05a41128
01-14-2005
Carolyn L. Smith, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Carolyn L. Smith v. Department of the Army
05A41128
1/14/05
.
Carolyn L. Smith,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Request No. 05A41128
Appeal No. 07A30104
Agency No. BHDXF0002A0030
Hearing No. 310-A2-5051X
DENIAL
On June 16, 2004, the Department of the Army (agency) timely requested
reconsideration of the decision in Carolyn L. Smith v. Department of
the Army, EEOC Appeal No. 07A30104 (May 20, 2004). EEOC Regulations
provide that the Commission may, in its discretion, grant a request
to reconsider any previous Commission decision where the requesting
party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed a formal complaint alleging discrimination on the
basis of race (Black), when she was not selected for the position of
Supervisory Production Controller, GS-12, within the Directorate of
Operations. After an investigation an EEOC Administrative Judge (AJ)
issued a decision finding that complainant was discriminated against
when she was not selected for the position. Specifically, the AJ found
evidence that the selectee was preselected for the position, that the
selecting official manipulated the classification procedure to benefit
his selection, and that the selecting official erred in not considering
education as a factor in the selection. As relief, the AJ awarded
$2,000.00 in compensatory damages, retroactive promotion and back pay.
The agency issued a final order not implementing the decision, and filed
an appeal. The prior decision found substantial evidence in the record
to support the AJ's decision.
In its Request, the agency makes several arguments. As an initial matter,
the agency contends that although it has evidence that the Commission
received its brief on appeal, the prior decision noted that neither
party submitted any brief on appeal. Furthermore, the agency argues
that no evidence was produced by complainant as to her entitlement to
compensatory damages, and therefore, the agency asks that we decline to
award such damages. Finally, the agency claims that the AJ and the prior
decision made numerous errors of fact, and the decision is not supported
by substantial evidence. Specifically, the agency contends that if any
classification errors were made, they were made in complainant's benefit,
not detriment. Second, it argues that complainant did not have the
requisite supervisory skills required by the position, and therefore,
she did not score as high as the selectee.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. We agree that the prior decision failed to consider the
agency's Statement on Appeal. However, after a review of the Statement,
and the Statement in Support of its Request for Reconsideration, we
find no clearly erroneous interpretation of material law or fact as to
liability. Complainant established a prima facie case of discrimination,
and there was credible evidence that the selectee was pre-selected.
Taken together, we find this was sufficient evidence to uphold th
AJ's decision. See Adams v. United States Postal Service, EEOC Appeal
No. 07A10061 (February 10, 2003)(pre-selection evidence of pretext);
Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133 at 147-48 (2000)
However, we do find that the prior decision should be modified with
respect to the award of compensatory damages. We find that the agency
is correct that complainant neither asked for, nor did she prove her
entitlement to such damages. 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. We do not find substantial evidence in the
record to support the AJ's findings that complainant was stressed after
the events in question, and decline to award her compensatory damages.
The decision in EEOC Appeal No. 07A30104 remains the Commission's final
decision, with the above modification. There is no further right of
administrative appeal on the decision of the Commission on this request.
ORDER (D0403)
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 retroactively promote complainant to the position of
Supervisory Production Controller, GS-12, or a substantially equivalent
position, retroactive to the date she was not selected for the position,
with back pay and interest. Complainant shall have 15 days from receipt
of the offer to accept or decline the offer. Failure to accept the
offer within 15 days will be considered a declination of the offer,
unless the complainant can show that circumstances beyond her control
prevented a response within the time limit.
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, no later than sixty (60) calendar days after the date
this decision becomes final. 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."
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall require that the Selecting Official and the Deputy
Commander to take 16 hours of training in laws prohibiting employment
discrimination.
Within sixty (60) calendar days of the date this decision becomes
final, the agency shall consider taking disciplinary action against
Selecting Official and the Deputy Commander. The agency shall report
its decision. 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 shall post a notice in accordance with the paragraph below.
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 back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Red River Army Depot, Texarkana,
Texas 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
1/14/05
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, 42 U.S.C. Section 2000 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 DISABILITY or their
EEO ACTIVITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Red River Army Depot, Texarkana, Texas facility (hereinafter "the
facility") supports and will comply with such federal law and will not
take action against individuals because they have exercised their rights
under law.
The facility has been found to have discriminated against an employee
based on race when she was not selected for the position of Supervisory
Production Controller.
The agency has been ordered to promote complainant to the position of
Supervisory Production Controller or a substantially equivalent position
together with back pay, and to require the selecting officials to undergo
EEO training.
The facility 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