07A40088
09-28-2004
Ida Bruce McMillian, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Ida Bruce McMillian v. Department of Transportation
07A40088
09-28-04
.
Ida Bruce McMillian,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 07A40088
Agency No. 2-02-2016
Hearing No. 110-2003-08460X
DECISION
Following its March 12, 2004 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 EEOC Administrative Judge's (AJ) finding of discrimination. For
the following reasons, the Commission reverses the agency's final order.
Complainant, an Equal Employment Opportunity Specialist employed at the
agency's Office of Civil Rights, FAA Southern Region facility, filed a
formal EEO complaint with the agency alleging that he was subjected to
discrimination on the bases of race (African-American) and sex (male)
when:
He was not selected for the position of EEO Specialist (Mediator) on or
about September 29, 2001.
The complainant also alleged that he was subjected to discrimination and
a hostile work environment on the bases of race (African-American), sex
(male), and in reprisal for prior EEO activity when:
He was not awarded a Superior Contribution Increase (SCI);
A group cash award was reduced from one thousand ($1,000) to five hundred
($500.00) dollars.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
The AJ held a hearing on October 21 and 22, 2003 and issued a bench
decision on November 17, 2003.
In the bench decision, the AJ found that the agency discriminated
against complainant on the bases of race and sex when it failed to
select complainant for the position of EEO Specialist Mediator and
on the basis of reprisal when it did not award complainant a Superior
Contribution Increase. The AJ found that complainant was not subjected
to discrimination when a group cash award was reduced from one thousand
($1,000) to five hundred dollars ($500.00) and was not subjected to a
hostile work environment due to race, sex or reprisal discrimination.<1>
The agency's final order rejected the AJ's finding of discrimination. On
appeal, the agency made numerous arguments regarding AJ errors.
The agency argued that the AJ erred in finding that the complainant
established a prima facie case of race discrimination since the selectee,
like complainant, was African American. Even assuming arguendo, that
complainant established a prima facie case of race discrimination, the
agency argued that the AJ ignored the identification of the agency's
legitimate nondiscriminatory reason for its actions. The agency also
argued that the AJ erred in finding that complainant had engaged in
protected EEO activity because the activity in which complainant engaged,
counseling an agency employee regarding his EEO rights, was part of
complainant's official work duties. Even assuming the AJ's finding is
correct, the agency argued that compensatory damages in the amount of
$50,000 is contrary to norm.
Complainant filed a brief contending that the AJ's decision correctly
summarized the facts and reached the appropriate legal conclusions.
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.
With regard to the nonselection, the evidence revealed that there were
eight vacancies for the mediator positions in various states. All of
the vacancies, with the exception of one, were located in offices where
the person who had been performing the mediation duties was an African
American<2>. Complainant, an African American male, was performing
the mediator duties in College Park, Georgia, and he applied for the
mediator position in this designated region. Each designated region
had a different selecting official. While there were eight different
selecting officials, the approving official was the common thread that
bounded all of the selections.<3>
Turning to the agency's contentions on appeal, we find no basis to
disturb the AJ's finding. There was evidence presented that complainant's
race coupled with his sex was a factor in complainant's nonselection.
Accordingly, based on a �race plus� theory, complainant established
a prima facie case of discrimination, since the selectee, an African
American female, was outside of complainant's protected group of African
American male. <4>
With respect to the agency's argument that the agency ignored the agency's
legitimate nondiscriminatory reason, we disagree. The record reveals
that the agency articulated several legitimate nondiscriminatory reasons
for its actions. The AJ concluded, based upon substantial evidence,
that the agency's articulated reasons were not the true reasons for
its action. The agency articulated that the selecting official for
each designated region made the selection without any prompting from
the approving official. The approving official's role was limited to
concurring in the selections made. With regard to the specific selection
at issue here, that agency articulated that the selectee was chosen
because she was the �best qualified.�
All of the agency's articulated reasons were flatly denied by the
selecting official for the particular selection at issue here. This
selecting official testified: that the approving official harbored a
discriminatory animus toward African Americans in general, and African
American males in particular; and that the approving official unduly
influenced his selection decision and set parameters for the selection
including a preference for �fresh blood,� a �new face� and someone with
�higher credentials.� The selecting official testified that he would have
selected the complainant because of his qualifications and demonstrated
success in performing the mediator duties, but based on the parameters set
by the approving official, he presented the complainant and an external
candidate to the approving official for approval. The selecting official
testified that the external candidate was �credentialed� but that he
would have chosen complainant. He further testified that the approving
official ignored his expressed preference to select complainant, and
directed him to hire the external candidate. The selecting official
testified that the approving official had problems working with him,
complainant, and other African Americans and at the time she directed
him to hire the external candidate, the approving official was not aware
that the external candidate was African American.
