07A20141_r
08-06-2003
Paul Roppuld, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Paul Roppuld v. Small Business Administration
07A20141
August 6, 2003
.
Paul Roppuld,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 07A20141
Agency No. 01-99-009
Hearing No. 260-A0-9161X
DECISION
Following its August 31, 2001 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405. The
agency rejected the portion of the AJ's order finding that the agency
retaliated against complainant when it removed him from a supervisory
position. For the following reasons, the Commission reverses the
agency's final order in part.
Complainant, employed during the relevant time period as Chief of Business
Development Outreach at the agency's Milwaukee, Wisconsin office, filed
a formal EEO complaint with the agency, alleging that the agency had
discriminated against him in reprisal for prior EEO activity when:
(1) The agency denied him promotion to the GS-14 grade level; and
On March 26, 1999, the agency removed him from his position as Chief
of Business Development Outreach.<1>
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found complainant established a prima
facie case for claim 1, but that the agency articulated legitimate,
nondiscriminatory reasons for not promoting complainant to the GS-14
grade. Regarding claim 2, the AJ found discrimination.
The agency's final order rejected the AJ's finding of discrimination
for claim 2. On appeal, the agency argues that it expressed concerns
about complainant's performance before complainant's EEO activity and
documented these concerns in complainant's mid-year review dated June
2, 1998 and subsequent memoranda. Finally, the agency argues that the
AJ improperly awarded compensatory damages by improperly relying upon
testimony from complainant. The agency noted that complainant failed
to submit any objective medical evidence in support of his claim for
non-pecuniary damages.
The record reveals that on November 9, 1997, complainant was promoted to
Branch Manager, GS-13, with full promotion potential to GS-14. On January
20, 1998, the agency selected complainant for the position of Chief
of Business Development Outreach, GS-13, with full promotion potential
to GS-14. The position had a probationary period of eighteen months.
Another employee, complainant's coworker, who was not selected for the
position filed an EEO complainant alleging racial discrimination when
he learned complainant had been selected for the position. In October
1998, complainant provided affidavit testimony for the co-worker's
EEO claim. For the period October 1, 1997 through September 30, 1998,
complainant's supervisor rated him �exceeds fully successful� in his
supervisory position. In memoranda to complainant dated November 18,
1998 and December 15, 1998, complainant's supervisor stated that he had
concerns about complainant's performance in the areas of management,
program responsibilities, and internal controls. In a letter dated
March 26, 1999, the agency notified complainant of his removal from his
supervisory position to a position as a non-supervisory team leader,
GS-13. The letter stated that complainant was being removed from his
supervisory position because he failed to demonstrate fully successful
supervisory and managerial performance during the probationary period.
Complainant's supervisor testified that he learned of complainant's EEO
activity when complainant told him in December 1998. The supervisor
further testified that he then reported this information to the District
Director and relayed complainant's concern that the District Director
had seen his deposition in the co-worker's EEO matter.<2>
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.
Claim 1
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of
production, in other words, "going forward," may shift, the burden of
persuasion, by a preponderance of the evidence, remains at all times on
complainant. Burdine, 450 U.S. at 256.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when, as here, the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this matter, the AJ found that the agency offered legitimate,
non-discriminatory reasons for its actions when it stated that complainant
was not promoted to a GS-14 grade because his performance was not up to
the GS-14 level. The agency cited complainant's propensity to delete
important electronic mails before reading them and communication problems
with his colleagues as matters that kept complainant from receiving the
promotion. In her decision, the AJ concluded that despite evidence that
the District Director held animus against complainant for cooperating
with a co-worker's EEO case, the evidence supported the conclusion that
complainant's work performance was the reason he was not promoted.
The AJ's finding is supported by substantial evidence in the record.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the AJ's finding
of no discrimination for claim 1.
Claim 2
Initially, we note that the AJ's prima facie analysis did not establish
when the acting agency officials learned of complainant's EEO activity.
Upon review of the matter, we find that there is nonetheless substantial
evidence in the record to support the AJ's finding that the agency
retaliated against complainant when it removed him from his supervisory
position. Complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Complainant engaged in protected EEO activity when he submitted an
affidavit for a co-worker's racial discrimination claim in October
1998 and when he initiated EEO contact regarding his non-promotion on
December 1998. Complainant's supervisor testified that he learned of
complainant's EEO activity in December 1998, and thereafter relayed this
information to the District Director. We note that a nexus may be shown
by evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive may
be inferred. Simens v. Department of Justice, EEOC Request No. 05950113
(March 28, 1996) (citations omitted). Here, we find that the removal
of complainant from his supervisory position in March 1999 followed
complainant's protected EEO activity within such close proximity that a
nexus between the two events is established, and retaliation can therein
be inferred. Consequently, we find that complainant established a prima
facie case of retaliation for claim 2.
