01993239
08-15-2002
Terry Thompson, Complainant, v. Thomas E. White, Secretary, Department of the Army, (Walter Reed Army Medical Center) Agency.
Terry Thompson v. Department of the Army
01993239
August 15, 2002
.
Terry Thompson,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
(Walter Reed Army Medical Center)
Agency.
Appeal No. 01993239
Agency No. BGANFO9606G0230
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the bases of race (Black), reprisal (prior EEO activity)
and sex (male)<1> when:
(1) he was subjected to harassment when his complaint regarding a
co-worker's threat of physical violence was not properly investigated
and the employee was not disciplined;
(2) he was suspended for 14 days on November 22, 1994<2>;
(3) he was charged with being absent without leave (AWOL);
(4) he received an unfair performance evaluation in 1995;
The record reveals that during the relevant time, complainant was employed
as a Medical Clerk at the agency's Walter Reed Army Medical Center.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on December 14, 1995.
The agency dismissed several allegations and the complainant appealed the
dismissal to the Commission (Thompson v. Department of the Army, EEOC
Appeal No. 01966200). The Commission reversed the agency's dismissal,
in part, and remanded the issues listed above for investigation.<3>
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing but failed to appear at a pre-hearing conference
and the case was remanded back to the agency for a final decision.
In its FAD, the agency advised the complainant that the issue of a
14-day suspension was a mixed case matter appealable to the Merit
Systems Protection Board (MSPB). The agency went on to conclude that
complainant failed to establish a prima facie case of race discrimination
as to this issue and the others because he failed to show that any
similarly situated individuals were treated differently than he was.
Even assuming complainant had established a prima facie case of race
discrimination, the agency concluded that it established legitimate
non-discriminatory reasons for its actions that complainant failed to
show were a pretext for unlawful discrimination. Specifically, the
agency stated that complainant was suspended for disruptive conduct
which adversely affected morale and the flow of work in the unit,
he was insubordinate and had unauthorized absences from work during
his scheduled hours. Regarding the confrontation with the employee,
the agency concluded that complainant exhibited unprofessional conduct
which played a major role in instigating the incident.
Finally, with regard to his performance appraisal, the agency concluded
that complainant failed to demonstrate his performance merited a higher
rating. Moreover, complainant failed to show that others outside of his
protected group performed at the same level but received higher ratings.
The agency found that complainant stated a prima facie case of reprisal
but failed to establish by a preponderance of the evidence that the
agency's actions were based on reprisal. Based on these conclusions,
the agency found that complainant failed to prove by a preponderance of
the evidence he was subjected to discrimination on any of the alleged
bases. In the agency's notice to complainant of his right to appeal,
the agency gave complainant two sets of appeal rights - one denoting
�Appeal Rights for Nonmixed Complaints� and the second, �Appeal Rights
for Mixed Complaints.�
Complainant's Contentions on Appeal
On appeal, complainant contends that he was unfairly denied a hearing
before the EEOC AJ because his counsel inadvertently failed to note the
date of the hearing on his calendar. He argued that the Administrative
Judge (AJ) held ex parte communications with the agency on the morning of
the hearing and finally, that the agency could not make a final decision
because the investigative record was incomplete. Complainant requests
that we vacate and remand the agency's final decision for a hearing and
for further evidence to be taken. The agency makes no further comments
on appeal and requests that we affirm its FAD.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission finds that the issues in this case
do not fall within the jurisdiction of the MSPB as suggested by the agency
in giving complainant the right to appeal its final decision to the MSPB.
The complainant's suspension in this case was for 14 days and not the
requisite �suspension for more than 14 days� thus, making it fall outside
of actions within the MSPB's reach. 5 C.F.R. Part 752; See also EEOC
Management Directive 110 (MD110) Chapter 4-3. (11/9/99).<4> In addition,
the suspension was the subject of a settlement agreement and according
to complainant, there was no breach of the agreement with respect to
the suspension. Therefore, the issue need not be addressed on appeal.
We further find that complainant is not entitled to a hearing because
he failed to appear for a prehearing conference as directed by the EEOC
Administrative Judge(AJ). Such matters are within the discretion of
the AJ and there has been no showing that the AJ abused her discretion
in remanding the matter to the agency for a final decision.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), we find
that contrary to the agency's conclusion, complainant established a prima
facie case of race and reprisal because he is a member of a protected
group and he sought EEO counseling in November 1994; he testified that
he was treated differently than those outside of his protected group in
being charged AWOL and being suspended for actions that others were not;
his supervisors knew he had met with an EEO counselor in November 1994;
and the notice of suspension for being AWOL was issued six days after his
EEO activity. We also find that the agency's reasons for the charge of
AWOL are a pretext for discriminatory animus toward complainant's race
and in reprisal for his EEO activity.