While the approving official denied the selecting official's allegations
and asserted that she did not suggest or direct whom should be hired for
the positions, the AJ did not credit the approving official's testimony.
The AJ found the selecting official's testimony to be more credible and
supported by the record evidence. In so finding, the AJ found it suspect
that not one of the seven African Americans who had been performing the
mediation duties, and who applied for the permanent mediator position,
was selected. However, the only white female who had been performing the
mediator duties, and who applied for the permanent mediator position,
was selected. Moreover, the racial composition of the persons performing
the mediator duties shifted dramatically. Prior to these selections, 7
out of 8 persons who performed the mediator duties in these designated
regions were African American. Following the selections, only 1 out of
8, was African American.
Based on the credibility determinations made by the AJ, the contradictory
testimony of management officials regarding the proffered explanations,
and the actual results of the selections, we find that there is
substantial evidence in the record to support the AJ's finding.
With regard to complainant's reprisal claim, we concur with the AJ's
finding that the counseling complainant provided to a co-worker was
protected activity notwithstanding the fact that the counseling was
provided as part of complainant's official work duties. The record
establishes that complainant counseled an agency employee regarding his
EEO rights and shortly thereafter the employee filed an EEO complaint
naming the complainant's acting immediate supervisor as one of the
responsible management officials. The issue involved the removal of a
merit promotion packet from complainant's office by complainant's acting
immediate supervisor. Hence, it appears complainant's involvement in
the dispute went beyond his official duties. There was evidence presented
that complainant's acting immediate supervisor was aware that complainant
counseled the employee and believed that complainant had encouraged the
employee to file an EEO complaint naming her as one of the responsible
management officials. There was also evidence presented that the acting
supervisor called complainant an �instigator� based on his purported role
in encouraging the agency employee to file an EEO complaint and that the
supervisor asked an employee to find out if complainant was indeed behind
the EEO complaint filed by the agency employee. During the same time
period, the acting supervisor evaluated employees including complainant,
to determine whether to recommend them for a Superior Contribution
Increase (SCI) award and the supervisor did not recommend complainant
for a SCI award.
We find this evidence sufficient to establish that complainant had engaged
in EEO protected activity. The anti-reprisal provision of Title VII
protects those who participate in the EEO process as well as those who
aid others in exercising their EEO rights. Because the enforcement of
Title VII depends on the willingness of employees to oppose unlawful
employment practices or policies, courts have interpreted section 704(a)
of Title VII as intending to provide �exceptionally broad protection�
to those who oppose such practices. Based on the exceptionally broad
protection of Title VII, we find the evidence of record sufficient to
support the AJ's finding that the �counseling� complainant provided to
the agency employee was protected EEO activity.
With regard to the agency's claim that the award of $50,000 in
compensatory damages is excessive, we find that the award is supported by
substantial evidence of record and meets the goals of not being motivated
by passion or prejudice, not being �monstrously excessive� standing alone,
and being consistent with amounts awarded in similar cases in terms of
harm sustained. See, e.g., Bernard v. Department of Veterans Affairs,
EEOC Appeal No. 01966861 (July 17, 1998) ($80,000 in non-pecuniary
damages where complainant presented evidence that he experienced symptoms
of depression, as well as headaches, ringing in his ears, vomiting,
elevated blood pressure, grinding of his teeth, and insomnia due to the
agency's discriminatory actions); Wallis v. U.S. Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995) ($50,000 award for non-pecuniary
damages where the agency retaliated against complainant, which resulted
in exacerbation of a preexisting mental condition, loss of reputation,
injury to credit standing, emotional distress, loss of enjoyment of life,
and loss of health.)
