01984029
05-30-1999
Michael A. Lovett, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Michael A. Lovett, )
Appellant, )
)
v. ) Appeal No. 01984029
) Agency No. BDDW9509F0320
Louis Caldera, ) Hearing No. 110-97-8293X
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On April 21, 1998, Michael A. Lovett (appellant) timely appealed the
final decision of the Department of the Army (agency), dated April 2,
1998, which concluded that he had not been discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In his complaint, appellant had alleged that
he was subjected to racial harassment and unlawful retaliation for
engaging in prior EEO activity when he was physically threatened and
cursed out by his supervisor. This appeal is accepted in accordance
with the provisions of EEOC Order No. 960.001.
At the time of the events at issue, appellant (black male) was employed
by the agency as a Communications Equipment Operator, GS-06, at Fort
Stewart, Georgia. Both parties essentially agree to the facts which gave
rise to appellant's EEO complaint. Appellant and his immediate supervisor
(white male) had been engaged in a long-term dispute over what appellant
perceived as disparate treatment in scheduling the employees in his
work group. Appellant had previously pursued his dissatisfaction about
scheduling through the discrimination complaints process against this
same supervisor. On May 4, 1995, appellant approached his supervisor and
again raised questions about the schedule. The supervisor became angry
with appellant's questions, cursed at him and then became physically
threatening by putting his face close to appellant's and raising his
balled fist in appellant's face. At some point, the record establishes
that the supervisor said to appellant, "Come on, big boy, you want a piece
of me." Appellant asserts that the supervisor's reference to him as "boy"
was an act of racial animosity. The supervisor denied he was making a
racial remark. Instead, he said he was referring to appellant's large
size when he called him "big boy." This incident was later reported
to upper-level management and, after appellant expressed fear of the
supervisor, management reassigned the supervisor to the day shift away
from appellant in order to "relieve a personality conflict." A coworker
(black) of appellant averred that the supervisor treated white employees
more favorably than black employees, adding, "It's only us black guys
he get into it with." Another black coworker of appellant testified
that he had also been referred to by the supervisor as "boy."
On September 28, 1995, appellant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against him as
referenced above. The agency initially dismissed the complaint for
untimely EEO counselor contact. Appellant appealed, and this Commission
reversed the dismissal and ordered the agency to process the complaint.
Lovett v. Department of the Army, EEOC Appeal No. 01962065 (December 23,
1996). In compliance with the Commission's order, the agency accepted
the complaint and conducted an investigation. At the conclusion of the
investigation, appellant requested an administrative hearing before an
Equal Employment Opportunity Commission (EEOC) administrative judge (AJ).
On March 9, 1998, following a hearing at which four witnesses testified,
the AJ issued a decision concluding appellant had proven, by a
preponderance of the evidence, that he had been the victim of racial
discrimination and unlawfully retaliation. In reaching this conclusion,
the AJ found that the evidence of record supported appellant's contention
that he would not have been treated in this manner by his supervisor
if he had not been a black man who had pursued his rights in the past
through the EEO process. The AJ also concluded that the incident in
question was sufficiently severe in nature to rise to the level of
legally impermissible harassment.
On April 2, 1998, the agency issued its final decision, rejecting the
AJ's recommended finding of discrimination and unlawful retaliation. It
is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission
finds that the AJ's recommended decision sets forth the relevant facts
and properly analyzes the appropriate regulations, policies and laws.
Based on the evidence of record, the Commission discerns no basis to
disturb the AJ's finding of race discrimination and unlawful retaliation.
In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57 (1986), that harassment is actionable if it is sufficiently
severe or pervasive that it results in an alteration of the conditions
of the appellant's employment. EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3.
See also, Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). After reviewing the evidence of record, the Commission
concurs with the AJ's holding that appellant has established that he
was subjected to harassment which was sufficiently severe or pervasive
so as to constitute a hostile work environment. The Commission also
notes that the AJ based his decision, at least in part, on specific
credibility findings. These credibility determinations of the AJ are
entitled to deference due to the AJ's first-hand knowledge, through
personal observation, of the demeanor and conduct of the witnesses
at the hearing. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990). The Commission, after an
independent review of the record, found no significant evidence to
contradict the AJ's credibility findings.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which rejected the
AJ's finding of race discrimination and unlawful retaliation. In order
to remedy appellant for its discriminatory actions, the agency shall
comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) The agency shall continue to ensure that appellant no longer works
with the supervisor and that all reasonable steps are taken to minimize
any other contact they might have and to avoid the recurrence of similar
misconduct by the supervisor. The agency shall provide the supervisor
with immediate EEO sensitivity training.
(B) The agency shall post at Hunter Army Airfield, Fort Stewart,
Georgia, 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.
(C) 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 to show
that the corrective action has been implemented.
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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. � l6l4.604(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 an 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 EIGHTY (180)
CALENDARS 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:
May 30, 1999
_________________ _______________________________
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 this 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 Hunter Army Airfield, Fort Stewart, Georgia, supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Hunter Army Airfield, Fort Stewart, Georgia, has been found to have
subjected the individual affected by the Commission's finding to racial
harassment and unlawful retaliation for engaging in prior EEO activity.
The Commission has ordered appropriate injunctive relief to ensure
that this conduct will not occur again. The Hunter Army Airfield,
Fort Stewart, Georgia, 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
and will not retaliate against employees who file EEO complaints.
The Hunter Army Airfield, Fort Stewart, Georgia, 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: _________________
C.F.R. Part 1614