Specifically, complainant's testimony that he was treated differently,
was corroborated by the testimony of a medical clerk (Black, EEO activity
not specified) (E1) and other evidence in the record. For instance,
E1 testified that the managers, many of whom were White, kept strict
tabs on complainant's whereabouts and that he was treated worse than
other employees. She stated the assistant charge nurse (White, EEO
activity not specified) (E2), as well as other supervisors approached
him in an aggressive manner and she stated she overheard the supervisors
making statements about getting rid of complainant which she thought
were related to complainant's EEO complaint activity. E1 stated she
often told only one other person on the ward if she had to leave or
where she was, but complainant was required to tell at least 2 people.
E1 stated this was not workable because medical clerks were required
to leave the unit to pick up charts and deliver x-rays and could not
wait to get permission from 2 people. She testified that E2 asked
her repeatedly about complainant's whereabouts creating a stressful
environment. His treatment of complainant was the worst, E1 stated.
E1 also testified that the supervisors would set clocks or their watches
to time the Black employees when they left the unit but not the White
employees. She testified that White workers did not always tell someone
when they left the unit or where they were going but they did not receive
discipline. She further stated that complainant was a good worker who
knew his job well, who helped her in her own work and always informed
her when he was leaving the unit for a work related purpose.
Complainant's testimony linked the adverse treatment he received with his
EEO activity and his race. He testified that he noticed a difference
in RMO1's treatment of him after he sought EEO counseling on November
16, 1994. He stated that before that time, their working relationship
was professional but after that date, RMO1 became hostile, grabbed papers
and charts from him and screamed at him. Complainant stated that White
employees were not required to get permission to leave the unit and were
not suspended or charged with AWOL.
RMO1's testimony regarding charging complainant with being AWOL
was inconsistent and lacked specificity. For example, RMO1 did not
specify the dates she charged complainant with being AWOL nor did
the record contain documentation of the dates complainant was AWOL.
The only date specifically documented in the record was November 16,
1994, the date complainant went to the EEO office regarding an alleged
assault on him by RMO1. As to the November 16th date, there were two
statements of individuals - one from the EEO counselor and the second
from a co-worker confirming that complainant had left the unit to seek
EEO counseling. The co-worker stated he informed RMO1 and complainant's
first line supervisor, RMO2, that complainant had gone to the EEO office.
The agency stated in its notice of proposed suspension that complainant
had been charged with being AWOL for the time he was in the EEO office.
This indicates the RMO1 and RMO2, who signed the suspension notice,
were aware that complainant had participated in protected activity.
RMO1 stated she charged complainant with being AWOL only because he did
not receive permission to leave the unit and not because he was somewhere
he should not have been. Her statement conflicts with her evaluation,
however, where she stated, complainant �spends extended periods of time
involved in non-work related activities.�
The record contains statements of other co-workers of complainant on the
unit who verified that he informed them of his whereabouts on specific
occasions when he had been questioned by E2 or RMO1. The record also
contains complainant's evaluations from the time period pre-dating and
post-dating the period when RMO1 supervised complainant. Such statements
as �Extremely conscientious about his work� and �Could always be depended
on...�were made, but there were no negative comments about his attendance
by the other evaluators.
Thus, the evidence established that RMO1 lacked credibility in her
assessment that complainant had chronic attendance problems where there
was no specificity regarding the dates of unauthorized absences and where
there was no evidence to support the agency's claim that complainant
was often absent from the unit without permission. The weight of the
evidence indicates that more likely than not, the charge of AWOL was
based on his race and in reprisal for his EEO activity.
Complainant claims that the performance appraisal he received for the
rating period March 31, 1994 to April 1, 1995 rating his performance
as �Fair� was discriminatory based on his race and in reprisal for his
EEO activity in November 1994. The rater, RMO1, began supervising
complainant in August 1994 until he was detailed in March 1995.
She indicated that complainant was successful in the technical aspect
of his job but that he �spends extended periods with non-work activity.�
She rated him as �needing improvement� in his adaptability and initiative
because he refuses to accept constructive correction. She also rated
him as �needing improvement� in his working relationships because he
was disrespectful of those in his supervisory chain and he refused to
meet with his supervisors for counseling. She noted that complainant
verbally intimidated the staff. Finally, RMO1 rated complainant as
�needing improvement� in responsibility and dependability because he
departs without notifying anyone and fails to seek permission from his
supervisors for off unit activities. She assessed complainant as a
non-team player who did not support the mission of the office and who
possessed �no potential for advancement.�
The Ward Master (Black, EEO activity not specified), another supervisor
of complainant during part of this rating period, testified that he had
not been consulted about complainant's rating but would have rated him
as �exceeds standards� in every element of his evaluation. His rating
contrasted sharply with RMO1's rating in that he stated complainant helped
the other medical clerks and taught them what he knew about the work.
