0120082461
08-26-2008
Glenda K. Ashford, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Glenda K. Ashford,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082461
Agency No. ARCEJACK06JAN00097
Hearing No. 110-2007-00079X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 3, 2008 final action 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.
Complainant alleged that the agency discriminated against her on the
bases of race (African-American), sex (female) and in reprisal for prior
EEO activity when:
1. on November 22, 2005, she was not selected for the position of Senior
Plan Formulation Specialist, GS-14, in the Planning and Policy Community
of Practice Control; and
2. in March 2006, she was not selected for a temporary developmental
assignment (for up to 120 days) as the Navigation Programs Manager in
the Operations Community of Practice.
Following an investigation and a hearing on June 12, 22 and 29, 2007,
the AJ found no race discrimination on claim 2 and found reprisal
discrimination on claim 1.1 The record reflects that on December 4,
2007, the AJ conducted a hearing on damages, and issued a decision on
February 27, 2008. In her decision, the AJ ordered that the agency to
pay complainant the difference between the compensation she actually
received and the full range of compensation, salary, bonus, and rate of
pay that she would have earned had she been promoted to the position of
Senior Plan Formulation Specialist, GS-14, in November 2005 (claim 1);
pay complainant $20,000 in non-pecuniary compensatory damages; provide the
identified Selecting Official (SO) with EEO training, with an emphasis
on anti-retaliation; and post a notice on all employee bulletin boards
stating that it was found in violation of Title VII. Thereafter, the
agency issued a final action dated April 3, 2008, fully implementing
the AJ's decision.
On appeal, complainant argues that the AJ erred when she found no race
discrimination concerning claim 2. Specifically, complainant argues that
the AJ applied the wrong basis in finding no discrimination, and that
she was alleging she was discriminated against on the basis of reprisal
when she was not selected for the temporary developmental assignment
as a Navigation Programs Manager. Complainant further argues that she
established a prima facie case of reprisal discrimination when she was not
selected for the subject temporary developmental assignment because the
identified management official was aware of her prior protected activity;
and that there is a "strong nexus" between her prior protected activity
and her non-selection.
Further, complainant requests that the Commission clarify the AJ's order
"with respect to a make whole remedy in this case and order the agency
to either retroactively promote the complainant in the position of GS-14
Senior Plan Formulation Specialist or a substantially equivalent position
to include processing of personnel actions to ensure the record reflects
the appropriate time in grade served at that level." Complainant states
that the agency was not in compliance with the AJ's order "when they did
not calculate back pay and associated benefits and inform the complainant
of that figure in writing in a timely fashion prior to issuing the Final
Decision and failed to incorporate and reference those figures into
its Final Decision." Complainant requests pecuniary and non-pecuniary
compensatory damages in the amount of $75,000.00 for pain, suffering
and emotional harm. Moreover, complainant requests reimbursement in
the amount of $750.00 for deposition transcripts and postage fees.
In response, the agency argues that it has substantially complied with
the AJ's February 27, 2008 order. Specifically, the agency argues
that it tendered complainant the amount of $20,000.00 in non-pecuniary
compensatory damages; completed its back pay calculation and reimbursed
complainant in the amount of $22,025.33; provided EEO training to the
identified SO; and posted the requisite 60-day notice of the posting
beginning June 4, 2008. In support of its assertions, the agency
submitted a copy of the Chief Financial Officer (CFO)'s memorandum dated
June 17, 2008. Therein, the CFO stated that the agency reimbursed
complainant in the amount of $42,025.83 ($20,000 in non-pecuniary
compensatory damages and $22,025.83 for pay and benefits settlement).
The record also contains a copy of two checks dated July 2, 2008 made out
to complainant in the amount of $20,000.00 (U.S. Treasury Check Number
8736-01484918) and $22,025.83 (U.S. Treasury Check Number 8736-01484919).
