0520140505
08-19-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520140505
Appeal No. 0720130019
Hearing No. 470-2011-00049X
Agency No. ARFTCAMP09DEC05860
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in Complainant v. Department of the Army, EEOC Appeal No. 0720130019 (June 25, 2014). 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(c). For the following reasons, the Agency's request for reconsideration is DENIED.
BACKGROUND
In the appellate decision, Complainant, a Supervisory Criminal Investigator in the Agency's Criminal Investigative Division at Fort Campbell, Kentucky alleged that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity when: (1) she was subjected to persistent questions and harassment from management concerning her ability to perform the duties of her position because she was a mother of several young children; (2) she was treated less favorably than other male co-workers in terms of training opportunities and opportunities to participate in investigatory and other work-related functions; and (3) on January 4, 2010, she was terminated during her probationary period.
A hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) was held. The AJ found that Complainant failed to establish a prima facie case of reprisal as to all of her claims because she had no prior EEO activity. With respect to her hostile work environment claim, however, the AJ concluded that Complainant had been subjected to a hostile work environment based on her race and sex. Specifically, the AJ determined that Complainant brought to the attention of several Agency officials that she was being subjected to numerous incidents of harassment by Agency employees. Specifically, several co-workers were unhappy that Complainant was supervising them and receiving greater pay. A coworker (CW1) stated that Complainant was not qualified to be a supervisory agent and that the Agency could have selected someone else. A second coworker (CW2) stated that it was a "slap in the face" because Complainant wore a shirt (received after graduation from the initial two-week course) that stated "Special Agent" on it and that Complainant had better care what the other agents thought or "her life would be hell." The co-workers teased Complainant when they found out that she was a single mother of several children. The co-workers accused Complainant of being disruptive and unprofessional during training at Fort Leonard Wood, which eventually led to her termination.
The record indicated that Complainant raised the harassing incidents with her supervisor (S1) and, instead of stopping the conduct, he condoned it. For example, instead of taking a firm position against the employees, S1 made the comment "folks still not letting [Complainant] play too?" Complainant explained to S1 that she could perform her duties despite having children and being a single mother during their first meeting. Following that meeting, Complainant indicated that she experienced an onslaught of harassment and was ostracized by virtually the entire white male workforce. Rather than stopping the harassment, S1 asked "Do you blame them?"
Regarding her training, the AJ found that, while her co-workers made it difficult for Complainant to receive adequate training opportunities and even attempted to thwart her training, she was able to receive all the necessary training and investigative opportunities. As a result, the AJ found that Complainant had not been discriminated against as to this claim.
Finally, with regard to her termination, the AJ found that, while the Agency had not identified any performance deficiencies, it had articulated a legitimate, nondiscriminatory reason for its actions. The Agency indicated that Complainant was terminated because of her conduct during the training in Fort Leonard Wood, Missouri. Specifically, the Agency claimed that Complainant was disruptive, unprofessional, and engaged in inappropriate conduct by "using her cell phone too frequently or in such a manner that it disrupted the class." The AJ determined however that the reasons given by the Agency was pretext for unlawful discrimination. The AJ found that there was no credible evidence showing that Complainant engaged in the alleged misconduct. The AJ determined that the evidence of the alleged misconduct came mainly from the group of white males who ganged up on Complainant because they could not bear that an African-American female was supervising them. The AJ noted that the management officials who initiated Complainant's termination did not inform her of the allegations against her nor give her an opportunity to respond to any allegation or concern prior to her termination, i.e., Complainant did not know the reasons for her termination until after she was terminated.
Further, while Complainant was accused of using her cell phone during the training session, the testimonial evidence showed that Complainant only looked at her phone in order to see whether or not she had a call or text message. The AJ found that there was no credible evidence presented showing that Complainant's phone rang loudly during the training session or that she was texting or talking on her phone during the period in question. The record showed that Complainant stepped outside the classroom to talk or text on her phone with the permission of the course manager. Additionally, the AJ noted that the testimonial evidence showed, even if Complainant was texting during the training sessions, she was not the only employee engaged in that conduct. The record showed that several white trainees were texting during the training sessions, but none of them were accused of being disruptive and unprofessional. The AJ also found that the Lieutenant and his detectives were not credible with regard to their testimony that adverse information was associated with Complainant's former business. The AJ concluded that the Agency's only interest was in terminating Complainant. Accordingly, the AJ found that Complainant had shown that she was subjected to discrimination based on her sex and race when she was terminated.
