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.