The record further contains a copy of the Equal Employment Opportunity
Manager's affidavit dated May 29, 2008 wherein she confirmed that the
identified SO took the requisite EEO training. Furthermore, the agency
submitted a copy of posting dated June 4, 2008 that was posted on all
employee bulletin board stating that it was found in violation of Title
VII with an expiration date of August 3, 2008.
The Merits of Claim 2
Having reviewed the record, we find that the evidence substantially
supports the AJ's decision.2 Even if we assume that complainant
established a prima facie case of race and reprisal discrimination,
we agree with the AJ that the agency provided legally sufficient
legitimate reasons for its actions and that complainant failed to
prove that these reasons were pretext. It is the decision of the Equal
Employment Commission to AFFIRM the agency's final action because the
AJ's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
Relief Awarded
Based on a review of the record, the Commission determines that the agency
has complied with the AJ's directive to pay complainant $20,000.00 in
non-pecuniary compensatory damages and consequently, she is not entitled
to additional interest. We further find that the agency has complied
with the AJ's directive to provide EEO training to the identified SO
and posted a notice on all employee bulletin boards stating that it was
found in violation of Title VII.
Regarding complainant's claim that she is entitled to additional pecuniary
and non-pecuniary compensatory damages in the amount of $75,000.00 for
pain, suffering and emotional harm, and $750.00 for deposition transcripts
and postage fees, we find that there is nothing in the AJ's February 27,
2008 Order concerning these two issues. After careful consideration of
complainant's arguments on appeal, as well as the record as a whole,
we conclude that complainant has not established that the AJ erred in
determining that the substantial evidence of record supported a damages
award in this case in the amount of $20,000.00. Therefore, we conclude
that this is not an appropriate circumstance for additional damages,
and complainant's request for such is denied.
With regard to the position of Senior Plan Formulation Specialist,
GS-14, complainant correctly asserts that she is entitled to retroactive
placement in the position as part of her make-whole relief. We will
therefore direct the agency to retroactively place complainant into
that position or to a substantially equivalent position, and to amend
its personnel records to reflect complainant's retroactive tenure.
With respect to the back pay, the Commission determines that it is
incapable of ascertaining the appropriate amount of back pay which is
owed complainant in accordance with the AJ's Order. The record reflects
that on July 2, 2008, the agency reimbursed complainant $22,025.83 in
back pay and benefits without elaboration. However, it is the agency's
obligation to ensure that its back pay calculations are clear, supported
by the record, and in accordance with 29 C.F.R. � 1614.501. Therefore,
we REMAND the matter to the agency, and direct the agency to provide
documentation clarifying how it has determined complainant's back pay
award as set forth in the ORDER below.3
ORDER
The agency shall take the following action within thirty (30) calendar
days after receipt of this decision:
(1) The agency shall retroactively instate complainant to the position of
Senior Plan Formulation Specialist, GS-14, or a substantially equivalent
position, and shall amend its personnel records to reflect complainant's
retroactive tenure in that position.
(2) The agency determination of complainant's back pay shall consist
of clear and concise, "plain language" statement of the methods of
calculations used for the instant matter and actual calculations applying
said formulas and methods. 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 other benefits,
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 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (S0408)
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 (Z0408)
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
August 26, 2008
Date
1The AJ did not address whether complainant established a prima facie
case of discrimination on the basis of sex. Because we determine herein
that the agency articulated legitimate, nondiscriminatory reasons for
its actions, we find it unnecessary to address this basis further.
2 We note that the AJ did not address discrimination based on reprisal
concerning claim 2 in her decision, although complainant had included
reprisal as a basis in her complaint. Additionally, the agency
investigation reflects that reprisal was raised in the complaint and
accepted for investigation. Thus, we will address discrimination based
on reprisal in the instant case.
3 On appeal, complainant does not challenge a April 21, 2007 partial
dismissal issued by the agency, regarding a third claim (that she was
subjected to harassment when the agency did not implement the corrective
actions required by the final agency decision on her prior complaint
identified as Agency No. ARCEQATL02SEP0006 issued on January 28, 2005);
therefore, we have not addressed this issue in our decision.
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0120082461
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036