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.