01A31014
05-29-2003
Kathy A. Kennedy, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Kathy A. Kennedy v. Department of Veterans Affairs
01A31014
May 29, 2003
.
Kathy A. Kennedy,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A31014
Agency No. Nos. 99-5777 and 200I-2331
Hearing No. 140-A1-8214X
DECISION
Kathy A. Kennedy (hereinafter the complainant) timely initiated
an appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the agency's final decision (FAD) awarding her
$3,000 in compensatory damages. The appeal is accepted pursuant to 29
C.F.R. ��1614.405. For the reasons that follow, we affirm the award of
$3,000 in compensatory damages on the reprisal claim. With regard to the
agency's determination of make-whole relief on the EPA claim, we modify
the FAD, however, because the complainant was entitled to gross back
pay and interest in the amount of $12,926.67 for the EPA claim and to an
award of liquidated damages equaling the same amount of her EPA claim.
Accordingly, we award the complainant a total of $28,853.34 in relief.
The record reveals that, during the relevant time, the complainant
was employed as a Computer Specialist at the agency's VAMC facility in
Charleston, South Carolina. Following a hearing, an Administrative Judge
(AJ) ruled in the complainant's favor on her claim of reprisal and wage
discrimination under Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq. and under the Equal Pay Act
of 1963, as amended, 29 U.S.C. � 206(d) et seq. The AJ concluded that
complainant was entitled to $12,926.67 as adjusted gross back pay and
interest for the sex-based wage claim. The order noted separate amounts
for the EPA claim and the reprisal claim. The decision also stated that
complainant should be provided an award of liquidated damages for the
EPA claim. The order of relief also provided for attorneys' fees and
costs on the claims under Title VII claims.<1> The agency adopted the
AJ's determination, except that it did not mention the back-pay award
and limited the attorney's fees to the reprisal claim. The FAD also
provided for equitable relief by committing to cease from engaging in
sex discrimination and reprisal.
When discrimination or reprisal is found, the agency must provide the
complainant with a remedy that constitutes full, make-whole relief to
restore him as nearly as possible to the position he would have occupied,
absent the unlawful action. See, e.g., Franks v. Bowman Transportation
Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395
(July 21, 1994). The Equal Pay Act, like Title VII, authorizes "make
whole" relief including the payment of wages lost and an additional
equal amount as liquidated damages. An employer who violates the EPA
must remedy that violation not only by awarding the affected employee
the difference between the salary she received and the salary she
should have received, retroactive to the date the violation began, but
also by awarding the employee an additional equal amount as liquidated
damages. See 29 U.S.C. 216(b); see also Miller v. Department of the Navy,
EEOC Appeal No. 01943457 (December 8, 1995). Moreover, in a situation such
as this, where the jurisdictional prerequisites of both the EPA and Title
VII are satisfied, any violation of the EPA is a violation of Title VII.
See 29 C.F.R. � 1620.27; see also Jones v. Department of Veterans Affairs,
EEOC Appeal No. 01994717 (November 2, 2000).
In its FAD, the agency adopted the AJ's order and concluded that
complainant was only entitled to compensatory damages on the Title
VII reprisal claim in the amount of $3,000. Compensatory damages may
be awarded for the past pecuniary losses, future pecuniary losses,
and non-pecuniary losses which are directly or proximately caused by
the agency's discriminatory conduct. See Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. 915.002 (July 14, 1992), at 8. In this case, the AJ
determined that complainant was entitled to compensatory damages in the
amount of $3,000 for the reprisal claim, as well as liquidated damages in
an amount equal to the Equal Pay back pay award. The AJ's determination
is supported by the record. The record shows that complainant suffered
emotional distress because of the agency's actions. We find that the
timing of the distress coincided with the period at issue. In reaching
this conclusion, we note that the record provides documentation that
complainant received medical treatment and did not require medical
treatment or psychiatrist visits before the unlawful discrimination.
Further, in determining compensatory damages, the Commission strives to
make damage awards for emotional harm consistent with awards in similar
cases. A number of Commission decisions have awarded non-pecuniary
compensatory damages in cases which we compare to the complainant's case.
