07a50006
03-18-2005
Patricia L. Christmon, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Patricia L. Christmon v. Department of Veterans Affairs
07A50006
March 18, 2005
.
Patricia L. Christmon,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A50006
Agency No. 200L-0629-200210207
Hearing No. 270-2003-09152X
DECISION
Following its October 7, 2004 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of race. The agency also requests
that the Commission affirm its rejection of the AJ's order to award
complainant compensatory damages and other relief. For the following
reasons, the Commission MODIFIES the agency's final order.
Complainant, a contract Dental Assistant employed at the agency's VA
Medical Center in New Orleans, Louisiana, filed a formal EEO complaint
with the agency on May 31, 2002, alleging that the agency discriminated
against her on the bases of race (African-American) and sex (female)
when on April 4, 2002, the agency terminated her.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
Following the hearing, the AJ found that complainant established a prima
facie case of race discrimination but failed to establish a prima facie
case of sex discrimination. The AJ found that the agency's cited reasons
for its actions were unworthy of belief and lacked evidentiary support.
Specifically, the AJ concluded that although the agency claimed that
complainant was terminated mainly because she used 470 hours of leave,
the agency failed to produce any of complainant's official original
time and attendance records nor any testimony from complainant's
first-line supervisor. The AJ did not find a document produced by the
Administrative Officer for the instant litigation to be credible. The AJ
further found that the Administrative Officer lacked first-hand knowledge
of complainant's leave usage, and �her testimony is not consistent with
the other facts of the case, contradicts the Complainant's credible
testimony, contradicts the credible testimony of other witnesses, and
was internally inconsistent.� The AJ summarized the Administrative
Officer's hearing testimony as �evasive,� while finding complainant's
testimony to be �highly credible� because it was first-hand, internally
consistent, corroborated by unbiased witnesses, and uncontradicted by
evidence. Additionally, the AJ concluded that the record demonstrated
that a white dental assistant who worked for the same supervisor as
complainant had a �much worse� leave record, yet was not terminated.
The AJ determined that although the agency maintained that complainant's
presence at the facility was critically important, it allowed the white
dental assistant to liberally abuse leave without being removed. The AJ
further determined that complainant's supervisor and a white co-worker had
a history of racial bias against black employees and acted in concert with
the Administrative Officer to influence the Chief of the Dental Service to
remove complainant. �I therefore find that [the Administrative Officer]
and [complainant's supervisor] engineered complainant's termination
by feeding misleading and outright false information to [Chief of the
Dental Service], and pressuring him to act on it,� the AJ concluded.
The AJ ordered the agency to reinstate complainant within 30 days of
the receipt of his order, pay complainant $33,000.00 in back pay for 18
months<1> of lost salary (plus any additional amounts complainant would
have received in promotions and cost-of-living adjustments, if any),
and $95,000.00 in non-pecuniary compensatory damages. The AJ further
ordered the agency to pay the difference between complainant's current
salary and the salary she would have earned at the agency had she not been
terminated, to be paid on a pro rata basis for the time period between
October 19, 2003, and the date on which complainant was reinstated.
The agency's final order rejected the AJ's decision. On appeal,
the agency argues that the AJ erred by comparing complainant, a
contract employee, with a white employee who was a career employee.
The agency maintains that as a career employee, the White employee
was subject to progressive discipline, whereas complainant was an
at-will employee who could be summarily terminated by the contractor
without progressive discipline. The agency contends that the career
employee's situation is also distinguishable from complainant's because
the career employee improved her attendance after receiving counseling
and a reprimand over time, whereas complainant's attendance problems
continued after the contractor and agency management counseled her.
The agency contends that most of complainant's leave was unscheduled,
which is more disruptive to the work environment than scheduled absences.
The agency also argues that the AJ erroneously concluded that the
Administrative Officer had no first-hand knowledge of complainant's leave
and attendance, although the Administrative Officer was complainant's
timekeeper. The agency further argues that complainant's leave problems
were corroborated by the third-line supervisor who testified that he had
conversations with complainant's first-line supervisor about her leave
problems and a management official of the contractor who testified that
complainant had problems while employed with the agency.
Regarding the damages awarded by the AJ, the agency maintains that the AJ
erred by reinstating complainant. The agency maintains that complainant's
employment with the agency would have ended on August 31, 2002, when
the contractor's contract with the agency expired. The agency contends
that the AJ erroneously determined that two other contract employees
had become permanent employees, but were actually advised that they
needed to apply for employment with the new contractor if they wanted
to remain employed. Finally, the agency contends that the AJ's award
of $90,000.00 in non-pecuniary compensatory damages was excessive.
