01A34112r
10-19-2004
Sheila L. Duhn, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Sheila Duhn v. Department of Transportation
01A34112
October 19, 2004
.
Sheila L. Duhn,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 01A34112
Agency Nos. DOT-6-96-6058 and DOT-6-96-6078
Hearing Nos. 340-96-3773X and 340-97-3029X
DECISION
Complainant timely initiated an appeal concerning her entitlement to
compensatory damages stemming from the agency's violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. On appeal, complainant also alleges that the agency failed to
comply with other remedial actions ordered by the Commission in Duhn
v. Department of Transportation, EEOC Appeal No. 07A00008 (April 17,
2002). The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
At the conclusion of the investigation of complainant's formal EEO
complaint, complainant received a copy of the investigative report and
requested a hearing before an EEOC Administrative Judge (AJ). Following a
hearing, the AJ issued a decision dated September 27, 1999, finding that
complainant failed to show that she was subjected to sexual harassment
but proved that the agency engaged in retaliatory harassment toward her
after she reported the alleged sexual harassment to agency officials.
The incidents of retaliatory harassment included veiled threats about her
future training, ridicule, and acts of intimidation. The agency appealed
the matter to the Commission, and in a decision dated April 17, 2002,
the Commission affirmed the AJ's findings. See Duhn v. Department of
Transportation, EEOC Appeal No. 07A00008. The Commission ordered the
agency to do the following:
Offer complainant a position comparable to her GS-9 Air Traffic
Controller position, at a facility comparable to its Los Angeles
Center, which is not connected by land-lines to the Los Angeles Center.
The agency is not required to transfer complainant to its Farmington,
Minnesota facility if these conditions are met;
The agency shall restore any sick and annual leave used by complainant as
a consequence of the hostile work environment caused by the retaliatory
harassment;
(3) The agency shall determine the amount of back pay due complainant
and other benefits, based on the time she spent in leave without pay
status, excluding that amount of time that complainant refused to work
anywhere except the Farmington, Minnesota facility;
The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result of
the retaliatory harassment. The Department shall afford complainant 45
calendar days to submit evidence in support of her claim for compensatory
damages;
The agency shall provide no less than 24 hours of training for each
responsible management official, including complainant's trainer, her
second line supervisor, and the Manager and Assistant Manager at the
Los Angeles center, regarding the obligations of management officials
concerning employee reports of retaliatory harassment, especially threats
made to employees for the purpose of dissuading them from pursuing the
EEO process.
In a document dated May 8, 2002 and entitled �Final Agency Decision,�
the agency restated the relief ordered by the Commission, notified
complainant that it was agreeing to provide the relief, and informed
her that she had 45 calendar days to submit evidence in support of her
compensatory damages claim.
Subsequently, in a final decision dated May 8, 2003, the agency stated
that although complainant's attorney submitted a claim for attorney's
fees in a letter dated May 23, 2002, complainant failed to request or
mention compensatory damages. �Accordingly, it is the final decision of
the Department of Transportation that you have not submitted a claim for,
and thus are not entitled to, compensatory damages,� the decision stated.
On appeal, complainant states that the agency has failed to comply
with three of the seven remedial actions ordered by the Commission in
our April 17, 2002 decision. Specifically, complainant alleges that
the agency failed to restore her sick and annual leave, grant her back
pay and other benefits due for the period from approximately April 1,
1996 to November 30, 2002, and pay compensatory damages for $1,209.74 in
medical expenses and $725.18 in travel expenses. Complainant maintains
that the agency is liable for back pay and benefits for the full period
she was placed in leave without pay status because the agency did not
give her an offer of work until 2002, when she returned to active duty
at the Farmington, Minnesota facility. Complainant also denies refusing
to work anywhere but Farmington.
In response, the agency maintains that on June 19, 2002, it determined
that complainant was due 16 hours of sick leave and 58.5 hours of
annual leave and that complainant was not due any back pay or benefits
because, as early as March 30, 1996, she refused to work anywhere except
Farmington, Minnesota. The agency noted that the Area Manager testified
that before March 1996, he asked complainant if she would consider
relocating to a non-Farmington facility, but complainant insisted that
she only work at the Farmington facility. The agency maintains that
in a discussion with a manager in March 1996, complainant insisted that
she would only consider working in Farmington. Regarding complainant's
request for compensatory damages, the agency maintains that it never
received a request for compensatory damages from complainant.
As an initial matter, we note that the Commission's decision on appeal
directed the agency to take remedial action and to issue a final
decision solely on the issue of compensatory damages after completing a
supplemental investigation. The agency's issuance of a �Final Agency
Decision� on the remedial matters in response to the Commission's
decision on appeal is not contemplated by our regulations, and to
the extent that the agency is arguing that complainant's contentions
concerning leave and back pay are �untimely,� we disagree. The agency's
May 8, 2002 �Final Agency Decision� had no legal significance, and
complainant's allegations of non-compliance are not time barred under
these circumstances. In the interest of judicial economy, rather than
docketing a petition for enforcement, see 29 C.F.R. � 1614.503(a), we
will consider them in conjunction with complainant's timely appeal of
the agency's May 8, 2003 final decision on compensatory damages.
Leave
Complainant contends that the agency failed to restore sick and annual
leave lost as a consequence of the retaliatory harassment. The record
contains a copy of the agency's tabulation of sick and annual leave from
September 5, 1995 through March 20, 1996. The record also contains a
copy of complainant's leave report dated July 3, 2002, reflecting that
the agency restored 16 hours of sick leave and 58.5 hours of annual leave
to complainant's leave account, consistent with the agency's tabulation.
