Vernon W. Risby, Complainant,v.Tom Ridge, Secretary, Department of Homeland Security<1>, Agency.

Equal Employment Opportunity CommissionOct 16, 2003
07A20110 (E.E.O.C. Oct. 16, 2003)

07A20110

10-16-2003

Vernon W. Risby, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.


Vernon W. Risby v. Department of Homeland Security

07A20110

October 16, 2003

.

Vernon W. Risby,

Complainant,

v.

Tom Ridge,

Secretary,

Department of Homeland Security<1>,

Agency.

Appeal No. 07A20110

Agency Nos. TD-98-2270; TD-01-2130; TD-01-2231

Hearing No. 310-99-5339X

DECISION

Following its August 2, 2002 final order, 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

an EEOC Administrative Judge's (AJ) finding that the agency discriminated

against complainant on the bases of race and reprisal for prior protected

activity. For the following reasons, the Commission reverses the agency's

final order.

Complainant, a Special Agent, GS-12, employed at the agency's Dallas,

Texas facility, filed formal EEO complaints with the agency alleging that

the agency had discriminated against him on the bases of race (Black)

and reprisal for prior EEO activity when:

(1) he was not selected for the position of Senior Special Agent, GS-13,

under vacancy announcement number WA31811 (position 1)<2>;

he was not selected for the position of Senior Special Agent, GS-13,

under vacancy announcement number CAAPS/00-2KRH (position 2);

on January 4, 2001, he was issued a cease and desist letter regarding

possible sexual harassment;

in January 2001 his request for outside employment as an alternate

municipal court judge was disapproved;

in March 2001 he was subjected to fact-finding inquiries by the Customs

Headquarter's Office of Investigations for possible sexual harassment

and violations of the agency's Treasury Enforcement Communications System

(TECS).

At the conclusion of the investigations, complainant was provided a copy

of the investigative reports and requested a hearing before an AJ.

Following a hearing, the AJ found that complainant failed to established

a prima facie case on any alleged basis of discrimination with respect

to his non-selection for position 1, the January 4, 2001 cease and

desist letter, the disapproval of his request for outside employment,

and the fact-finding inquiry into possible sexual harassment. The AJ

also found that complainant did establish a prima facie case of race

and reprisal discrimination as to his non-selection for position 2,

and a prima facie case of reprisal as to the fact-finding inquiry into

alleged violations of TECS.

The AJ then found that the agency articulated legitimate,

nondiscriminatory reasons with respect to these two issues. Specifically,

as to the non-selection for position 2, the AJ found that the Resident

Agent in Charge (S1) of complainant's facility was the individual

ultimately responsible for making the selection for position 2, and

that he did not recommend complainant for the position at issue because

complainant exercised �poor judgment,� by, for example, incurring

large cell phone charges, paying his government credit card bill

late, and committing a violation of protocol during his involvement

with a particular case. (Hearing Transcript, pages 37-40, 44, 45,

85, 91). The AJ concluded, however, that these articulated reasons

for not selecting complainant for position 2 were pretextual. The AJ

specifically found that S1's statement to another employee, which the AJ

found to be reflective of the agency's unfavorable view of employees who

file EEO complaints, as well as the lack of support for S1's statements

regarding complainant's lack of judgment being the primary factor for his

non-selection, establish that complainant's non-selection for position

2 was motivated by discriminatory animus.

The AJ also found that with respect to S1 referring complainant to

Internal Affairs over possible violations of the TECS, the record

establishes that S1 believed complainant was accessing the TECS in

order to find information to support his EEO complaint. Further,

the AJ found that other employees under S1 were not similarly treated

when they accessed TECS for non-business reasons, or committed other

conduct violations. The AJ concluded that S1's referral of complainant

to Internal Affairs was a blatant act of reprisal.

By way of relief, the AJ ordered the agency to: (1) retroactively promote

complainant to the position of Senior Special Agent, GS-13, and provide

appropriate back-pay; (2) expunge from all records any references to the

alleged TECS violation, and provide complainant back-pay for any time

lost in connection with alleged violation; (3) provide S1 with at least

40 hours of sensitivity and EEO related training; (4) pay complainant

$15,000.00 in compensatory damages; and (5) $18,200.00 in attorney's

fees and costs.

The agency's final order rejected the AJ's decision. On appeal, the

agency argues that the AJ erred in finding discrimination, and contends

that the AJ's decision relied on improper credibility and factual

determinations. The agency further contends that the AJ's award of

$18,200.00 in attorney's fees and costs, and $15,000.00 in compensatory

damages was improper.