The record reveals that complainant worked as a contract dental assistant
with the agency from January 2001 until her termination in April 2002.
At the time of her termination, there were five permanent dental
assistants and three contract dental assistants.<2> During the hearing,
complainant testified that her immediate supervisor never told her that
her leave usage was unacceptable. Complainant also testified that a white
female dental assistant was often absent from work but was not terminated.
The Administrative Officer to the Dental Service, a white female,
testified that on January 30, 2002, she witnessed an altercation between
complainant and a white dental assistant wherein both parties loudly
argued in front of patients. She testified that she was responsible for
complainant's time and attendance records. She stated that she created a
document entitled �Time and Attendance Records for Complainant� in order
to assist with the EEO investigation. She testified that the official
time sheets were signed by complainant and transmitted to the contractor.
She testified that complainant used approximately 470 hours of leave,
which jeopardized the work of the clinic. �When the complainant would
have to leave in the middle of the day for whatever reason or come late
or not come at all, it caused great problems throughout the clinic for
patient care,� she stated. She further stated that she informed the
Chief of the Dental Service about complainant's attendance problems.
The Chief of Dental Service testified that he issued complainant a
proposed reprimand and the white female dental assistant a letter
of reprimand concerning their altercation. He testified that after
complainant failed to show up for work, the Administrative Officer came
to him and stated, �We've got to do something about this.� He stated
that he then called the contractor and relayed to him the attendance
problems reported by the Administrative Office. He testified that the
contractor made the ultimate decision to terminate complainant primarily
because of excessive absences. The Chief of the Dental Service stated
that the white dental assistant was not terminated for the altercation
and leave issues because, unlike complainant, she was a career federal
employee subject to progressive discipline. He noted that the white
dental assistant was counseled about her leave usage on December 4,
2001 and issued a written warning on March 8, 2002. He further testified
that while the white dental assistant's leave use improved after she was
issued the warning, he received feedback from complainant's supervisor
that complainant's leave use did not improve after she was counseled
on the matter. Additionally, the Chief of Dental Service testified
that a report from a dentist that complainant had problems completing
tasks and an incident wherein complainant �abandoned� a patient during
a procedure to answer a telephone call were very minor factors in the
agency's decision to terminate complainant.
The Supervisor for the Dental Assistants stated that he had no first-hand
knowledge of complainant's work performance but noted that complainant's
immediate supervisor discussed complainant's attendance problems with
him approximately six times and felt she could not rely on complainant.
In an investigative affidavit, the President of the contractor that
employed complainant stated that the agency called his company and
�impressed very strongly that they wanted [complainant] to be released
for cause.� He stated that his company communicated with the Chief of
Dental Service regarding complainant's leave issues.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Generally, in order to establish a prima facie case of discrimination
based on race and sex, the complainant must demonstrate that: (1) she is
a member of a protected class; and (2) she was treated differently, with
respect to some condition of employment, from others outside her protected
class and in a manner that creates an inference of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). However, proof
of a prima facie case will vary depending on the facts of the particular
case. Id. at 804.
The AJ found that complainant, a contract dental assistant, was similarly
situated to a white dental assistant who was a federal employee because
she was essentially treated the same as dental assistants who were
federal employees with regard to discipline.<3> We find that the AJ
erred in this conclusion. We have held that in order to be considered
similarly situated, the persons with whom the complainant is comparing
herself must be similar in substantially all aspects, so that it would
be expected that they would be treated in the same manner. Murray
v. Thistledown Racing Club, Inc., 770 F.2d 63, 68 (6th Cir. 1985);
Majahad v. Department of Labor, 915 F. Supp. 499 (D.C. MA 1996)(in
order to establish disparate treatment, comparators to the probationary
complainant were other probationary employees). Here, we find that
complainant was not similarly situated to the white dental assistant.
In so finding, we note that although the agency may have chosen to treat
complainant similarly to the dental assistant with whom she had the
altercation, there was no expectation that she would be treated in the
same manner as career federal employees with respect to all disciplinary
matters because contract employees are subject to different disciplinary
procedures and employment protections than federal employees.<4>
Nonetheless, we find that other evidence in the record supports an
inference that the agency's actions resulted from race discrimination.