The AJ ordered the Agency to: reinstate Complainant to the same or similar position with a six-month probationary period under a neutral supervisor and to remove all negative references or information that the Agency may have placed in her personnel file; pay Complainant back pay in the amount of $278,237.27 plus interest; and provide Complainant with all other benefits she would have received including overtime, step or within-grade increases, and interest to her Thrift Savings Plan (TSP). Additionally, the AJ ordered the Agency to pay Complainant $22,500.00 in compensatory damages and $9,100.00 in attorney's fees. Finally, the AJ directed the Agency to conduct sensitivity training and to remove S1 from his supervisory position as well as any and all the supervisors in Complainant's chain-of-command who knew Complainant was being subjected to a hostile work environment, but failed to take prompt remedial action to end the harassment.
The Agency issued a final order rejecting the AJ's finding of discrimination and the relief ordered. The Commission, in EEOC Appeal No. 0720130019, agreed with the AJ that Complainant failed to establish a prima facie case of reprisal. Further, the Commission agreed that the record showed that Complainant was not subjected to discrimination as to training opportunities. With regard to Complainant's hostile work environment claim and termination, the Commission found that the AJ's finding of a discriminatory hostile work environment was supported by substantial evidence.
With regard to the awarded remedies, the Commission found that the record supported the award of $22,500.00 in non-pecuniary compensatory damages, and attorney's fees. However, the Commission modified the AJ's award regarding reinstatement. The Commission found that the regulation did not require the Agency to place Complainant in a substantially equivalent position at a location of Complainant's choice. The Commission also found that the AJ erred by including Law Enforcement Availability Pay (LEAP) in the back pay award. As LEAP was authorized premium pay for all irregular and occasional overtime work for employees classified as law enforcement officers. The Commission found that Complainant should be awarded LEAP once she accepts reinstatement and completes the training. Further, the Commission found that the AJ erred in ordering the Agency to remove S1 and the other management officials from their management positions. The Commission determined that the AJ erred as a matter of law in ordering such a remedy, indicating that the imposition of discipline is left to the discretion of employing agencies and is not an available remedy pursuant to Title VII. Accordingly, the Commission reversed the Agency's final order, affirming the AJ's finding of discrimination but with a modified remedy.
REQUEST FOR RECONSIDERATION CONTENTIONS
In the Agency's request for reconsideration, the Agency reiterates the arguments it raised on appeal. For example, the Agency again argues that the evidence presented establishes that Complainant's behavior during the training session and the investigation regarding her former building was more than enough to justify the Agency's decision to terminate her during her probationary period.
In response, Complainant also restates many of the contentions she raised on appeal, but, in addition, states that the Agency did not meet the criteria for reconsideration.
ANALYSIS AND FINDINGS
After reviewing 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(c), and it is the decision of the Commission to deny the request. We remind the Agency that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. We find the Agency failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Other than the Agency's conclusory statements, it has offered no evidence which remotely suggests that the previous decision erred with regard to the finding of discrimination. Further, with regard to the Agency's argument that Complainant could have been terminated for any reason during her probationary period, we note that although this is correct for the most part, the Commission has long held that one exception is that a probationary employee cannot be terminated for discriminatory reasons. In this case, the Commission determined that discrimination played a role in Complainant's termination.
Accordingly, the decision in EEOC Appeal No. 0720130019 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency, to the extent that it has not already done so, is ordered to take the following remedial action within 120 days of the date this decision becomes final:
1. The Agency shall offer Complainant reinstatement with a six-month probationary period to her position at the Agency, or to a substantially equivalent position. Complainant has fifteen (15) days to accept or decline the Agency's offer of reinstatement. If Complainant accepts the Agency's offer of reinstatement, the Agency shall schedule Complainant for the first available law enforcement training that she would have attended had she not been discriminatorily terminated. If Complainant should decline the Agency's offer of reinstatement, the date of her declination shall be the end date for any back pay due Complainant. In addition, the Agency shall expunge from its records any adverse materials related to Complainant's termination.
2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits (including any applicable overtime, Thrift Savings Plan contributions, and grade and/or step increases) due Complainant since January 4, 2010, the date of her termination, through the date she accepts or declines to accept the offer of reinstatement. If Complainant accepts the Agency's offer of reinstatement and completes the aforementioned law enforcement training, the Agency shall include LEAP for the back pay period from the date she would have completed the training if not discriminatorily terminated until the date of her reinstatement. If Complainant declines the Agency's offer of reinstatement or fails to complete the requisite law enforcement training, Complainant shall not receive LEAP through back pay. 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 Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. 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. The Agency shall pay non-pecuniary compensatory damages to Complainant in the amount of $22,500.00.
4. The Agency shall pay Complainant $9,100.00 in attorney's fees.
5. The Agency shall provide training to the responsible management officials regarding their responsibilities under EEO laws, with a special emphasis on sex and race discrimination and preventing and remedying harassment.
6. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. 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).
7. The Agency shall immediately 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 verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its US Army Criminal Investigation Command facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__8/19/15________________
Date
2
0520140505
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140505