Erin E. Valentine, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionDec 10, 2003
07A30098 (E.E.O.C. Dec. 10, 2003)

07A30098

12-10-2003

Erin E. Valentine, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


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.