Turning to the legitimate, non-discriminatory reasons proferred by the
agency for its actions, we find that the AJ properly found that they
were pretext for retaliation. In so finding, we note that complainant
was rated �exceeds fully successful� and given three cash awards for
his performance as Chief of Business Development Outreach. Also, a
professional audit conducted in July 1998 lauded complainant for the
exceptional performance of his division. We note that complainant's
supervisor testified that he never gave complainant any verbal or
written warning that he was in danger of being removed from his position
because of poor performance. While complainant's supervisor cites
complainant's deficiencies in communication skills and management as
bases for complainant's removal, there is no corroborating testimony
from any other agency employee regarding these alleged deficiencies.
Moreover, although the agency pointed out complainant's weaknesses
before his protected activity, complainant's performance was nonetheless
proficient enough to nonetheless receive an �exceeds fully successful�
rating in October 1998. Therefore, we are persuaded that the agency was
willing to tolerate any deficiencies in complainant's performance, but
not his EEO activity. Consequently, we find that the AJ properly found
that the agency retaliated against complainant when it removed him from
the supervisory position of Chief of Business Development Outreach.<3>
Compensatory Damages
As a remedy for the discrimination, the AJ ordered the agency to reassign
complainant to the position of Chief of Business Development Outreach;
pay complainant $10,000.00 in non-pecuniary compensatory damages; and
pay complainant reasonable attorney's fees and costs.
On appeal, the agency contends that the AJ improperly awarded compensatory
damages although complainant did not provide objective medical evidence
of the harm he suffered, and its relation to the discrimination.
However, we note that objective evidence of compensatory damages can
include statements from a complainant concerning his emotional pain
or suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation, injury
to credit standing, loss of health, and any other nonpecuniary losses
that are incurred as a result of the discriminatory conduct. Moreover,
evidence from a health care provider or other expert is not a mandatory
prerequisite for recovery of compensatory damages for emotional harm.
See Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996). Here, complainant provided testimony that the
retaliation led to his depression, weight loss, mental anguish, and loss
of professional reputation that the AJ found was credible. We note that
the Commission has awarded comparable amounts of compensatory damages in
cases similar to complainant's. See Butler v. Department of Agriculture,
EEOC Appeal No. 01971729 (April 15, 1999)($7,500 in non-pecuniary damages
based on complainant's testimony regarding his emotional distress); Hull
v Department of Veteran Affairs, Appeal No. 01951441 (Sept. 18, 1998)
($12,000 in non-pecuniary damages based on complainant's testimony
of emotional distress due to retaliatory harassment). Consequently,
after a review of the record, the Commission finds that the AJ ordered
appropriate remedies for the retaliation and that the award of $10,000.00
is consistent with non-pecuniary awards in similar cases.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
modifies the agency's final order, and the agency is directed to take
remedial action in accordance with this decision and the Order set
forth below.
ORDER
The agency shall provide complainant with the following remedial relief:
Within 30 days of the date this decision becomes final, the agency shall
place complainant in the position of Chief of Business Development
Outreach. Any reference in complainant's personnel records to the
reassignment from Chief of Business Development Outreach shall be
deleted immediately.
Within 30 days of the date this decision becomes final, the agency shall
pay complainant compensatory damages in the sum of $10,000.00.
POSTING ORDER (G0900)
The agency is ordered to post at its Milwaukee, Wisconsin 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.
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
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
_August 6, 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 Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. has occurred at the agency's Milwaukee,
Wisconsin facility (hereinafter 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.
This facility was found to have discriminated against an employee when
it removed him from a supervisory position. The facility was ordered
to return the employee to the supervisory position and to pay the
employee proven compensatory damages and attorney's fees and costs.
This facility 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 and will
not retaliate against employees who file EEO complaints.
This facility will comply with federal law and 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
1We note that complainant withdrew his age claim prior to the hearing
of this matter.
2The District Director was ostensibly unable to testify at the hearing in
this matter, but in an investigative affidavit, contended that he did not
know the actual contents of complainant's testimony in his co-worker's
case until September 1999. He did not state when he learned that
complainant was involved in his co-worker's case nor when complainant
initiated the instant complaint.
3In so finding, we note that on appeal the agency asserts that the AJ
applied the incorrect agency personnel standard for removing a supervisory
probationary employee. However, because we find that there is substantial
evidence in the record that complainant's alleged performance deficiencies
were merely pretexts masking the agency's retaliatory motive, the AJ's
understanding of the removal standards of a supervisory probationary
employee is not dispositive to our finding of retaliation.