0120113509
07-02-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120113509
Hearing No. 430-2008-00067X
Agency No. DLAR-07-0521
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 3, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Inventory Management Specialist, GS-11 at the Agency's Naval Aviation Forces Cell facility in Richmond, Virginia. Complainant applied for the position of Inventory Management Specialist, GS-12. She was rated qualified and she and 15 other candidates were referred for selection. The candidates were interviewed by the selecting official (SO), who indicated that in making the selection he considered the interview to be weighted at 98% and the candidates resume to be weighted at 2%. Complainant was not selected for the position, SO maintained that although technically sound she did not do well during the interview. A white female that had recently graduated from the intern program was selected for the position. The selectee was also the daughter of an SES employee at the Agency. Believing that she was better qualified for the position than the selectee Complainant filed the instant complaint.
On April 23, 2007, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female)1, and age (56) when she was not selected for the position of Inventory Management Specialist, GS-12.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. The AJ held a hearing on September 24, 2010, and found that Complainant did establish that she was better qualified for the position and that discrimination based on race played a role. The AJ found that SO's testimony was not credible as to why he chose the selectee over Complainant. Following the AJ's finding of discrimination based on race, the AJ issued an Order of Relief on April 25, 2011. The AJ awarded, among other things, back pay, placement of Complainant into an Inventory Management Specialist GS-12 position, attorney's fees, and compensatory damages in the amount of $10,000.
The Agency issued an order that fully implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in not awarding greater compensatory damages. Complainant maintains that, as a result of her nonselection, she experienced stress, humiliation, and embarrassment. She maintains that she retired because continuing to work in the aftermath of such a public and embarrassing nonselection was intolerable. On appeal, Complainant in order to establish the effect the nonselection had on her provided a new statement describing the anxiety and depression she experienced. She also provided statements from the EAP Counselors who treated her, statements from a Psychiatrist who treated her, and a description of the medication that she was prescribed as a result of her anxiety, sadness, and depression. This evidence was not provided to the AJ. Complainant requests that the damages be increased to between $200,000 to $250,000, in order to be consistent with the Commission's precedent and to compensate her for the harm she suffered as a result of the Agency's discriminatory actions.
In response, the Agency argues, among other things, that Complainant had the opportunity to present her evidence regarding compensatory damages and objects to the Commission's consideration of the new evidence. Moreover, the Agency contends that based on the evidence initially provided by Complainant the award given by the AJ was sufficient and consistent with the Commission's awards in other cases. The Agency noted that on March 25, 2011, Complainant submitted a Damages Submission, and attached an affidavit. On April 8, 2011, the Agency submitted its response to Complainant's Damages Submission, which objected to her claims and evidence and argued that an award of $250,000.00 was monstrously excessive and not in line with similar cases. As noted above, on April 25, 2011, the AJ issued an Order of Relief providing, among other things, $10,000 in compensatory damages.
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.
In the April 25, 2011, Order of Relief, the AJ made the following factual findings on compensatory damages:
(a) Complainant was able to continue her career as evidenced by her promotion to
GS-12, less than one year after her non-selection at issue, and there was no supportive evidence that her career "suffered a considerable loss" that is not addressed with back pay.
(b) Complainant presented limited personal testimony (without detail and supportive evidence) that her personal life had suffered due to the nonselection.
(c) Complainant presented no evidence of "recurring distress" or that she retired under duress.
(d) Complainant presented no evidence, other than a single statement, that she had been "devastated" and "continues to struggle financially." She did not proffer any medical or personal bills, losses, or related statements.
(e) There was no evidence that Complainant was under a doctor's care. She did not provide the name of a doctor or any evidence that she has received medical care.
As a general rule, the Commission will not consider new evidence on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to the investigation or during the hearing process. EEO Management Directive 110, Chapter 9 �VI.A.3 (1999). As Complainant has not shown that the new information she submitted on appeal was not available at the time of the hearing or when the AJ was considering the remedy in this case it will not be considered. Therefore, based on the information provided, we find no reason to question or disturb the AJ's award here. We also do not find it to be monstrously excessive or inconsistent with the cases cited by the AJ.
Accordingly, 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 Agency's final order. Specifically, we find that Complainant has not submitted evidence which demonstrates that the AJ's award of $10,000 was in error.
ORDER
The Agency, to the extent it has not already do so, shall, within one hundred and twenty (120) calendar days of this decision becoming final:
1. retroactively promote Complainant to the position of Inventory Management Specialist (lMS), GS-201O-12, as of April 1, 2007, with all related benefits, through the date of her voluntary retirement.
2. determine the appropriate amount of back pay, with interest, and other benefits due Complainant from April 1, 2007, until her voluntary retirement, pursuant to 29 C.F.R.�1614.501. 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. Once the Agency provides Complainant with the amount of back pay and other benefits, Complainant, within a reasonable period of time not to exceed six (6) months, shall provide the Agency with documentation showing any adverse tax consequences related to receiving the lump sum payment. Within sixty (60) calendar days of receiving Complainant's documentation, the Agency shall pay Complainant for the adverse tax consequences, if any.
3. pay Complainant $10,000.00 in compensatory damages.
4. pay Complainant $8,131.50 in attorney fees.
5. take corrective, curative, or preventive action to ensure that similar violations of the law will not recur. Such action shall include providing EEO training to responsible management officials regarding their obligations in preventing violations of employment discrimination laws.
6. consider taking appropriate disciplinary action against management officials responsible for the discrimination against Complainant. The Commission does not consider training to be disciplinary action. 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).
ATTORNEY'S FEES (H0610)
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 (K0610)
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 77960, Washington, DC 20013. 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 (G0610)
The Agency is ordered to post at its Naval Aviation Forces Cell, Navy Aviation Customer Facing Division, Aviation Customer Operations Directorate, Defense Supply Center in Richmond, Virginia 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
__7/2/14________________
Date
1 Complainant withdrew the bases of sex.
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2
0120113509
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013