01973582
03-11-1999
Alan G. Woolsey, Appellant, v. Richard J.Danzig, Secretary, Department of the Navy, Agency.
Alan G. Woolsey, )
Appellant, ) Appeal No. 01973582
v. ) Agency No. SON 95-41273-001
Richard J.Danzig, ) Hearing No. 360-96-8742X
Secretary, )
Department of the Navy, )
Agency. )
DECISION
Appellant timely initiated an appeal to this Commission 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,
as amended, 42 U.S.C. �2000e et seq., which is accepted pursuant to the
provisions of EEOC Order No. 960.001.
The issue presented is the relief to which appellant is entitled as a
result of the finding that he was subjected to retaliation when he was
issued a performance evaluation with a summary rating of �Exceeds Fully
Successful� rather than �Outstanding.�
Appellant was employed by the agency in Corpus Christi, Texas.
In January 1994, he first engaged in protected EEO activity by seeking
EEO counseling, and he later filed a formal complaint alleging that
the Manager of the Human Resources Office (the �Manager�) discriminated
against him by not selecting him for a supervisory position. In April
1994, appellant sought EEO counseling, and he later filed a formal
complaint alleging that he had been subjected to harassment by his
supervisor due to retaliation, and requested a temporary reassignment
elsewhere. In January 1995, appellant sought EEO counseling, and he later
filed a formal complaint challenging his placement on a reduction-in-force
register and a letter of caution.
On May 22, 1995, appellant received a performance evaluation wherein the
Manager gave him a summary rating of �Exceeds Fully Successful.� On May
24, 1995, appellant sent a memorandum to the Manager which contended
that his performance merited a summary rating of �Outstanding.� In a
postscript, appellant stated that earlier in the morning, he had been
offered and had accepted �the Puerto Rico job.� While the Manager
subsequently raised appellant's rating on one element, he did not raise
the summary rating. Believing that the failure to give him a summary
rating of �Outstanding� was due to retaliation for his protected EEO
activity, appellant sought EEO counseling on June 26, 1995, and filed
his instant formal EEO complaint on October 10, 1995.
With respect to the position in Puerto Rico, the record reflects that,
on May 11, 1995, appellant submitted an application for a position in
Puerto Rico. Appellant states that he had already informed an agency
official that he was not interested in this position, but the official
persuaded him to submit an application in case appellant changed his mind.
In his affidavit, the official states that appellant expressed interest
in the position. Attached to the official's affidavit are copies
of e-mail messages, including: a message to appellant dated April 17,
1995, inquiring whether appellant was still interested in the position; a
message dated April 19, 1995, from the official to appellant's supervisor,
stating that appellant confirmed his interest in the position in a
conversation on the previous day; and a message dated May 25, 1995, from
appellant to the official, expressing thanks for selecting him. (However,
when the agency attempted to introduce evidence of other positions outside
of Corpus Christi for which appellant had submitted applications since
1991, the AJ refused to permit its introduction, ruling that it was
outside the relevant time frame. See Hearing Transcript at 292-294.)
Appellant's last day of work in Corpus Christi was June 30, 1995.
In his instant complaint, filed on October 10, 1995, appellant requested
as relief that his summary rating be changed to �Outstanding.� The
EEO Counselor's Report indicates that appellant also sought $300,000
in compensatory damages. After the agency accepted and processed the
complaint, he timely requested a hearing before an EEOC Administrative
Judge (�AJ�). After the hearing, the AJ issued a recommended decision
(�RD�) which found that appellant's summary rating was due to retaliation
for his protected EEO activity. As relief, the AJ recommended that:
appellant's summary rating be changed to �Outstanding;� he receive any
awards to which such a rating would entitle him; he receive attorney's
fees; he be awarded compensatory damages; the Manager attend 20 hours
of EEO training; and the posting of a notice. While the AJ directed
the agency to determine the amount of compensatory damages which should
be awarded to appellant, the AJ recommended that the agency reassign
appellant to the Corpus Christi office and award him �one-third of
all pecuniary damages which he can prove as a result of his decision
to move to Puerto Rico.� In this regard, the AJ found that appellant
�felt compelled to move away from the retaliatory work environment in
Corpus Christi.�
In its FAD, the agency adopted the RD insofar as it found that the
Manager had retaliated against appellant by giving him a summary rating
of �Exceeds Fully Successful� rather than �Outstanding.� However, the
agency modified the relief recommended by the AJ. The agency awarded
appellant $3,000 in nonpecuniary compensatory damages, but declined
to award any damages with respect to appellant's move to Puerto Rico.