In this regard, he stated that complainant was a team player and he
would recommend him for a commendation for his superior performance.
He further testified that complainant was never intimidating or rude
toward personnel but on the contrary was soft spoken and professional.
In further contrast, this supervisor gave the opinion that complainant
had promotion potential and should have been promoted at least two grade
levels by this time, because his performance was never sub-par and he
�always maintained his composure and acted professionally.�
The record revealed that complainant's evaluation for the 1992 to
1993 rating period in his same position by another rater was �Highly
Successful.� Subsequent to RMO1's rating, complainant received
the highest rating for the period June 1995 to February 1996, for
his work in the agency's Civilian Personnel Office. He was rated as
�totally committed to providing excellent customer service,� �extremely
loyal� and �displayed a professional attitude at all times�. Finally,
complainant testified that he had never received a �fair� rating and had
always received excellent ratings during his 8 years of employment with
the agency. He stated that he tried to meet with
RMO1 and RMO2 about the rating but they refused to meet with him or give
him reasons for the low rating.
These three starkly contrasting positive ratings of complainant's
performance and behavior to the rating of RMO1 in addition to the record
as a whole, indicate by a preponderance of the evidence that RMO1's
rating was influenced by discriminatory animus based on complainant's
protected EEO activity. As noted above, complainant testified credibly
that RMO1's behavior changed dramatically after she became aware of his
meeting with an EEO counselor and that she became hostile towards him.
The substantially lower evaluation of complainant's performance in March
1995 closely followed by only a few months, the complainant's EEO activity
in November 1994 and the suspension based on the charge of AWOL in the
latter part of 1994.
Finally, complainant contends that the agency's investigation of a threat
of assault allegedly made by E2 towards complainant was discriminatory
because no action was taken to discipline E2. The record contains
the statements of E2, and other witnesses, some of whom supported
complainant's version of events and some who supported E2. Therefore,
the weight of the evidence gathered did not necessarily support taking
disciplinary action against E2 and the evidence did not establish that
the investigation was tainted by discrimination.<5>
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 REVERSE the agency's final
decision and remand this case to the agency to take remedial actions in
accordance with this decision and Order below.
ORDER
1. The agency will expunge complainant's record of any charges of AWOL
from August 1994 through June 1995 within 30 days of the date of this
Order.
2. The agency will expunge the �fair' performance appraisal for the 1994
to 1995 rating period at issue in this case from his personnel file
and replace it with a successful rating within 30 days of the date of
this Order.
3. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant as a result of
the unlawful charges of AWOL, pursuant to 29 C.F.R. � 1614.501, no later
than sixty (60) calendar days after the date this decision becomes final.
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."
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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
4. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the Attorney's Fees paragraph set forth below.
No later than sixty (60) days after the agency's receipt of the
attorney's fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney's fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
5. The agency will require RMO1 and RMO2 to take 8 hours of training on
the provisions of Title VII, particularly with respect to the prohibitions
against discrimination based on race and reprisal.
6. The agency will consider taking disciplinary action against RMO1 and
RMO2 who were identified as being responsible for the discriminatory
actions taken against complainant. The agency shall report its decision
to the Commission in its Compliance Report. 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.
7. The agency will formally accept complainant's uninvestigated claim
regarding the second suspension in June 1995 for processing in accordance
with 29 C.F.R. Part 1614.
8. The agency will post notice as indicated in the Order below.
POSTING ORDER (G0900)
The agency is ordered to post at its Walter Reed Army Medical Center,
Washington, D.C. 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 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
August 15, 2002
__________________
Date
1Complainant withdrew his claim of discrimination based on sex in his
affidavit.
2The complaint makes reference to a second suspension in June 1995 which
was not investigated. The agency should formally accept this claim for
investigation in accordance with 29 C.F.R. Part 1614 as it appears to
have been brought to the attention of an EEO counselor in a timely manner.
3Complainant's claim that he was charged with being AWOL was part of
a settlement agreement which the complainant claimed was breached.
The Commission remanded the issue to the agency to determine whether
a breach had occurred. The agency reinstated the complaint for a
determination on the merits of the claim.
4The Commission also notes that the agency's investigation lacked
statements of two managers who had some knowledge about the events
but no explanation why the investigator did not fully pursue their
testimony. Every effort should be made to obtain a complete record in
the agency's investigation of the second suspension discussed above. See
29 C.F.R.�1614.108.
5The fact that E2 questioned complainant about his leaving the unit
during this incident was evidence supporting complainant's claim that he
was charged with being AWOL and for being suspended as a result because
of discrimination.