01971582
02-05-1999
Deborah A. James, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Deborah A. James, )
Appellant, ) Appeal No. 01971582
v. ) Agency Nos. BHEFF09404E0240
Louis Caldera, ) BHEFF09412E0640
Secretary, ) Hearing Nos. 310-96-5181X
Department of the Army, ) Hearing Nos. 310-96-5182X
Agency. )
DECISION
The Commission accepts appellant's timely<1> appeal from a final
agency decision ("FAD") concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. See EEOC Order No. 960.001.
The issues presented are whether appellant was subjected to retaliation
for prior EEO activity when her desk was moved from her office and
placed in the patients' waiting area, or subjected to discrimination
based on race (African-American) and retaliation when she was assigned
additional duties and harassed by the Head Nurse's questions regarding
her EEO complaints.
At the time in question, appellant was employed as a Nursing Assistant,
GS-4. In February 1994, appellant filed an EEO complaint which alleged
that she had been subjected to discrimination on the basis of her race
when she was denied a performance award. (The record indicates that
the agency later issued a final decision finding that appellant was
discriminated against.) Thereafter, appellant filed the complaints
in issue, which the agency accepted and processed in accordance with
all procedural prerequisites. The complaints were heard before an EEOC
Administrative Judge ("AJ") who thereafter issued a recommended decision
("RD") finding that appellant had been subjected to reprisal.
The AJ found that after appellant filed her initial EEO complaint,
the Head Nurse, who was her second level supervisor, instructed that
appellant's desk be relocated from a private office into the patients'
waiting area. The Head Nurse maintained that the desk was moved to
free appellant's private office for other uses, to make room for new
furniture, and to ensure that appellant could greet arriving patients.
However, both appellant's immediate supervisor (the Staff Sergeant)
and a physician voiced objections to the change and suggested other
options, which had been ignored by the Head Nurse. The AJ found that it
was not necessary to move appellant's desk out of the office. The AJ
further found that the Head Nurse had retaliated against appellant
by assigning her various additional duties and by pursuing a course of
harassment against appellant, which included monitoring her arrival time,
scrutinizing her activities and inquiring on a frequent, if not daily,
basis about the status of her prior EEO complaint which was still pending
during the events in question.
Regarding the relief recommended by the AJ, the AJ noted that appellant
was no longer employed by the agency. Further, while appellant testified
that she suffered from stress as a result of the Head Nurse's actions,
she also testified that she had various other illnesses which predated
the actions in question, including lung disease which caused multiple
joint pains, fibromyalgia, sarcoidosis arthritis and complications
from surgical procedures. However, the AJ found �some evidence of
directly related medical expenditures� and �leave used [by appellant]
for treatment required because of� the acts in question. Accordingly,
the AJ recommended that appellant be reimbursed for directly related
medical expenditures, that she be restored the leave which she took for
treatment required because of the acts in question, that she be awarded
her reasonable attorney's fees, that the agency post a notice, and that
the agency consider her claim for compensatory damages.
In its FAD, the agency timely rejected the RD.<2> The agency found that
neither of appellant's allegations concerned �an actionable �adverse
personnel action' under Title VII� and, therefore, appellant could not
establish a prima facie case of discrimination or reprisal. Assuming for
the sake of argument that appellant could establish a prima facie case
of discrimination or reprisal, the agency found that the assignment of
additional duties, the discussions about EEO concerns and the utilization
of work space were well within the Head Nurse's authority, and that
appellant failed to establish that the legitimate reasons proffered for
the actions were pretextual. In this regard, the agency found that the
AJ relied too heavily on the testimony of the Staff Sergeant, a close
friend of appellant's, who was out of the workplace for a significant
period of time.<3>
On appeal, appellant's counsel argues that the AJ properly determined
that appellant was subjected to retaliatory harassment and that this
course of harassment constitutes a claim within the meaning of the
Commission's Regulations. In its comments on the appeal, the agency
argues that its FAD correctly disposed of appellant's complaint.
The Commission has held that in order to establish a case of harassment
that creates a hostile working environment, the harassment of which
appellant complains generally must be ongoing and continuous in order
to constitute unlawful discrimination. A few isolated incidents are
usually not sufficient to show harassment. McGivern v. United States
Postal Service, EEOC Request No. 05930481 (March 17, 1994); Vargas
v. Department of Defense, EEOC Request No. 05931047 (October 7, 1993).
