herein, accomplishes this goal.
4 In this respect, we remind the agency of its "... continuing duty
to promote the full realization of equal employment opportunity in
its policies and practices. This duty extends to every aspect of
agency personnel policy and practice in the employment, advancement,
and treatment of employees. Agencies shall, among other things, insure
that managers and supervisors perform in such a manner as to effectuate
continuing affirmative application and vigorous enforcement of the policy
of equal opportunity. See Torrez v. Social Security Administration,
EEOC Request No. 05950947 (March 10, 1998).
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).