Although the Commission often uses the �similarly situated employee� model
to determine whether a complainant has established a prima facie case,
the Supreme Court has held that comparative evidence is not an essential
element of a prima facie case of discrimination. O'Connor v. Consolidated
Coin Caterers Group, 517 U.S. 368, 116 S. Ct. 1307, 134 L.Ed.2d 433
(1996). At a minimum, complainant must present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978).
Complainant alleged, with corroborating affidavits, that she and other
black employees in the dental office were subjected to pervasive
discrimination. A dentist assistant stated that she heard the
white dental assistant tell a co-worker that she was responsible for
complainant's termination. In an investigative affidavit, the dentist
whom complainant assisted stated that she heard the white dental
assistant state that complainant was a �n-----� and vow several times
that either she or complainant would have to go. She further stated that
�it seemed that the whole time we were there, that the African-American
females seemed to be in the most trouble for reasons that I could not
explain.� A dental lab assistant stated that she heard the white
dental assistant state that �she hated that n-----� when referring
to complainant, and the dental office was rife with discrimination
against blacks. Additionally, a dental assistant stated that in her 14
years of working at the office, she noticed that black contract workers
were treated worse than white contract workers. Finally, we note that
complainant's first-line supervisor was disciplined by the agency in
March 2002 for inappropriate actions towards a black subordinate that
demonstrated a �lack of sensitivity across cultural lines.� We find that
this evidence is sufficient to support an inference of race discrimination
regarding complainant's termination; therefore, we find that complainant
has established a prima facie case of race discrimination. See Saenz
v. Department of the Navy, EEOC Request No. Request No. 05950927
(January 09, 1998) (inference of discrimination found where several
witnesses testified that the Personnel Director treated Hispanic women
more harshly than he treated other persons under his supervision).
However, we find that complainant failed to present evidence from which
an inference of sex discrimination could be established. Consequently,
we find that complainant failed to establish a prima facie case of sex
discrimination.
The burden of production now shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the
agency has articulated such a reason, the question becomes whether the
proffered explanation was the true reason for the agency's action,
or merely a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,
in other words, "going forward," may shift, the burden of persuasion,
by a preponderance of the evidence, remains at all times on complainant.
Burdine, 450 U.S. at 256.
In this matter, the agency responded that complainant was terminated
mainly for amassing excessive absences. The AJ found the agency
gave a false reason for terminating complainant in part because it
failed to produce any of complainant's official, original time and
attendance records nor any testimony from complainant's first-line
supervisor corroborating the Administrative Officer's testimony that
complainant amassed approximately 470 hours of leave while employed
at the agency. The AJ noted that its own documents, prepared by the
Administrative Officer for the instant litigation, only showed that
complainant used 378.25 hours of leave. The agency argues that the
Administrative Officer had first-hand knowledge of complainant's leave
and attendance as complainant's timekeeper and verified complainant's
excessive absences. The agency further argues that complainant's leave
problems were corroborated by the Chief of Dental Service who testified
that he had conversations with complainant's first-line supervisor
about complainant's leave problems and the contractor who testified that
complainant had problems while employed with the agency.
However, we note that the Administrative Officer's credibility regarding
complainant's leave use is severely undermined by her inability to produce
complainant's official leave records and the significant contradiction
between her testimony and the documentation she produced in preparation
for litigation. Significantly, the Administrative Officer testified that
the agency still had copies of original time and attendance documents at
the time of the hearing, yet the agency failed to produce these documents
for the record. We also find that the Chief of Dental Service and
contractor's testimony regarding complainant's leave use does not validate
the agency's claim because the Chief of Dental Service merely relied upon
information relayed to him by the Administrative Officer and complainant's
first-line supervisor, which was then relayed to the contractor by the
Chief of Dental Service. There is no evidence that the Chief of Dental
Service nor the contractor directly observed complainant's alleged leave
abuses. Moreover, we note that complainant's first-line supervisor,
who would ostensibly have first-hand knowledge of complainant's leave
usage, did not submit an affidavit nor testify during the hearing.
We further note that the AJ found that the agency's claim that complainant
abandoned a patient during a dental procedure lacks credence because this
claim arose during the hearing for the first time, and no documentary
evidence supported the agency's assertion that it ever occurred. The AJ
further found that the agency's claim that complainant had interpersonal
problems with several co-workers and performed her job duties poorly
is contradicted by her performance evaluation covering April 1, 2001 to
March 31, 2002. The evaluation stated that complainant gives �courteous,
accurate, and complete responses� and �treats all employees with respect
regardless of their level, personality, culture, or background� under
�Interpersonal Effectiveness.� Complainant was rated �Successful� in
all elements, including Customer Service, Clinical and Administrative
Duties, and Safety. We find that the AJ's conclusions regarding these
matters is supported by substantial evidence.