Therefore, in assessing whether the alleged harassment affected a term,
condition, or privilege of appellant's employment, the conduct at issue
must be viewed in the context of the totality of the circumstances,
considering, inter alia, the nature and frequency of offensive encounters
and the span of time over which the encounters occurred. McGivern, citing
Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1988);
Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1993).
We find that the AJ correctly determined that appellant's complaints
asserted a pattern of conduct which affected a term, condition or
privilege of her employment and, therefore, that the complaints state
an actionable claim under the Commission's Regulations.
Further, after a thorough review of the record and the arguments on appeal
(including argument and evidence not specifically addressed herein), the
Commission finds that the RD adequately set forth the relevant facts and
analyzed the appropriate regulations, policies and laws. The Commission
notes that it generally will not disturb the credibility determination of
an AJ where, as here, such determinations are based on the observation
of the witnesses. Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,
EEOC Request No. 05900589 (July 26, 1990). Accordingly, the Commission
discerns no basis to disturb the AJ's finding that appellant established
that the complained of actions constituted reprisal. Therefore, it is
the decision of the Commission to REVERSE the FAD. In order to remedy
appellant for the discriminatory conduct, the agency shall provide
appellant the relief set forth in the RD, as ordered below.
ORDER (D1092)
The agency is ORDERED to take the following remedial actions:
(1) The agency shall restore the leave taken by appellant for treatment
required because of the retaliatory actions, and shall reimburse
appellant for directly related medical expenditures. Appellant shall
cooperate in the agency's efforts to compute the amount of leave and
other sums due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of such
leave or other sums due, the agency shall issue a check to appellant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. Appellant 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."
(2) The agency shall conduct training for the Head Nurse regarding a
supervisor's obligations under Title VII of the Civil Rights Act of 1964.
(3) The agency shall consider appellant's claim for compensatory damages
incurred as a result of the agency's discriminatory actions.<4> Within
15 days of the date this decision becomes final, the agency shall notify
appellant of her right to present evidence to the agency regarding her
claim for compensatory damages. Appellant shall provide objective
evidence that the damages in question were a result of the agency's
discrimination and of the amount of the claimed damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Within 30 days of the submission of such evidence, the agency shall
issue a final agency decision on this issue, with appropriate appeal
rights to the Commission.
(4) 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 foregoing corrective actions have been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Dermatology and Neurology Clinic,
Darnall Army Community Hospital, Fort Hood, 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.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request
containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
February 5, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The record contains a copy of a envelope from appellant's counsel
to the Commission, postmarked November 15, 1996. Apparently because
of a typographical error, one digit of the Commission's Post Office
Box is incorrect and the envelope reflects that it was returned to
counsel as �addressee unknown.' On December 5, 1996, counsel filed
material dated November 15, 1996, and included the original envelope.
As the appeal was initially postmarked within the time period specified
by 29 C.F.R. �1614.402(a), the Commission exercises its discretion to
accept the otherwise untimely appeal. Cf. Rodriguez v. Department of
the Air Force EEOC Request No. 05940933 (June 2, 1995)(The Commission
exercised its discretion to accept an otherwise untimely appeal which
was erroneously filed with a District Office rather than the Office of
Federal Operations).
2 While the RD is dated July 16, 1996, the record reflects that the AJ did
not transmit it to the agency until September 16, 1996. Accordingly, the
FAD was timely issued on October 10, 1996. See 29 C.F.R. �1614.409(g).
3The record reflects that the Staff Sergeant filed an EEO complaint
contending that she was subjected to retaliation when the Head Nurse
allegedly threatened to issue her a Letter of Counseling because of
statements she made in an affidavit filed in connection with appellant's
complaints.
4 In Jackson v. U.S. Postal Service, EEOC Appeal No. 01923399 (November
12, 1992), request for reconsideration denied, EEOC Request No. 05930306
(February 1, 1993), the Commission held that Congress afforded it the
authority to award such damages in the administrative process. See also
Turner v. Department of the Interior, EEOC Appeal Nos. 01956390 and
01960518 (April 27, 1998).