Sharleda A. Davis, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionSep 29, 2005
01a50109 (E.E.O.C. Sep. 29, 2005)

01a50109

09-29-2005

Sharleda A. Davis, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Sharleda A. Davis v. Department of Transportation

01A50109

09-29-05

.

Sharleda A. Davis,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A50109

Agency No. 4-02-4086, 4-02-4093

Hearing No. 210-2003-06188X, 210-2003-06189X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's final order in the above-entitled matter.

Complainant alleged that the agency discriminated against her on the

bases of race (African-American), sex (female), and reprisal for prior

EEO activity when in complaint no. 4-02-4086 (4086):

complainant was subjected to less favorable terms and conditions of

employment than coworkers with respect to job assignments, opportunities

for career development and awards and recognition on an ongoing basis;

she was subjected to reprisal in that the agency, failed to initiate a

formal ethics investigation, which she requested, as there was an EEO

complaint pending on the subject matter; and

she was subjected to reprisal when: (1) she was subjected to hostile

behavior by the Project Manager; (2) an employee temporarily promoted

to a GS-14 position was made permanent in the position; (3) she was

removed from a high-profile audit and assigned to a low-profile audit;

(4) she received a performance evaluation on August 13, 2002, that

included the following language, �Sharleda will be provided training

in written communications, data collection, analysis, and performance

auditing,� thus portraying her as an incompetent and dysfunctional

auditor who could not write, collect and analyze data, or conduct

performance audits; (5) the agency failed to obtain input from her

direct supervisor regarding her performance; and (6) her request to

remove language from her performance evaluation was denied.

In complaint no. 4-02-4093 (4093), complainant alleged discrimination

based on sex (female/pregnancy), race and reprisal when:

approval of her request for advance sick leave for maternity leave was

delayed; and

from her return from maternity leave until March 8, 2003, her requests

to be assigned to an audit were denied.

Following a hearing, the Administrative Judge (AJ) found that with respect

to complaint no. (4086), complainant failed to prove discrimination

as to all issues.<1> Regarding complaint no. (4093), the AJ found

that complainant failed to show discrimination with regard to issue

#4, but proved her claim of discrimination with respect to issue #5.

Specifically, the AJ found that complainant was discriminated against

based on reprisal when from, at least, November 1, 2001, to February 7,

2002, the agency failed to assign her to an audit.

On September 9, 2004, the agency issued a final order accepting and

fully implementing the AJ's decision.

On appeal, complainant contends that the AJ erred when she found that

complainant was discriminated against for only three months. Complainant

maintains that the AJ should have included the entire 11 month period in

which she was not assigned an audit. As to all other claims, complainant

does not contest the AJ's findings of no discrimination.

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.

In this decision, the Commission will address only the issue of whether

complainant was discriminated against for three months or for an eleven

month period. Based on a review of the record in its entirety, including

consideration of all statements submitted on appeal, the Commission finds

that a fair reading of the AJ's decision, regarding the amount of time

that complainant was discriminated against when she was not assigned

an audit would include the entire 11 month period. (See AJ's decision

pages 12 -15). The Commission finds the AJ specifically referenced

the period from November 2000, until the following February 2001,

(approximately three months) and from May 20, 2001, until February 2002,

(approximately eight months) as the time period during which complainant

was not assigned an audit. The AJ repeats the 11 month time period

several times, throughout the decision. As such, the Commission finds

that the eight month period from May 20, 2001, until February 2002, was

mistakenly omitted from the AJ's Conclusions and Findings, and this time

period along with the three months already acknowledged would give a total

of 11 months that complainant was subjected to unlawful discrimination.

Accordingly, the Commission affirms the Administrative Judge's

ultimate finding, that unlawful employment discrimination was proven

by a preponderance of the evidence, is supported by the record. It is

the decision of the Commission however, to modify the AJ's decision.

The Commission finds that complainant was discriminated against for a

total of 11 months. Therefore, the file is being remanded to the AJ to

determine appropriate relief.<2>

ORDER

The following is ordered:

1. The file shall be remanded to the Administrative Judge to determine

the appropriate individual relief, if any, to be awarded the complainant,

such as compensatory damages.

The agency shall conduct training on Title VII, as amended, for the

appropriate managers and supervisors involved in denying complainant an

audit. The Commission does not consider training to be a disciplinary

action.

Within thirty (30) days, the agency shall consider taking disciplinary

action against the manager and supervisor who denied complainant's

audit requests. 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 these individuals have left the agency's

employ, the agency shall furnish documentation of his/her departure date.

The agency must post copies of the attached notice. Copies of

the notice, after being signed by that agency's duly authorized

representative, shall be posted and maintained for 60 consecutive days,

in conspicuous places at the Chicago facility, including all places

where notices to employees and applicants for employment are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other materials.

POSTING ORDER (G0900)

The agency is ordered to post at its Chicago, Illinois 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 (R0900)

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 within ninety (90) calendar days from the date

that you receive this decision. 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 (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

____09-29-05______________

Date

1 With respect to issue #2, prior to the

hearing, the AJ granted the agency's motion for summary judgment regarding

this issue only.

2It is not apparent from the file that the complainant ever provided

the AJ the evidence sought in the AJ's August 5, 2004, decision as set

forth in the section entitled �Relief,� but instead appealed directly to

the Commission in order to enlarge the period in which discrimination

was found. Accordingly, we find that remanding this case to the AJ

for a determination on relief is appropriate, especially in light of

our finding that the period of discrimination lasted 11 months, which

could affect any potential compensatory damages claim.