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. As to the non-selection for position

2, we note that one way to establish pretext in a non-selection case is

for complainant to show that his qualifications were plainly superior

to those of the selectee. Wasser v. Department of Labor, EEOC Request

No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048

(10th Cir. 1981). However, the Supreme Court held that pretext may also

be proven where:

�[t]he factfinder's disbelief of the reasons put forward by the [employer]

(particularly if disbelief is accompanied by a suspicion of mendacity)

may together with the elements of the prima facie case, suffice to

show intentional discrimination. Thus, rejection of the [employer's]

proffered reasons will permit the trier of fact to infer the ultimate

fact of intentional discrimination.�

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Upon review,

we concur with the AJ that complainant established a prima facie cases of

race and reprisal discrimination when he was not selected for position 2.

The AJ concluded that the agency's legitimate, nondiscriminatory reasons

for its selection were not worthy of belief because the record was

insufficient to support them. In this case, although we agree with

the agency that complainant did not prove he was �plainly superior�

to the selectee, we note that the AJ's finding of pretext was not

based on complainant's qualifications. Rather, the AJ found that S1's

explanations were not worthy of belief, and these findings are supported

by the record. Accordingly, we conclude that complainant established

by a preponderance of the evidence that the reasons given by S1 were

pretexts for discrimination. See Reeves v. Sanderson Plumbing Products

Inc., 530 U.S. 133 (2000). After a careful review of the record, we

discern no basis to disturb the AJ's finding of discrimination on the

bases of race and reprisal with regard to the non-selection.

Further, as to complainant being referred to Internal Affairs for his

alleged misuse of TECS, we concur with the AJ's finding that complainant

established a prima facie case of reprisal. We also concur with the AJ's

finding that the agency's articulated legitimate, non-discriminatory

reason for this action was not worthy of belief. We find that the

evidence of record supports the AJ's conclusion that S1's action in

referring complainant to Internal Affairs was clearly retaliatory given

that he disciplined complainant when he did not take action against

other employees for their similar improper conduct.

As to the compensatory damages awarded by the AJ, we find that the

award of $15,000.00 for damages was appropriate. We note that this

amount meets the goals of not being motivated by passion or prejudice,

not being �monstrously excessive� standing alone, and being consistent

with the amounts awarded in similar cases. See e.g., Hull v. Department

of Veterans Affairs, EEOC Appeal No. 01951441 (September 18, 1998)

($12,000.00 in non-pecuniary damages for emotional distress); Yue Lee

Wan v. United States Postal Service, EEOC No. 01995204 (July 11, 2001)

($15,000.00 in non-pecuniary damages for emotional distress, depression,

and inability to sleep); Olsen v. Department of Defense, EEOC Appeal

No. 01956675 (July 29, 1998) ($16,000.00 in non-pecuniary damages for

stress, depression, and anxiety).

Finally, with respect to the AJ's award of $18,200.00 in attorney's fees

and costs, we find that this award was premature as this amount was not

calculated based upon a statement of fees from complainant's attorney.

We, therefore, order the agency to process the attorney's fee request

in accordance with the Order below.

Accordingly, it is the decision of the Commission to REVERSE the

agency's Final Order. In order to remedy complainant for the agency's

discriminatory actions, the agency shall comply with the following order.

ORDER (D0403)

The agency is ordered to take the following remedial action:

Complainant is to be promoted to the position of Senior Special Agent,

GS-13, retroactively to the starting date of the selectee, in or about

November 2000.

Complainant shall be granted back pay and all seniority and benefits

retroactive to the starting date of the selectee.

The agency shall expunge from all records, including complainant's

personnel files, all references to TECS violations, or suspensions for

TECS violations, and provide complainant with appropriate back-pay for

any time lost in connection with the alleged TECS violations.

The agency shall consider taking disciplinary action against the agency

officials found to have discriminated 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.

The agency shall conduct EEO training for the responsible management

official cited in the complaint at issue herein. Such training shall

include, but not be limited to, the agency's obligations under Title VII.

The issue of attorney's fees is remanded in accordance with the order

below.

The agency shall determine the appropriate amount of back pay, with

interest, and other benefits due complainant, 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.

POSTING ORDER (G0900)

The agency is ordered to post at its Dallas, Texas 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 (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

October 16, 2003

__________________

Date

1 The complaint herein was originally filed against the Department of

the Treasury, Customs Service. The Customs Service is now a component

of the Department of Homeland Security.

2Complainant also alleged the basis of color (dark brown) with respect

to this non-selection.