Paula L. Hairston, Complainant,v.Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 22, 2005
01a51669 (E.E.O.C. Mar. 22, 2005)

01a51669

03-22-2005

Paula L. Hairston, Complainant, v. Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.


Paula L. Hairston v. Department of the Air Force

01A51669

March 22, 2005

.

Paula L. Hairston,

Complainant,

v.

Peter B. Teets,

Acting Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A51669

Agency No. WE1M02063F04

Hearing No. 220-A3-5061X

DECISION

Complainant filed the captioned appeal concerning the agency's compliance

with its November 1, 2004 final action. The Commission accepts the

appeal. 29 C.F.R. � 1614.504 and 29 C.F.R. � 1614.405.<1>

The record reveals that complainant, a Office Automation Clerk at

the agency's Wright Patterson Air Force Base, Ohio, filed a formal EEO

complaint on June 19, 2003, claiming discrimination on the bases of sex

(female) and age (over 40) when:

(1) On March 21, 2002, a Security Police report was filed against

complainant for alleged disorderly conduct and verbal violence toward

her supervisor and co-workers;

On March 27, 2002, complainant was placed on 68 hours of forced sick

leave pending an involuntary mental health evaluation and treatment at

Occupational Medicine; and

On May 1, 2002, complainant received her annual performance appraisal,

which allegedly did not accurately reflect her level of performance

for the April 1, 2001 to March 31, 2002 rating period.

At the conclusion of the investigation, the agency provided complainant

with a copy of the investigative report and requested a hearing before

an EEOC Administrative Judge (AJ). Following a hearing, the AJ issued

a decision, on September 20, 2004, finding no discrimination regarding

claims (1) and (2). However, the AJ found that the record supported

a finding of discrimination as to claim (3). The AJ ordered the

agency to provide complainant with "make whole relief." Specifically,

the AJ determined that 'but for' the discrimination, complainant would

have received an "Excellent" rating on the performance appraisal at

issue, and ordered the agency to reissue the appraisal with an overall

"Excellent" rating, and with an "Above Fully Successful" rating on the

nine work elements.

Regarding compensatory damages, the AJ determined that complainant was

entitled to �$5,000.00" in "non-pecuniary compensatory damages." In

reaching this decision, the AJ found that complainant had a pre-existing

medical condition (adjustment disorder with mixed anxiety and depressed

mood), which was aggravated by the agency's discriminatory conduct,

sufficient to warrant an award of �$5,000.00" in "compensatory damages."

Complainant filed the instant appeal on December 15, 2004. Therein,

complainant states that because of the agency's mistreatment, she resigned

on July 8, 2002. Complainant argues that the AJ's award of make whole

relief should include back pay, restoration of leave, and reinstatement to

her position. Complainant additionally argues that the AJ's decision must

be read as giving her two awards of $5,000.00, for a total of $10,000.00

in compensatory damages. Complainant indicates that as of the date of

her appeal, and despite telephone calls to the agency inquiring about the

status of her award, she has received neither a new performance appraisal

nor any money. Complainant also indicates that her attorney advised

her to request that the Commission clarify the AJ's award of damages.

In response, the agency argues that the AJ's finding of discrimination

was limited to claim (3), and that make whole relief for this type of

harm would not include reinstatement, back pay, or restoration of leave.

In this regard, the agency asserts that complainant did not raise

a claim of constructive discharge in conjunction with her July 8,

2002 resignation. Furthermore, the agency argues that although the

AJ mentioned "$5,000.00" more than once in his general discussion of

compensatory damages, the award must be read as giving complainant

a single award of $5,000.00 in non-pecuniary compensatory damages.

The agency further avers that on January 14, 2004, it was determined

that the agency fully complied with the AJ's award.

After careful review, we find the AJ's finding of discrimination was

limited only to claim (3), and that complainant did not file an appeal

from this determination, as adopted by the agency's final action, such

that this determination is now final. We further find that the record

is devoid of any evidence to suggest that complainant raised a claim of

constructive discharge concerning her July 8, 2002 resignation prior

to the instant appeal. Accordingly, we find that the AJ ordered the

appropriate make whole relief for claim (3), e.g., re-issuance of the

performance appraisal with indicated upgraded ratings, and an award of

compensatory damages. Regarding compensatory damages, we concur with the

agency that the AJ's discussion cannot be construed as making multiple

awards of $5,000.00 to complainant. Instead, it is apparent that the AJ

merely made multiple references to this sum in the course of discussing

his rationale for setting the amount of the award. To the extent that

this may have caused any confusion, we hereby clarify that the AJ awarded

complainant one award of $5,000.00 in non-pecuniary compensatory damages.

Notwithstanding the above determination, however, we find that the

record is devoid of any evidence to show that the agency re-issued

complainant's performance appraisal or issued her a check for $5,000.00.

In its response to the appeal, the agency indicates that it made

a determination on January 14, 2005 that it complied with the AJ's

order of remedies; however, there is no documentation in the record to

this effect. Because the agency has the burden of submitting evidence

to support its decision, we determine that the agency's finding of

compliance must be reversed. See Marshall v. Department of the Navy,

EEOC Request No. 05910685 (September 6, 1991).

Accordingly, for the reasons set forth above, we REVERSE the agency's

finding of compliance with its final action, and we REMAND this case to

the agency for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following action:

1. If it has not already done so, within thirty (30) calendar days

of the date that this decision becomes final, the agency shall expunge

complainant's performance appraisal for the April 1, 2001 to March 31,

2002 rating period, and replace it with an appraisal reflecting an overall

"Excellent" rating, and with "Above Fully Successful" rating on the nine

work elements. The appraisal is to be associated with complainant's

Official Personnel Record, and the agency shall provide a copy of the

appraisal to complainant, mailed to her home address.

If it has not already done so, within thirty (30) calendar days of the

date of this decision, the agency shall issue complainant a check in the

amount of $5,000.00, as an award of non-pecuniary compensatory damages.

A copy of all pertinent documentation demonstrating compliance with the

above actions must be sent to the Compliance Officer as referenced below.

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

March 22, 2005

__________________

Date

1The record reflects that complainant made this appeal directly to this

Commission, without first making a non-compliance claim in writing to

the agency, as set forth in 29 C.F.R. � 1614.504. Nonetheless, we find

that by virtue of this appeal, the agency had adequate notice of the

non-compliance claim, as well as an opportunity to respond. Therefore, we

find that the Commission may now properly consider this matter on appeal.