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.