Complainant has provided no evidence that would refute the authenticity of
the agency's documentation or claim that it has credited the proper amount
of annual and sick leave to complainant. Consequently, we find that the
agency has fully complied with our order to restore leave to complainant.
Back Pay and Benefits
Complainant contends that the agency has not provided her with back
pay and other benefits due based on the time she spent in leave without
pay status. The agency argues that complainant is not entitled to back
pay and benefits because she admitted in testimony that she had been
offered a position in Oakland, California but refused it.
We note that in her decision, the AJ found that the agency offered to
move complainant from the Los Angeles Center to the Oakland Center, but
complainant rejected this offer. �Complainant rejected the offers to
go to lessor towers because she, reasonably, did not want to give up her
opportunity to reach the GS-14 full performance level, and the offer to
transfer to the Oakland tower, in part, because land-lines connect Los
Angeles Center with Oakland, and she feared that Controllers would talk
to acquaintances in Oakland and �warn' them about her,� the AJ stated.
The AJ concluded that since the agency failed to do anything to prevent
her co-workers from spreading rumors about her and threatening her,
complainant's fear of working at the Oakland facility was very realistic,
and the agency's offers of reassignment did not legally fulfill its
obligation to take prompt and appropriate remedial action to ensure that
the workplace was free of retaliatory conduct.
Upon review of the matter, we find that complainant is entitled to back
pay and benefits for the period she was in leave without pay status.
The agency maintains that complainant should be precluded from receiving
back pay and benefits because in a conversation with the Area Manager,
she refused to work anywhere except the Farmington, Minnesota facility.
�I asked her if any other facility or position would alleviate her fear,
her apprehension, including any other facilities within the region,
and she stated �no,' that it wouldn't,� the Area Manager testified.
We find that the manager's question to complainant about working in other
offices was a theoretical inquiry and not an official, concrete offer to
complainant as contemplated by our order. Further, as noted by the AJ,
we find that reassigning complainant to the Oakland Center would have
been an ineffectual remedy because the Oakland Center is connected to the
Los Angeles Center by land-lines, allowing employees from the Los Angeles
Center to relay harassing rumors about complainant to the Oakland Center.
There is simply no evidence that the agency provided complainant with a
concrete, written offer to work in a comparable position at a facility
not connected by land-lines until 2002. Consequently, we find that the
agency owes complainant appropriate back pay and other benefits due.
We further note that the record is unclear about the precise period
of time complainant remained in leave without pay status. The agency
argues that complainant's leave without pay status continued from April 1,
1996 until approximately June 6, 2002, when she was offered a position in
Farmington, Minnesota, but complainant argues that she remained in leave
without pay status until November 30, 2002. We order the agency undertake
a supplemental investigation to determine the precise dates complainant
was in leave without pay status due to the retaliatory harassment.
We note however that any unreasonable delay by complainant in accepting
or declining to accept the agency's offer of a position in 2002 should
be considered by the agency in determining the appropriate date.
Compensatory Damages
Complainant maintains that her attorney submitted a request for
compensatory damages in June 2002, but received no response from the
agency. The agency maintains that complainant did not submit the request
for compensatory damages to the agency. Upon review, we find that the
agency failed to conduct a supplemental investigation on the issue of
compensatory damages as ordered in our previous decision. We find that
the mere reiteration of our order to submit evidence is not a supplemental
investigation. Significantly, the agency did not provide complainant
with any guidance on the legal standards for compensatory damages or
the types of evidence that she could submit to prove such damages.
Consequently, we find that complainant was not afforded sufficient
opportunity to prove her entitlement to compensatory damages.
Based upon a review of the record, and for the reasons set forth in the
instant decision, the Commission finds that the agency has failed to
fully comply with our prior Order set forth in Duhn v. Department of
Transportation, EEOC Appeal No. 07A00008 (April 17, 2002). We VACATE
the agency's final decision on compensatory damages and REMAND this
matter to the agency to take action consistent with the Order below.
ORDER
The agency shall undertake the following actions:
Within sixty calendar days of this decision becoming final, the
agency shall determine the appropriate amount of back pay, and other
benefits due complainant for the period she was in leave without
pay (plus interest accrued on that sum from 30 days after the date
EEOC No. 07A00008 became a final decision) to the date of payment,
pursuant to 29 C.F.R. � 1614.501 and consistent with this 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 period of complainant's leave without pay status or the amount
of back pay and/or benefits, the agency shall issue a check to the
complainant for the undisputed amount within thirty (30) 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 "Implementation of the Commission's Decision."
Within sixty calendar days of this decision becoming final, the agency
shall conduct a supplemental investigation of complainant's entitlement
to compensatory damages. The agency is directed to inform complainant
about the legal standards associated with proving compensatory damages
and give complainant examples of the types of evidence used to support a
claim for compensatory damages. Complainant shall be given 30 calendar
days from the date she receives the agency's notice to provide all
supporting evidence of her claim for compensatory damages. Within 30
calendar days of the date the agency receives complainant's submission,
the agency shall issue a new final decision determining complainant's
entitlement to compensatory damages, together with appropriate appeal
rights.
The agency shall also submit a report of compliance, as described
below, including supporting documentation that the corrective action
has been implemented.
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
_October 19, 2004_________________
Date