07A40010
07-14-2004
Peggy Whitney, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Peggy Whitney v. Department of Defense
07A40010
July 14, 2004
.
Peggy Whitney,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 07A40010
Agency No. DFAS-IN-IN-00-030
Hearing No. 240-A1-05097X
DECISION
Following its September 26, 2003 final order rejecting an EEOC
Administrative Judge's (AJ) findings in favor of complainant, the agency
filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. �
1614.405. On appeal, the agency requests that the Commission affirm its
rejection of the AJ decision. The complainant was a Accounting Technician
employed at the agency's Defense Finance and Accounting Service (DFAS),
Indianapolis facility. The complainant filed a formal EEO complaint
with the agency, alleging that the agency had discriminated against
her on the bases of disability (severe speech impediment) and reprisal
for prior EEO activity when the complainant was not selected for any of
four accounting positions. For the following reasons, the Commission
REVERSES the agency's final action and AFFIRMS the AJ's decision.
Following a hearing, the AJ found that the complainant is an individual
with a disability, who established that she is substantially limited
in the major life activity of speaking and also that her severe and
obvious stuttering affects her everyday life. The AJ found that the
agency articulated a legitimate reason for the selection of others
(based on the relative qualifications), but the AJ concluded that
complainant established that more likely than not, the reasons provided
by the agency were a pretext for discriminatory and retaliatory animus.
In reaching this conclusion, the AJ found that the testimony offered by
the agency's witness was not credible when viewed in the totality of
the circumstances and that there was persuasive evidence presented by
the complainant to establish discriminatory intent.
With regard to the retaliation claim, the AJ found that the agency
officials responsible for the selections were aware of the complainant's
EEO activity, that she was subsequently not selected for any of the
positions even though she was referred for consideration, and that one of
the officials expressed some concern regarding the EEO process and the
filing of non meritorious claims. The AJ also found it significant that
there was documentation of the complainant's EEO proceedings placed in
her personnel file, available for review by the agency officials. The AJ
determined that the agency lacked credibility and found the agency liable.
In his order of relief, the AJ found that the complainant was entitled
to back pay, reasonable attorney's fees and non-pecuniary damages in
the amount of $5,000.00.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred by determining that the complainant was
more credible than the agency' witnesses.
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.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
reverses the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant for the period from April 1,
2000 to July 30, 2000, and tender that amount to the Complainant no later
than sixty (60) calendar days after the date of the final decision.
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."
Within sixty (60) calendar days of the date of the final decision,
the agency shall tender to the complainant non-pecuniary compensatory
damages in the amount of $5,000.00.
Within sixty (60) calendar days of the date of the final decision,
the agency shall implement appropriate preventative measures to ensure
that such unlawful activity will not recur by providing training to
the named RMO to ensure that he comes aware and / or continues to be
aware of his obligations, rights, and responsibilities under the EEO
statutes to refrain from making employment decisions based upon the
disabilities of employees or in reprisal for employees having engaged
in protected activity.
Within thirty (30) calendar days of the date of the final decision,
the agency shall consider taking disciplinary action against the
employee identified as being responsible for the discriminatory actions
perpetrated against complainant. The agency shall report its decision.
If the agency decides to take disciplinary action, it shall identify the
action taken. If the agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline.
Within thirty (30) calendar days of the date of the final decision,
the agency shall tender to the complainant attorney fees in the amount
of $18,447.50.<1>
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 back pay 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 US Department of Defense
Indianapolis, Indiana 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)), 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 (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
July 14, 2004
__________________
Date
1 The AJ noted that the agency did not file a response to the
complainant's verified petition for attorney's fees and costs.