Here, complainant testified that the agency's action exacerbated his
pre-existing condition of depression and anxiety disorder and resulted in
the increase dosage of his medications from his physician. Complainant
further testified that the discrimination has resulted in physical
and emotional difficulties including: a strained relationship with
family; sleeplessness; humiliation; stress; irritability; injury
to reputation; and weight loss. The record also contains progress
reports from complainant's medical providers dated September 2002 to
October 2003 which support complainant's claim that his medication
dosage was increased and that he has experienced: anxiety, depression,
sleeplessness, irritability and stress which were reportedly job related.
The notes include statements such as, �[complainant] is feeling anxious
and disappointed at his employer,� �[complainant] is apprehensive with
his job setting,� and �[complainant] explains that his job has been
the source of stress.� We find that there is substantial evidence
in the record to support the AJ's award of $50,000 in compensatory
damages. Accordingly, we order the agency to pay complainant $50,000 in
non-pecuniary compensatory damages.
Therefore, 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 remands the matter to the agency
to take corrective action in accordance with this decision.
ORDER (D0403)
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to promote complainant to an EEO Specialist
Mediator position, or to a substantially equivalent position, retroactive
to September 29, 2001.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall give complainant a Superior Contribution Increase - 2
Award. The agency shall determine the appropriate amount of complainant's
SCI-2 award with interest.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall award complainant compensatory damages in the amount
of $50,000.
The agency shall provide training in the obligations and duties imposed
by Title VII to the management officials responsible for the actions
at issue. The Commission does not consider training to constitute a
disciplinary action.
The agency shall consider taking disciplinary action against the
management officials responsible for the actions at issue. The agency
shall report its decision. 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 shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The 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 benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (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."
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 Federal Aviation
Administration-Southern Region, Departmental Office of Civil Rights,
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
___09-28-04_______________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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
violation of the Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. (Title VII), has occurred at the Federal Aviation
Administration-Southern Region, Departmental Office of Civil Rights.
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 Federal Aviation Administration-Southern Region,
Departmental Office of Civil Rights, confirms its commitment to comply
with these statutory provisions.
The Federal Aviation Administration-Southern Region, Departmental Office
of Civil Rights, supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The Federal Aviation Administration-Southern Region, Departmental
Office of Civil Rights, was found to have discriminated against an
employee when it did not select the employee for the position of EEO
Specialist Mediator and when it did not award the employee a Superior
Contribution Increase. The Federal Aviation Administration-Southern
Region, Departmental Office of Civil Rights, was ordered to: retroactively
promote the affected employee to the EEO Specialist Mediator position,
or to a substantially equivalent position, with back pay, and interest;
award the employee a Superior Contribution Increase; and provide
other benefits to which the employee may be entitled under federal
law in connection with his complaint, including proven attorney's
fees and costs and proven compensatory damages. The Federal Aviation
Administration-Southern Region, Departmental Office of Civil Rights,
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws.
The Federal Aviation Administration-Southern Region, Departmental Office
of Civil Rights, 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: ________________
1 Note that the AJ's finding with regard to this issue will not be
addressed herein because complainant did not appeal this issue.
2 Complainant was the only male and only African American male performing
the mediator duties in the eight designated offices.
3 Complainant identified the approving official as the involved management
official.
4 We agree with the agency that the AJ incorrectly relied on a disparate
impact rather than a disparate treatment case to conclude that complainant
established a prima facie case of race discrimination with regard to
the nonselection. However, we find that the AJ's ultimate conclusion
was correct for the reasons set forth herein.