Finally, we note that the AJ found complainant's hearing testimony to
be very credible and corroborated by witness testimony. �I found her
composed and unhesitant,� the AJ stated. The AJ further found that
the Administrative Officer was not a credible and appeared evasive. The
Commission determines that in this case, the credibility determinations of
the AJ are entitled to deference due to the AJ's first-hand knowledge,
through personal observations, 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).
In Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000),
a unanimous Supreme Court held that evidence showing that the employer
presented a false reason for a challenged action is sufficient in most
cases to support a finding of discrimination. Further, the Supreme
Court has held that pretext may also be proven where:
"[t]he factfinder's disbelief of the reasons put forward by the [employer]
(particularly if disbelief is accompanied by a suspicion of mendacity)
may together with the elements of the prima facie case, suffice to
show intentional discrimination. Thus, rejection of the [employer's]
proffered reasons will permit the trier of fact to infer the ultimate
fact of intentional discrimination."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). In this
case, we find, as did the AJ, that complainant has met her burden in
establishing that the agency's articulated reasons for her termination,
i.e., that she amassed excessive absences, abandoned a patient during
a dental procedure, and had interpersonal problems with co-workers,
were pretextual explanations to cover race discrimination.
Therefore, for the reasons set forth above, we find that substantial
evidence supports the AJ's conclusion that the agency's proferred reasons
for terminating complainant was pretext for race discrimination and
REVERSE the agency's finding of no discrimination.
REMEDIES
The agency argues that the AJ erred when he ordered complainant to
be reinstated to her previous dental assistant position because the
agency's contract with complainant's employer ended on August 31, 2002.
The record contains a copy of an agency memorandum to two contract
dental assistants dated August 27, 2002 that stated that the contract
between the contractor who employed complainant and the medical center
expired effective August 31, 2002. The memorandum further stated that
another contract was awarded to another contractor and advised, �Should
you choose to apply with the new contractor, your application will be
considered with all other eligible candidates.� The record also contains
copies of the contracts between the agency and complainant's employer,
which reflect that the contract with the agency began on February 12,
1999 and terminated on August 31, 2002. Upon review of this matter, we
find that the AJ erred when he ordered the agency to reinstate complainant
to her dental assistant position because she �would still be employed at
the agency.�<5> Instead, the record reveals that after August 31, 2002,
complainant would have had to apply for a dental assistant position with
the new contractor. We find that it is too speculative to find that
complainant would have been hired by the new contractor. Therefore,
we find that reinstatement is improper as a remedy in this case.
The agency also contends that the AJ's award of $95,000.00 in nonpecuniary
compensatory damages was excessive. To receive an award of compensatory
damages, a complainant must demonstrate that she has been harmed as a
result of the agency's discriminatory action; the extent, nature, and
severity of the harm; and the duration or expected duration of the harm.
Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994), req. for recons. den., EEOC Request No. 05940927 (December 11,
1995); Enforcement Guidance: Compensatory and Punitive Damages Available
Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002
(July 14, 1992), at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. EEOC Notice
No. 915.002 at 8. Objective evidence of compensatory damages can
include statements from the complainant concerning her emotional pain
or suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation,
injury to credit standing, loss of health, and any other nonpecuniary
losses that are incurred as a result of the discriminatory conduct.
Statements from others, including family members, friends, health
care providers, other counselors (including clergy) could address the
outward manifestations or physical consequences of emotional distress,
including sleeplessness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self-esteem, excessive fatigue,
or a nervous breakdown. See Lawrence v. United States Postal Service,
EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department of
the Navy, EEOC Appeal No. 01922369 (January 5, 1993). A proper award
of compensatory damages must satisfy two goals: (1) It must not be
"monstrously excessive;" and (2) It should be consistent with awards in
similar cases. See Jackson & Beaner v. U.S. Postal Service, EEOC Appeal
Nos. 01972555 & 01972556 (April 15, 1999).
