Michael A. Lovett, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 30, 1999
01984029 (E.E.O.C. May. 30, 1999)

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