0120053362
01-19-2007
Timothy D. McLain, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Timothy D. McLain,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120053362
Hearing No. 210-A3-6323X
Agency No. ARMCCOY02OCT005
DECISION
On April 4, 2005, complainant filed an appeal from the agency's February
22, 2005 final order concerning his equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as a Supervisory Logistics Management Specialist, GS-0346-12, in the
agency's Training Support Logistics (G4) Division, located in Arlington
Heights, Illinois. On September 16, 2002, complainant contacted an EEO
Counselor and filed a formal EEO complaint on October 28, 2002, alleging
that he was discriminated against and harassed on the basis of reprisal
for prior protected EEO activity (arising under Title VII) when:
1. He did not receive his performance evaluation for the period ending
November 30, 2001, until August 17, 2002 and the evaluation was below
the previous evaluations; and,
2. The agency failed to complete complainant's performance evaluation for
the period ending October 31, 2002, in a timely manner, thereby depriving
him of an opportunity to be considered for performance based awards.
In addition, complainant cited six (6) incidents as examples of the
alleged hostile work environment.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on April 8, 2004 and
issued a decision on January 24, 2005. Specifically, the AJ found that
complainant was subjected to a hostile work environment in retaliation
for his prior EEO activity. The agency subsequently issued a final
order fully adopting the AJ's finding that complainant proved that he
was subjected to discrimination as alleged.
In this case, in terms of remedial action, the AJ ordered the agency
to post a notice at the agency notifying employees that discrimination
was found against the agency. The AJ ordered no additional remedies.
In his decision, the AJ stated "Complainant is entitled to compensatory
damages. Complainant, however, did not allege or establish any damages
he sustained. Accordingly, no damages will be assessed." AJ Decision
at 9. In the final order, the agency likewise did not award compensatory
damages or other remedies to complainant.
On appeal, complainant first states that he is not challenging the AJ's
finding that he was subjected to a retaliatory hostile work environment,
nor is he challenging the agency's implementation of that finding.
He states that he is only appealing the denial of damages. Complainant
concedes that he did not address the issue of compensatory damages at
the hearing or at any other time during the processing of this case.
He admits that he now realizes he should have done so, as he suffered
physically and mentally from the maltreatment he received at the
hands of management. He also requests that the responsible management
officials be disciplined, and he requests reinstatement of 400 hours of
sick leave and 400 hours of annual leave, which he says he used in order
to avoid the "daily abuse, maltreatment, and disrespect emanating from
the Command Group." Complainant's Brief, at 3.
In its Opposition Brief, the agency contends that complainant is not
entitled to compensatory damages because he did not ask for such damages,
and he failed to present any evidence to support a claim for compensatory
damages. The agency also cites Lawrence v. United States Postal Serv.,
EEOC Appeal No. 01952288 (April 18, 1996), and states that that relief
requested by a complainant regarding an apology and discipline of her
supervisor is, in general, beyond the scope of damages deemed appropriate
in specific cases.
Initially, we will outline the information that is in the record
concerning complainant's request for remedies.1 The Counselor's
report states that complainant requests the following relief: "That
the Performance Rating at issue be changed from Successful Level 2
to Successful Level 1; that he be accorded a performance award fully
commensurate with the revised Performance Rating and commensurate with
the awards accorded to comparably situated and evaluated employees; that
his position description either be amended to delete the supervisory
duties and the Government Purchase Card duties taken from him, or that
those duties be restored; that [a specific manager] be removed from his
rating chain and be replaced by [another specific manager], or absent
such a change his complaints be elevated to either USARC or First Army
level, and the harassment cease immediately." In his formal complaint,
complainant did not specify the relief he wanted. In the Report of
Investigation, the requested relief is stated as follows: "1. Amend
rating which ended in 2001 to show a Level 1 as opposed to Level 2.
2. Remove [a specific manager] from his rating chain. 3. Return him
to full responsibilities of his position description as a supervisor
or rewrite the position description to remove those responsibilities.
4. Discontinue hostile work environment directed at him." Report of
Investigation at 2.
First, we note that we cannot award complainant compensatory damages at
this stage of EEO processing, where complainant did not request such
damages in his formal complaint or at any point prior to this appeal,
and where he has not presented evidence in support of a claim for
compensatory damages. In so finding, we note that at the beginning of
the hearing, the AJ stated "Since Complainant does seek compensatory
damages and the hearing is not bifurcated, all evidence on the issues
of liability and damages must be presented at the scheduled hearing."
Hearing Transcript (HT), at 6.2 Nevertheless, complainant still failed
to present any such evidence at the hearing. In this case, we simply
cannot award compensatory damages. In addition, complainant did not
request restoration of leave in his formal complaint or at any other
point in the processing of this case. Complainant also did not present
evidence concerning the relationship between his leave usage and the
discriminatory acts in this case. Accordingly, we decline to award
complainant restoration of his leave.
As neither party challenges the finding on the merits of this case, we
AFFIRM the finding of hostile work environment, however, we hereby MODIFY
the final order's award of remedies because the agency should train the
responsible management officials on their obligations under Title VII,
with emphasis on management's responsibility not to retaliate against
employees who engage in the EEO process.3 We also recommend that the
agency consider discipline for the responsible management officials.
The agency is ordered to comply with the ORDER below.
ORDER
The agency is ORDERED, within 60 calendar days of the date this decision
becomes final:
(1) To take corrective, curative and preventive action to ensure that
retaliation does not recur.
This includes, but is not limited to, 20 hours of training for the
relevant management officials, regarding their responsibilities
with respect to eliminating discrimination in the federal workplace.
The training must emphasize the agency's obligations under Title VII,
and in particular, the law against retaliation; and
(2) To consider taking appropriate disciplinary action against
the responsible management officials. The Commission does not consider
training to be disciplinary action. The agency shall report its decision
to the compliance officer. 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. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
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
January 19, 2007
__________________
Date
1 Most of complainant's requests for remedies would only be appropriate
in the event that there were a finding of discrimination on the other
issues in the complaint concerning the performance appraisals.
2 It is not clear why the AJ stated at the hearing that complainant seeks
compensatory damages, and then in his decision states that complainant did
not request such damages. This is immaterial however, because either way,
it is clear that complainant still failed to come forward with evidence
to substantiate a claim for compensatory damages.
3 The record indicates that the agency has already complied with the
requirement to post for 60 days at the relevant facility, the AJ's Notice
to Employees concerning the discrimination.
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0120053362
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036