After careful review, we find that the AJ's award of $95,000.00
in compensatory damages is excessive. In support of her compensatory
damages claim, complainant testified that she had to enroll in a homeless
and food stamp program after she was terminated. Complainant further
testified that a psychiatrist diagnosed her as depressed and placed her
on medication indefinitely. Additionally, complainant testified that she
was forced to move from her home to a crime and drug-ridden neighborhood
after the agency terminated her. She testified that she was embarrassed
by her financial situation and felt she had hit �rock bottom.� The
agency contends that while complainant contends that she suffered from
depression because of the discriminatory actions of the agency, she failed
to provide any medical documentation to substantiate this claim. We note
however that medical evidence is not a mandatory prerequisite for recovery
of compensatory damages. Carpenter v. Department of Agriculture, EEOC
Appeal No, 01945652 (July 17, 1995). In the absence of this evidence, a
complainant's own testimony, along with the circumstances of a particular
case, can suffice her burden in this regard. See U.S. v. Balistrieri,
981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993).
Nonetheless, the absence of supporting evidence may affect the amount
of damages deemed appropriate in specific cases. Lawrence v. USPS,
EEOC Appeal No. 01952288 (April 18, 1996).
We note that the Commission has awarded compensatory damages in cases
somewhat similar to complainant's. See, e.g., Garrett v. United States
Postal Service, EEOC Appeal No. 07A30024 (February 25, 2004) ($35,000 in
non-pecuniary damages where complainant experienced emotional distress,
depression, anger, embarrassment, and humiliation, as well as headaches,
and sleep difficulties, which were corroborated by a friend); Henry
v. United States Postal Service, EEOC Appeal No. 07A20113 (August 6,
2003) ($35,000 in non-pecuniary damages where complainant testified
that he was unable to pay his bills, went on welfare, and experienced
embarrassment, humiliation, stress, and a lack of sleep and energy);
Shah v. Department of Veterans Affairs, EEOC Appeal No. 07A30040
(September 30, 2003) ($30,000 in non-pecuniary damages where complainant
experienced increased anxiety and depression, stomach distress, chest
palpitations, elevated blood pressure, and interference with social and
family relationships as a result of the discrimination). We point out
that non-pecuniary compensatory damages are intended to remedy a harm
and not to punish the agency for its discriminatory actions. See Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating
that a compensatory damages determination must be based on the actual
harm sustained and not the facts of the underlying case). Therefore, we
conclude that complainant shall be awarded $30,000.00 in damages because
the amount is adequate, and not excessive, to compensate complainant
for her suffering.
CONCLUSION
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
MODIFIES the agency's final order and directs the agency to take
corrective action in accordance with this decision and the Order below.
ORDER
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall pay complainant $30,000.00 in non-pecuniary
compensatory damages.
Within sixty (60) calendar days of the date ths decision becomes final,
the agency shall pay complainant back pay and other benefits due
from the date of her removal (April 4, 2002) until the termination of
the contract (August 31, 2002) with complainant's employer, plus any
additional amounts complainant would have received in promotions and
cost-of-living adjustments, if any. The agency shall determine the
appropriate amount of back pay, with interest, and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501. The complainant 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 complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. 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."
The agency shall take corrective, curative, and preventative actions to
ensure that violations of federal EEO law will not recur, including, but
not limited to, providing training in employment discrimination law for
the agency officials involved in the decision not to fire complainant.
The agency shall consider taking appropriate disciplinary action against
the responsible management officials. The Commission does not consider
training to be disciplinary action as noted above. The agency shall
report its decision to the compliance officer. 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. If any of
the responsible management officials have left the agency's employ,
the agency shall furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its New Orleans, Louisiana 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.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_March 18, 2005_________________
Date
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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at the agency's New
Orleans, Louisiana facility (hereinafter 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 DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have discriminated against an employee on the
basis of race. The facility was ordered to pay the individual back pay
and compensatory damages. The agency was also ordered to pay proven
attorney fees, to provide relevant agency officials with training,
and to consider discipline. This 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 and will not retaliate against employees who file EEO complaints.
This facility will comply with federal law and 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
1The record reveals complainant accepted a part-time job making $10,000.00
a year at another federal agency on October 19, 2003, 18 months after
being terminated from the Department of Veterans Affairs.
2Four of the permanent dental assistants are Black and one is was White.
Two contract dental assistants are Black and one is White.
3The AJ found that complainant was an aggrieved employee covered under
EEO Regulations. Because neither party contests this jurisdictional
conclusion on appeal, we will not review the AJ's determination on this
particular matter.
4In fact, we note that one of the agency's explanations for treating
complainant differently than the white contract dental assistant is
that as a contract employee, complainant was an at-will employee who
could be instantly dismissed by the contractor, whereas the white dental
assistant was a federal employee subject to progressive discipline and
grievance protections.
5We note that the AJ's Order was issued March 2, 2004.