01A24237
09-30-2003
Brian E. Mitchell, Complainant, v. Elaine Chao, Secretary, Department of Labor, Appeal No. 01A24237 Agency Nos. 6-02-032, 6-02-119, 7-02-052 Hearing Nos. 160-96-8662X, 160-98-8338X, 160-98-8341X
Brian E. Mitchell v. Department of Labor
01A24237
09-30-03
.
Brian E. Mitchell,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Appeal No. 01A24237
Agency Nos. 6-02-032, 6-02-119, 7-02-052
Hearing Nos. 160-96-8662X, 160-98-8338X, 160-98-8341X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency had discriminated against him on the
bases of sex (male), age (D.O.B. 3/21/1955) and reprisal for prior EEO
activity in connection with miscellaneous events involving the terms and
conditions of his employment, including nonselection for the position
of GS-690-12 Industrial Hygienist. After a review of the record in its
entirety, including consideration of all statements submitted on appeal,
it is the decision of the Equal Employment Opportunity Commission to
affirm the final agency order because the Administrative Judge's (AJ's)
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.<1>
ORDER (D1199)
The agency is ORDERED to take the following remedial actions, no later
than forty (40) calendar days after the date this decision becomes final:
(1) The agency shall issue a check in the amount of $25,000.00 to
complainant for non-compensatory damages.<2>
(2) 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."
(3) Complainant shall submit a schedule of attorney's fees and
costs arising from the nonselection, including full compensation for
complainant's mental health provider's testimony and report to the agency
for payment.
(4) Complainant shall submit a schedule of pecuniary expenses resulting
from the nonselection to the agency for payment.
(5) The agency is directed to conduct training for the managers
responsible for complainant's nonselection. The agency shall
address these employees' responsibilities with respect to eliminating
discrimination in the workplace and all other supervisory and managerial
responsibilities under equal employment opportunity law. The Commission
does not consider training to be a disciplinary action.
(6) The agency shall consider taking disciplinary action against the
managers responsible for complainant's nonselection. 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.
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 of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its New York Occupational Safety
and Health Administration 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
___09-30-03_______________
Date
1The AJ found no discrimination with respect to all of complainant's
claims, except the nonselection issue contained in complaint number
6-02-032. This one claim involved nonselection for the position of
GS-690-12 Industrial Hygienist. Finding that complainant proved age
and sex discrimination in this complaint, the AJ noted in his decision,
adopted by the agency, that complainant is entitled to relief commensurate
with the harm suffered. The AJ then ordered as corrective relief,
that within forty days of the receipt of his findings, the agency pay
complainant $25,000 for non-pecuniary damages; and backpay and benefits
from the effective date of the selection at issue until complainant's
promotion to the GS-12 level. Complainant was also directed to submit
a schedule of attorney's fees and costs arising from the nonselection to
the agency, including costs resulting from his mental health provider's
testimony and report, for payment. Complainant was further asked to
submit a schedule of pecuniary expenses resulting from the nonselection
for payment. The AJ mandated that all officials involved in complainant's
nonselection undergo training in equal employment opportunity. On appeal,
complainant did not challenge the finding of discrimination or the remedy
awarded, nor did he indicate that the agency has not complied with the
AJ's decision ordering corrective action. Complainant mainly asserts
that he should have also prevailed on his remaining claims.
2As compensatory damages and attorney's fees are not allowable under
the ADEA, complainant's award is only permissible under Title VII.