05960487
10-01-1998
Ronald L. Morgan, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency,
Ronald L. Morgan v. Department of Veterans Affairs
05960487
October 1, 1998
Ronald L. Morgan, )
Appellant, )
)
v. ) Request No. 05960487
) Appeal No. 01944845
Togo D. West, Jr., ) Agency No. 92-1244S
Secretary, )
Department of Veterans Affairs, )
Agency, )
)
DECISION ON REQUEST FOR RECONSIDERATION
On April 26, 1996, appellant timely requested that the Equal Employment
Opportunity Commission reconsider its decision in Ronald L. Morgan
v. Jesse Brown, Secretary, Department of Veterans Affairs, EEOC Appeal
No. 01944845 (March 27, 1996). EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration may
submit written argument or evidence that tends to establish that
the previous decision involved an erroneous interpretation of law or
regulation, or material fact, or a misapplication of established policy,
29 C.F.R. � 1614.407(c)(2). We find that our previous decision erred
in not addressing appellant's request for compensatory damages or his
claim that he is entitled to placement in an upward mobility program.
Accordingly, we will GRANT appellant's request.
Appellant filed a complaint in which he alleged that the agency
discriminated against him on the basis of race (black) by subjecting him
to harassment from his supervisor and by constructively discharging him.
In the space marked "corrective action sought" on his complaint form,
appellant specifically listed "entry into an upward mobility program to
become a maintenance and operations foreman," and "punitive damages."
Included in the record are statements from appellant on the agency
harassment to which he was subjected which impacted on his relationship
with his family. In our previous decision, we found that the agency
had indeed discriminated against appellant, as alleged.
As corrective action, we ordered the agency to offer appellant the
position of air conditioning foreman at the WS-5306-9 grade level,
or a substantially equivalent position. We also directed the agency
to award appellant appropriate back pay and other benefits. However,
the previous decision did not address compensatory damages or appellant's
request for placement in an upward mobility program. In his request for
reconsideration, appellant argues that our previous decision erroneously
failed to consider appellant's request for compensatory damages and his
request for placement into the upward mobility program. We agree.
Compensatory Damages: The Commission has held that if it finds
discrimination and appellant requests compensatory damages, then
appellant must be allowed to submit objective evidence establishing a
causal connection between the agency's discriminatory acts and any harm
suffered. Terrell v. Department of Housing and Urban Development, EEOC
Appeal No. 01961030 (October 25, 1996); Carle v. Department of the Navy,
EEOC Appeal No. 01922369 (January 5, 1993). In this case, appellant
mistakenly requested punitive damages in his complaint. Nevertheless,
the record plainly establishes that appellant was claiming that the
public harassment caused him to be humiliated and that he was subjected
to stress. Since we did not address the issue of compensatory damages in
our previous decision, we will order the agency to conduct a supplemental
investigation in order to permit appellant to submit evidence in support
of his claim for damages.
Placement in Upward Mobility Program: The Commission has held that, once
discrimination is found, the agency is required to make appellant whole
by restoring him to the position that he would have occupied were it not
for the agency's acts of discrimination. Wrigley v. United States Post
Office, EEOC Petition No. 04950005 (February 15, 1996). Although the
order in our previous decision did not specifically mention placement
in the upward mobility program, it did specify that appellant was to be
awarded any other benefits that he would have received had he not been
constructively discharged, in addition to back pay. We will therefore
direct the agency to determine whether appellant would have been placed
in the upward mobility program if he had not been forced to resign as
a result of his supervisor's discriminatory harassment.
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. �1614.407(c). It is therefore the
decision of the Commission to GRANT appellant's request. The decision of
the Commission in EEOC Appeal No. 01944845 shall remain the Commission's
final decision on this matter, however, the Commission's order in
that decision shall be modified in accordance with our order below.
The agency shall investigate appellant's entitlement to compensatory
damages and to placement in an upward mobility program. There is no
further right of administrative appeal from a decision of the Commission
on request for reconsideration.
ORDER (B1092)
A. To the extent that it has not already done so, the agency shall
accomplish the following:
1. Within 60 days of the date of this decision, the agency shall offer
appellant, in writing, another air conditioning foreman position at the
WS-5306-9 grade level, or a substantially equivalent position at the WS-9
grade level if an air conditioning foreman position is not available.
Should appellant accept the offered position, he shall be given
appropriate guidance and proper working conditions in which to perform
his duties, and shall not be subjected to any acts of discrimination or
reprisal.
2. Within 45 days of the date of this decision, the agency shall award
appellant appropriate back pay, interest, and other benefits he would have
received had he not been forced to resign from his position at the West
Side Medical Center, including placement in an upward mobility program
for the position of maintenance and operations foreman, if appellant
would have been so placed absent the discrimination. Back pay and
benefits shall be calculated from the effective date appellant resigned
his foreman position until the date he is placed into the WG-5306-9
position or its equivalent.
3. The agency shall take necessary steps to educate the responsible
agency officials regarding their legal responsibilities under Title VII.
This shall include providing EEO training for the AC and C-2.
4. The agency shall conduct a supplemental investigation regarding
appellant's claim for compensatory damages. Appellant shall be given
the opportunity to present any objective evidence that tends to establish
that he suffered compensable harm, and that the harm that he suffered is
causally connected with the agency's acts of discriminatory harassment
that led to his resignation. See Carle, supra. The agency shall then
determine, within 90 days of the date this decision becomes final,
appellant's entitlement to compensatory damages.
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.
POSTING ORDER (G1092)
The agency is ORDERED to post at its West Side Medical Center 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.
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:
OCT 1, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat