Gloria J. Walker, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionApr 8, 1999
05980504 (E.E.O.C. Apr. 8, 1999)

05980504

04-08-1999

Gloria J. Walker, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.


Gloria J. Walker v. Social Security Administration

05980504

April 8, 1999

Gloria J. Walker, )

Appellant, )

) Request No. 05980504

v. ) Appeal No. 01961281

) Agency No. 302-92

Kenneth S. Apfel, ) Hearing No. 340-94-9468X

Commissioner, )

Social Security Administration, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

INTRODUCTION

On March 26, 1998, Gloria J. Walker (hereinafter referred to as the

appellant) timely initiated a request to the Equal Employment Opportunity

Commission (the Commission) to reconsider the decision in Gloria J. Walker

v. Kenneth S. Apfel, Commissioner, Social Security Administration,

EEOC Appeal No. 01961281 (February 25, 1998). EEOC regulations provide

that the Commissioners may, in their discretion, reconsider any previous

decision. 29 C.F.R. �1614.407(a). A party requesting reconsideration

must submit written argument or evidence which tends to establish one or

more of the following criteria: new and material evidence is available

that was not readily available when the previous decision was issued,

29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation or material fact, or misapplication of

established policy, 29 C.F.R. �1614.407(c)(2); the decision is of such

exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3).

ISSUE PRESENTED

The issue presented is whether the previous decision properly determined

that (a) the agency did not discriminate against appellant based on race

(black); (b) the agency discriminated against appellant in reprisal for

prior EEO activity, and (c) appellant was not entitled to individual

relief.

BACKGROUND

Appellant contacted an EEO counselor on November 26, 1991, and, on March

11, 1992, filed a formal complaint of discrimination based on race (black)

and reprisal. Following an investigation, appellant requested a hearing,

and an EEOC Administrative Judge (AJ) issued a Recommended Decision (RD)

on September 26, 1995, finding discrimination based on reprisal with

regard to two issues. The agency adopted the RD as its final decision.

On appeal, the previous decision affirmed the agency, and appellant has

filed the instant request.

In her complaint, appellant alleged discrimination on the basis of

race (black) and in reprisal for prior EEO activity with regard to her

termination effective December 11, 1991, during her probationary period

and other actions by her immediate supervisor (S1) and second level

supervisor (S2).<1> The AJ considered appellant's claims:

1. based on race with regard to a desk audit (performance review)

on November 6;

2. based on race when she was denied two days of advance sick leave on

November 26;

3. based on race when she was given a notice of termination on November

27;

4. based on race and reprisal<2> when she was placed on administrative

leave from December 4-11; and

5. based on race and reprisal when S2 did not read a letter complimentary

of appellant at a staff meeting on December 13, subsequent to her

termination.

For reasons set out in the RD, the AJ found no discrimination based on

race with regard to all allegations.<3> In addition, the AJ considered

whether appellant set out a hostile work environment claim based on race

and/or reprisal and found that she did not. The AJ found, however, that

with regard to Issues (4) and (5), the agency's actions were based in part

on reprisal based on the proximity between S2's awareness of appellant's

EEO contact and the actions described. In particular, the AJ held that,

while S2 would have taken the actions described in Issues (4) and (5)

absent discrimination, he took them, in part, due to negative feelings

regarding appellant's EEO activity. The previous decision agreed with

the AJ's findings.

With regard to the question of remedy, the AJ did not afford any relief,

either injunctive or personal to appellant. The previous decision,

however, ordered injunctive relief pursuant to the Civil Rights Act

(CRA),<4> which had become effective shortly before appellant's

termination. The previous decision ordered that the agency conduct

training for management officials, post a notice, and award attorney's

fees to appellant.

Appellant has filed a request for reconsideration (RTR) contending that

the AJ erred when she failed to find that the testimony of S2 with

regard to his knowledge of appellant's EEO activity was not credible

and when she did not impose an adverse inference with respect to the

destruction of S1's personal notes. Also, appellant briefly asserts that

she was not made whole, in that, the AJ failed to consider her request

for compensatory damages. The agency filed comments contending that

appellant's request does not meet the criteria of 29 C.F.R. �1614.407(c).

ANALYSIS AND FINDINGS

Appellant's Claims of Discrimination

We have reviewed the record and find no reason to disturb the findings

of the AJ and the previous decision with regard to appellant's claims

based on race in Issues (1), (2), and (3). See fn. 3. We find that the

agency's actions with regard to Issues (4) and (5) were based, in part,

on discriminatory animus for appellant's participation in the EEO process.

See Revised Enforcement Guidance On Recent Developments in Disparate

Treatment Theory, EEOC Notice No. N-915.002 (7/14/1992) (Guidance),

p. 7, fn. 8. Further, as found by the AJ and affirmed by the previous

decision, we find that the agency would have taken the actions at issue,

i.e., it would have placed appellant on administrative leave and not have

read the letter, even absent the discriminatory factors. We turn now

to consideration of appellant's request. Appellant objects to the AJ's

failure to reject the testimony of S2. Based on our independent review

of the record, we agree with the AJ's action, finding no reason to call

into question the credibility of S2. In general, great deference is

given to an AJ's determinations on credibility, since the AJ has the

opportunity to observe the "variations in demeanor and tone of voice

that bear so heavily on the listener's understanding and belief in what

is said." Anderson v. Bessemer City, N.C., 470 U.S. 564, 575 (1985).

In addition, the question of S2's awareness of appellant's EEO contact

only goes to Issues (4) and (5), which occurred after his interview with

an EEO counselor. See fn. 2.

Appellant also contends that the AJ should have sanctioned the agency

with regard to S1's notes. We find, however, that the AJ properly ruled

that the notes were personal to S1 and, consequently, their destruction

did not warrant an adverse inference. Further, we note that S1 testified

from her personal recollection and that the AJ concluded that production

of the actual notes would not have affected her findings. Inasmuch as the

AJ points to clear and sufficient evidence in support of her findings, we

find that S1's notes would not have affected the analysis of this matter.

Mixed Motive Cases

Finally, appellant indicated that she was not made whole for the agency's

discriminatory actions. Cases where, such as the instant matter, there is

a finding that discrimination was a motivating factor for an employment

action, i.e., in which the agency acted on the bases of both lawful

and unlawful reasons, are known as "mixed motive" cases. Prior to the

CRA, which became effective November 21, 1991, an employer could avoid

liability in mixed motive cases if it could show that it would have made

the same decision even absent the unlawful factor. Price Waterhouse

v. Hopkins, 490 U.S. 228 (1989). The Supreme Court determined that when

a complainant showed that an impermissible factor played a role in an

adverse employment decision, the burden shifted to the agency to show

that it would have made the same decision absent the unlawful factor.

Id. at 252. If the agency met its burden, the Court held that it could

avoid liability on the discrimination charge. Id. at 237.

As noted in the previous decision, the CRA effectively overruled that

part of the Court's decision that allowed an agency to avoid liability

by showing that it would have made the same decision even absent the

unlawful discrimination.<5> The CRA added Section 703(m) to Title VII,

making clear that a violation is established when a complaining party

demonstrates that "race, color, religion, sex, or national origin was a

motivating factor for any employment practice, even though other factors

also motivated the practice."

42 U.S.C. �2000e-2(m). Once a complainant demonstrates that

discrimination was a motivating factor in the agency's action, it is

the agency's burden to demonstrate that it would have taken the same

action even if it had not considered the discriminatory factor. If the

employer is able to demonstrate that it would have made the same decision

even absent the unlawful discrimination, the complainant is not entitled

to personal relief, i.e., damages, reinstatement, hiring, promotion,

back pay, but may be entitled to declaratory relief, injunctive relief,

attorney's fees and costs. See Guidance, Part III.C; Cody v. USPS,

EEOC Appeal No. 01950574 (September 5, 1996).

Appellant's request for damages is denied, since we agree with the AJ that

notwithstanding appellant's EEO activity, the agency would have taken

the same actions absent discrimination. However, since the agency's

actions were motivated, in part, by unlawful reprisal, we order the

relief set out below.

CONCLUSION

After a review of the appellant's request for reconsideration, the

agency's reply thereto, the previous decision, and the entire record, the

Commission finds that the appellant's request fails to meet the criteria

of 29 C.F.R. �1614.407(c), and it is the decision of the Commission to

deny the appellant's request. The decision in EEOC Appeal No. 01961281

(February 25, 1998), as modified, remains the Commission's final decision.

There is no further right of administrative appeal on a decision of the

Commission on a Request for Reconsideration. The agency is directed to

comply with the Order, below.<6>

ORDER

The agency is ORDERED to take the following remedial action:

A. The agency is directed to conduct sensitivity training for S1 and S2,

the management officials referred to herein. The agency shall address

these managers' responsibilities with respect to Federal equal employment

opportunity law, especially with regard to the protection from retaliation

for participation in the EEO process.

B. 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 that the

corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Oceanside, California, District

Office, 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 APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (P0993)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil 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. 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.

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:

April 8, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat

1All events occurred in 1991, unless stated otherwise.

2The AJ held that S2 was aware of appellant's EEO activity at least

as of November 29 when an EEO counselor contacted him and that he may

have been aware of appellant's call to an EEO counselor on November 27.

See R.D. p. 35. Nevertheless, the import of S2's knowledge becomes

relevant only as to Issues (4) and (5), which alleged discrimination

based on reprisal.

3In considering the issue of appellant's termination, the AJ noted the

"rapid deterioration in [the] working relationship" between appellant

and S1 in late October, and she ascribed it "in part from differences

in personalities." RD, p. 31. The AJ found that the agency articulated

legitimate, nondiscriminatory reasons for appellant's removal, i.e.,

that her behavior was problematic and disruptive and she failed to follow

directions; in fact, the AJ rejected the agency's characterization of

appellant's performance as not supported by the evidence and attributed

the removal action to a personality clash that was not based on racial

considerations or racially motivated.

4The Civil Rights Act (CRA) of 1991, Pub. L. No. 102-166, 105 Stat. 107,

42 U.S.C. �1981(a), (1991) became effective November 21, 1991.

5Although the decision in Daly v. USPS, EEOC Appeal No. 01933547

(September 14, 1995), cited in the previous decision, concerned events

that occurred prior to the CRA, footnotes 7, 9, and 10 explain the impact

of the CRA on mixed motive cases.

6The action ordered by the previous decision is corrected to note that

the Commission affirms the FAD, in part, and reverses, in part.