The agency noted that appellant's instant complaint challenged only
the summary rating he received on May 22, 1995, and disputed the AJ's
finding that his receipt of the summary rating was partially the cause
of him accepting the position in Puerto Rico. (The FAD reflects that
appellant's previously filed complaint alleging that he had been subjected
to a hostile environment based on retaliation since November 1994 was
still in processing and scheduled for a hearing before an AJ.)
Appellant timely appeals and argues that the AJ properly awarded him
damages with respect to his move to Puerto Rico. Among other damages,
appellant seeks: front pay for the next five and one-half years until he
is retirement eligible; compensation for his loss of income for playing
in two symphonic orchestras in Corpus Christi and compensation for
his wife's loss of her position as a Church hostess in Corpus Christi;
transportation expenses for his daughter, who was in college in Corpus
Christi, plus payment for telephone calls to her and her living expenses
in Corpus Christi; expenses for storing and insuring two automobiles in
Corpus Christi; payment of the mortgage on his house in Corpus Christi
for 12 months and the cost of its upkeep and any repairs needed to restore
it to the condition it was in prior to its rental. (The record reflects
that appellant's position in Corpus Christi was scheduled as a rotational
assignment with return rights from Puerto Rico and that he returned to
Corpus Christi in approximately November 1997. In a letter submitted
after his return from Corpus Christi, appellant also expresses doubt that
the agency ever posted the notice called for in the RD and the FAD.)
Appellant also challenges the agency's award of $3,000 in nonpecuniary
damages, and argues that he is entitled to an award of $300,000.<1>
In its comments on the appeal, the agency notes that the only issue
accepted and processed in the instant case concerned appellant's summary
rating received in May 1995, and not whether the environment in Corpus
Christi was hostile. In any event, the agency contends that appellant
began looking for positions outside of Corpus Christi in 1991, long
before issuance of the rating. In this regard, the agency notes that
appellant submitted paperwork for the position in Puerto Rico prior to
his receipt of the summary rating in issue in his instant complaint.
The agency points to appellant's hearing testimony and argues that it
establishes that he developed a dislike for the Puerto Rican community
and culture after moving there; thus, the agency argues that he is now
trying to obtain an award for a decision that he later regretted making.
After a thorough review of the record (including arguments and
evidence not specifically addressed herein), it is the decision of the
Commission to AFFIRM the FAD. In this regard, the Commission believes
that the agency correctly contends that appellant's instant complaint
challenged only the summary rating received in May 1995, and that the
issue of whether appellant reasonably sought a transfer out of the Corpus
Christi area is more appropriately addressed by the AJ hearing appellant's
complaint that, since 1994, he had been subjected to a hostile environment
based on retaliation in the Corpus Christi facility.<2>
In order to ensure that the agency has implemented all of the corrective
relief awarded in this matter, this matter is REMANDED to the agency so
that it may take the corrective actions set forth in the following ORDER.
ORDER (D1092)
To the extent it has not already done so, the agency is ORDERED to take
the following remedial actions within thirty (30) days after the date
that this decision becomes final:
The agency shall revise all applicable records to reflect
that appellant received a summary rating of �Outstanding� on his
performance evaluation for the period ending April 30, 1995, and shall
grant him any awards to which such a rating entitles him.
The agency shall issue a check to appellant in payment of
the $3,000.00 in compensatory damages awarded under the FAD.
(3) The agency shall take corrective measures to prevent the recurrence
of the discriminatory actions in this case, including mandatory training
for its applicable supervisory personnel regarding their obligations
under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq.
(4) The agency shall award appellant reasonable attorney's fees incurred
in the processing of the complaint. 29 C.F.R. �1614.501 (e).<3> 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.
(5) 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 verifying
that the foregoing corrective actions have been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Corpus Christi, 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request
containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 11, 1999
________________ ___________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant also seeks damages for the agency's allegedly bad faith
rejection of the AJ's recommendation that he be immediately returned
to Corpus Christi and awarded one-third of the pecuniary damages sought
for the move to Puerto Rico, as well as $250 per day for its refusal to
mitigate damages by returning him to Corpus Christi. However, this is
a request for punitive damages which, under the provisions of Section
102(a)(3) of the Civil Rights Act of 1991, are not allowed against a
government entity.
2The Commission's records do not reflect that appellant has filed any
appeal from a FAD addressing the issue of whether he was subjected to
a hostile environment based on retaliation in the Corpus Christi facility.
3The Commission notes that appellant is not a prevailing party for
purposes of any attorney's fees incurred in connection with his instant
appeal.