07A30098
12-10-2003
Erin E. Valentine v. Department of Justice
07A30098
December 10, 2003
.
Erin E. Valentine,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 07A30098
Agency No. P-2002-0173
Hearing No. 260-A2-8150X
DECISION
Following its May 2, 2003 final order, the agency filed a timely appeal
which the Commission accepts pursuant to 29 C.F.R. � 1614.405. On appeal,
the agency requests that the Commission affirm its rejection of an Equal
Employment Opportunity Commission (EEOC) Administrative Judge's (AJ)
finding that the agency discriminated against the complainant based
on race (African American) and sex (female) during her probationary
period when she resigned in lieu of being terminated from her position
of Correctional Officer, GS-0007-05 with the Bureau of Prisons, North
Central Region, Federal Correctional Institution in Oxford, Wisconsin.
She was separated about 4� months after being hired. The agency also
requests that the Commission affirm its rejection of the AJ's order.
The AJ ordered the agency to reinstate the complainant at or near
her home in Texas, pay back pay until her reinstatement, cancel her
forced resignation and expunge any adverse materials relating to it,
pay non-pecuniary damages of $4,000 and pecuniary damages of $3,000,
mandate sex and race discrimination training, and post a notice regarding
discrimination. The complainant requests that the AJ's finding of
discrimination be upheld.
Following an investigation and hearing, the AJ issued the decision
referenced above. 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.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact for the
discrimination determination are supported by substantial evidence, and
the AJ correctly applied the appropriate regulations, policies, and laws.
Regarding remedy, on appeal the agency only makes argument about the
award of pecuniary damages. The complainant generally testified that
she calculated her moving expenses from Wisconsin to her parents home
in Texas to be $3,000 for a mover, gas, food, and hotel. The AJ
credited this testimony, and awarded $3,000 in pecuniary damages.
The agency argues that an award of pecuniary damages must be supported
by documentation such as receipts, which were not submitted. In response
to the agency's appeal, the complainant counters that the agency did not
request this information. She submits no documentation of her moving
expenses on appeal.
In the Commission's policy guidance of Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, Section II
(A)(1) (July 14, 1992) (located at www.eeoc.gov), the Commission advised
that the amount to be awarded for past pecuniary losses can be determined
by receipts, records, bills, cancelled checks, confirmation by other
individuals, or other proof of actual losses and expenses. Damages for
past pecuniary damages will not normally be sought without documentation.
Id. The EEOC has stated that documentation, typically in the form of
receipts, bills, or physician statements are required to support an award
of past pecuniary damages. Almera v. Department of Veterans Affairs,
EEOC Appeal No. 01A13618 (January 30, 2002). The Commission ruled that
such documentation can take the form of a credible statement itemizing
expenses. Van Hoose v. Department of the Navy, EEOC Appeal Nos. 01982628
and 01990455 (August 22, 2001). The complainant's general uncorroborated
testimony was insufficient to support an award of past pecuniary damages.
After a careful review of the record, including arguments and evidence
not specifically discussed in this decision, the Commission reverses the
agency's final order and directs the agency to take corrective action
in accordance with the Order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
(1) The agency is ordered to offer the complainant the position of
Correction Officer at a facility closest to her residence in Texas, or
another location which the complainant agrees, retroactive to February
12, 2002, within 60 calendar days after this decision becomes final.
(2) The agency is ordered to issue a check to the complainant for
the appropriate amount of back pay and interest thereon, and provide
appropriate career ladder and within-grade increases, seniority and
other benefits, less appropriate mitigation, under pertinent Office of
Personnel Management Regulations, and 29 C.F.R. �1614.501, no later than
120 calendar days after this decision becomes final.<1> The complainant
is ORDERED to cooperate in the agency's efforts to compute the amount
of back pay, interest, and benefits due, and to provide all necessary
information the agency requests to help it comply. If the complainant
declines to accept the offered position, back pay liability shall be up
to the effective start date the complainant is offered.
(3) 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 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."
(4) The agency shall issue a check to the complainant for $4,000
in compensatory damages within 60 calendar days after this decision
becomes final.
(5) The agency shall expunge from the complainant's official personnel
file and supervisory files documentation relating to her proposed
removal and forced resignation, and cancel her forced resignation.
(6) The agency shall train the agency officials who still work for
the agency and were involved in the discriminatory action on disparate
treatment race and sex discrimination. The instruction shall be directed
by a qualified trainer and be completed within 150 days after this
decision becomes final.
(7) The agency shall consider taking disciplinary action against the
officials involved in the discrimination. 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 back pay 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 Bureau of Prisons, North Central
Region, Federal Correctional Institution, Oxford, Wisconsin 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
December 10, 2003
__________________
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 violations of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. 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 with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Department of Justice, Bureau of Prisons, North Central Region,
Federal Correctional Institution, Oxford, Wisconsin supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law. The EEOC found that
an employee was discriminated against in violation of race and gender
when the employee was separated.
The Department of Justice will offer reinstatement, and pay back pay
and compensatory damages to the affected individual.
The Department of Justice, Bureau of Prisons, North Central Region,
Federal Correctional Institution, Oxford, Wisconsin 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
1While the agency may require the complainant to serve the balance of
the probationary period that was left after her resignation, she is
still entitled to the increases, benefits and seniority she would have
received but for the discrimination.