See e.g., Pailin v. Department of Defense, EEOC No. 01954350 (January 26,
1998) ($2,500 award for tension and emotional distress that lasted two
years after the complainant was denied training); Garcia v. Department
of the Treasury, EEOC Appeal No. 07A10040 (January 13, 2003) ($3,000
award of non-pecuniary damages in reprisal action where a complainant
had signs of depression, stress and anxiety) and Lawrence v. USPS, EEOC
Appeal No. 1952288 (April 18, 1996) ($3,000 for sexual harassment claim
where emotional distress is shown).
The FAD provided for the liquidated damages on the EPA claim, but did
not mention the back pay award. In order to ensure that the agency
has implemented all of the corrective relief due and awarded in this
matter, the agency is directed to take the corrective action set forth
in the Order that follows. The record reflects that the period at issue
extends from July 1996 to September 2001. The complainant was promoted
effective September 21, 2001 to the GS-11 position, but the record does
not reflect that complainant actually received the salary adjustments and
back pay for the entire period to which she was entitled as a remedy
for her Equal Pay Act claim, which also constitutes a sex-based wage
discrimination claim under Title VII.
Therefore, based upon our review of the record, the decision of the
Commission is to MODIFY the agency's final decision. We direct the agency
to take remedial actions in accordance with this decision and order below.
ORDER (C0900)
The agency is ordered to take the following remedial action.
If it has not done so already, within thirty (30) days of the date of
this Decision, the agency shall tender to the complainant the total
amount of $12,926.67 as liquidated damages for its violation of the EPA.
If it has not done so already, within thirty (30) calendar days of
the date this decision becomes final, the agency shall tender to the
complainant non-pecuniary compensatory damages in the amount of $3,000
on her reprisal claim.
As a prevailing party on the reprisal and sex-based wage discrimination
claims under Title VII, within thirty (30) calendar days of the date
this decision becomes final, if it has not done so previously, the agency
shall pay the complainant reasonable attorneys' fees and costs.
If it has not done so already, the agency shall provide notification
to all employees and applicants of the Agency in the affected facility
of their right to be free of unlawful discrimination and provide an
assurance that this particular type of discrimination found will not
recur, consistent with the notice herein.
If it has not done so already, within ninety (90) days of the date
of this decision to the agency shall provide EEO training to the
responsible management officials at the Charleston, South Carolina VA
Medical Center. Further, the agency shall take corrective measures
to prevent the recurrence of the discriminatory actions in this case,
including mandatory training for the responsible management officials
regarding their EEO obligations under Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the
Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
If it has not done so already, within thirty (30) calendar days of
the date this decision becomes final, the agency shall pay complainant
$12,926.67, which represents the adjusted gross back pay and interest
to which she was found to be entitled under the Equal Pay Act and
as a sex-based wage violation under Title VII. The complainant may
petition for enforcement or clarification of any amount in dispute. The
petition for enforcement or clarification 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 verifying
that the corrective action has been implemented.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its VAMC at Charleston, South Carolina
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.
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
May 29, 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 violation of the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d)
et seq. and Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. �2000e et seq. has occurred at this facility or with
regard to an employee who has been employed 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 laws require equal pay for equal work and ban reprisal
and discrimination on account of sex in the payment of wages. require
equal pay for equal
The United States Department of Veterans Affairs at its VAMC Facility in
Charleston, South Carolina supports and will comply with such Federal laws
and will not take action against individuals because they have exercised
their rights under law or offered evidence in support of such individuals.
The VAMC Facility in Charleston, South Carolina was found to have violated
the Equal Pay Act and Title VII when it discriminated against an employee
on the basis of her sex, when it subjected the employee to sex-based pay
discrimination and reprisal. The facility has been ordered to remedy the
employee. As a remedy for the discrimination and reprisal, the agency was
ordered, among other things, to (1) pay back pay and liquidated damages;
(2) award complainant compensatory damages and reasonable attorney's
fees, if applicable; and (3) post this notice. In addition, the VAMC
Facility in Charleston, South Carolina was ordered to submit a compliance
report to the Commission verifying the completion of all ordered
corrective action. The VAMC 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 VAMC Facility in Charleston, South Carolina 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
1 The record shows that the agency violated Title VII with regard to the
reprisal and both Title VII and the Equal Pay Act with regard to the
sex-based wage / equal pay claims. Further the AJ concluded that the
Equal Pay Act violation was willful since the agency took ineffectual
actions to address the concerns that complainant had raised for several
years.