01a40973
12-15-2005
Margaret K.C. Godwin, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Margaret K.C. Godwin v. Department of the Army
01A40973
December 15, 2005
.
Margaret K.C. Godwin,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A40973
Agency No. BKEK0003A0100
Hearing No. 310-A1-5079X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) complaint of unlawful
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order as modified herein.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge's (AJ)
decision regarding back pay and reinstatement is correct.
Background
The record reveals that the AJ issued an order finding that the agency
discriminated against complainant on the basis of her gender when it did
not select her for the position of Budget Analyst GS-7/9, on January
18, 2000. Pursuant to the AJ's order the parties submitted briefs on
the issue of damages including whether compensatory damages, injunctive
relief and attorney's fees were appropriate. After consideration of
the parties' submissions, the AJ found that back pay should be awarded
from the date complainant would have first received her new salary on
January 30, 2000, if discrimination did not occur, to the effective date
her resignation on October 7, 2000.
The AJ found that the remedy of reinstatement was not appropriate because
complainant did not establish her claim of constructive discharge
or that she was subjected to a hostile work environment. The AJ also
awarded attorney's fees and an amount for compensatory damages.
On appeal complainant challenges the AJ's award of back pay contesting her
finding that she would have been hired at the GS-7 level. She contends
that because she had relevant experience as a paralegal at the GS-7 level,
she could have been hired as a GS-9 Budget Analyst. Complainant also
contends that the AJ erred by not ordering her reinstatement to her
employment because the agency never presented any reasons for opposing
such a remedy. Complainant argues that her reinstatement was authorized
by EEOC regulations found at 29 C.F.R. � 1614.501(b) and should have
been made effective from January 2000 to the date of her appeal.
She contends the AJ's finding otherwise was an abuse of discretion.
Complainant did not appeal the amount of compensatory damages or the
attorney's fees awarded.
The agency opposed the appeal on the grounds that placement of complainant
in the position at the GS-9 level would go beyond the requirement for
make whole relief. The agency contends that the record supported that
the agency had the discretion to determine what grade the position would
be and that because it was a developmental position, it was reasonable
to hire at the GS-7 level. The agency contends that the AJ was correct
to deny reinstatement because complainant did not prove constructive
discharge.
ANALYSIS AND FINDINGS
We review the AJ's decision regarding relief in the same manner as her
findings on the merits of the claim. That is, any post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence in
the record. 29 C.F.R. � 1614.405(a) 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). An AJ's
conclusion of law such whether reinstatement is appropriate, is subject
to a de novo standard of review, whether or not a hearing was held.
On consideration of the complainant's appeal and the agency's response,
the Commission concludes that the AJ's decision not to order the agency
to reinstate complainant was correct. The Commission has held that an
agency is not required to reinstate an employee where the employee has
retired or resigned and there is no finding of constructive discharge.
Garcia v. Department of the Navy, Request No. 05960023 July 9, 1997(where
constructive discharge not alleged, reinstatement not a remedy).
In this case, the AJ found that complainant did not prove she was
subjected to a hostile work environment and that she did not prove
she was constructively discharged. Decision at 27-29. Therefore,
the AJ determined that complainant's resignation from the agency on
October 1, 2000 was voluntary and not the result of discrimination.
Complainant did not contest the AJ's finding in this regard but only
argues that reinstatement is still an appropriate remedy. However, as
noted above, the grounds for reinstatement do not exist in the absence of
a finding that her departure from the agency was due to discrimination.
For this reason, we affirm the AJ's finding denying reinstatement.
We also conclude that the AJ was correct to order the agency to calculate
and pay back pay for the time she should have occupied the position but
for discrimination. However, we conclude that in order to fully remedy
the discriminatory conduct, the appropriate time period for a back
pay award should be from the date complainant was not selected for the
position, not just the date of first salary payment. In this case, the
date she was not selected for the position occurred on January 18, 2000
which is the date the discriminatory selection occurred. See Albemarle
Paper Co. v. Moody, 422 U.S. 405 (1975) (make whole relief is that
which will put complainant in the position she would have been absent
discrimination). Title VII relief is equitable in nature and therefore,
the agency's records should reflect correction of the discriminatory
conduct from the date that it occurred. Id.
We note the record reflects that the AJ found that the appropriate
grade level to which complainant should have been promoted was a GS-7.
Complainant argues on appeal that based on her prior GS-7 experience as
a paralegal, and in the job as a budget analyst, she should have been
promoted to the GS-9 level. However, according to the agency's Personnel
Specialist, since complainant was a GS-5 at the time of the selection,
normal personnel practice dictated that she would be promoted to the
GS-7 level. The Personnel Specialist also stated that complainant did
not present sufficient information to warrant a promotion to a GS-9
such as the dates of her experience at the GS-7. Complainant also did
not present this information on appeal, therefore, she has not given
sufficient evidence that the AJ's determination should be overturned.
Therefore, after a careful review of the record, the Commission finds
that the AJ's findings of fact are supported by substantial evidence in
the record and that the AJ's decision regarding remedies is correct except
as modified herein. For these reasons, we AFFIRM the agency's final order
and direct the agency to take action consistent with the Order below.
ORDER
To the extent the agency has not already done so, it is ordered to take
the following remedial action within 30 days of the date this order
becomes final:
Complainant is awarded retroactive promotion to the position of Budget
Analyst GS-7 as of January 18, 2000 at a step she would have been
entitled to had the discrimination not occurred, plus any grade and
step increases she would have been due for the period ending on the
date of her resignation on October 7, 2000;
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 30 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."
2. The agency will pay complainant $5,000.00 in non-pecuniary
compensatory damages;
3. The agency will pay complainant $4,014.62 in attorney's fees and
$113.40 in costs;
4. The agency will require the selecting official to take 8 hours of
training in the provisions of Title VII particularly as it applies to
gender discrimination;
The agency will consider taking disciplinary action against the selecting
official and report to the Commission whether or not it decided to do
so with reasons for its actions.<0>
The agency will post notice as indicated below.
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 backpay 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 facility in Fort Sill, Oklahoma
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.
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 (S0900)
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 (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
December 15, 2005
__________________
Date
0 1Commission regulations state that each
agency shall take appropriate disciplinary action against employees who
engage in discriminatory practices. 29 C.F.R. � 1614.102(a)(6). In
promulgating this policy, the Commission clearly stated that it
could not discipline or order the discipline of employees directly.
52 Fed. Reg. 41920, 41921 (October 30, 1987). Rather, the Commission
stated that the requirement of corrective, curative, or preventative
action permits the Commission to recommend that disciplinary action be
considered by the agency. Id. The Commission reaffirmed this policy in
Cassida v. Department of the Army, EEOC Request No. 05900794 (September
14, 1990), in which it stated that it could not order an agency to take
disciplinary action against a particular individual, but could order
the agency to consider taking disciplinary action under appropriate
circumstances. The implementation of 29 C.F.R. Part 1614 in 1992,
and the implementation of the amendments to Part 1614 in 1999 have not
altered the Commission's policy in this regard.