01995749
08-31-2000
Anthony S. Kwak , Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Anthony S. Kwak v. Department of Defense
01995749
August 31, 2000
Anthony S. Kwak , )
Complainant, )
) Appeal No. 01995749
v. ) Agency No. AAFES97-130, 97-152,
) 97-154, 98-009, 98-052
) Hearing No. 170-98-8224x, 8225x, 8226x,
) 8227x, 8496x
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
)
DECISION
Complainant filed a timely appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination. He alleged discrimination on the bases of race
( Asian/ Pacific Islander), national origin (Korean), reprisal (prior
EEO activity), age (date of birth: 1/17/36), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> Complainant alleged he was discriminated
against when:
(1) he was counseled by the Area Manager after each visit from January
27, 1997 to June 11, 1997;
(2) he received a �satisfactory/do not advance� rating on his Personal
Evaluation Report for the period July 1, 1996 to June 30, 1997;
(3) he received a letter of reprimand on July 29, 1997;
(4) he was threatened with disciplinary action on July 20, 1997;
(5) he was counseled on July 31, 1997 for declining to shake the Area
Manager's hand;
(6) the Area Manager filed a sex discrimination complaint against the
complainant;
(7) he received notice of removal from his position as General Manager
Fort Dix/McGuire on October 3, 1997;
(8) a written reprimand was reduced to an oral reprimand on January 14,
1998.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission MODIFIES the agency's final decision which finds discrimination
but does not reinstate the complainant in his position as General Manager
at Fort Dix/McGuire.
Background
The record indicates that during the relevant time, complainant was
employed as a General Manager at the agency's Fort Dix/McGuire Exchange
facility. The above-referenced incidents led the complainant to believe
he was a victim of discrimination. He sought EEO counseling and,
subsequently, filed formal complaint(s) regarding these claims.
The administrative judge (AJ) issued a recommended decision without a
hearing, finding discrimination through a default judgment. She found
that the agency failed to respond to discovery requests and subsequently
failed to respond to the AJ's Discovery Order. As a result of the
agency's failure to respond to the AJ's Discovery Order, the AJ issued
an Order for Sanctions ordering among other things, that an adverse
inference be drawn against the agency regarding the information not
produced during discovery. At the same time, the AJ issued an Order to
Show Cause why a default judgment should not be entered. The agency failed
to answer the Order to Show Cause which led the AJ to enter an Order of
Default Judgment.<2> The AJ also issued recommended relief which included
�reinstate[ment] to his General Manager position for the Ft. Dix/McGuire
Exchange North East Region, or a comparable General Manager position�.
The agency final decision agreed with the AJ's findings and conclusions,
except it found that the complainant's transfer to Offutt Exchange in
Nebraska was a comparable position and it would not reinstate the
complainant in his position at Fort Dix/McGuire Air Force Base in
New Jersey.<3> The agency further concluded that the complainant's
relationship with his supervisors in the Northeast Region had
�deteriorated during the EEO process.� Offutt Exchange on the other
hand is in the Central Region, an apparent reference to the fact that
the complainant would not have contact with his former supervisors in
the Northeast Region.
On appeal, the complainant contends that the agency's refusal to reinstate
him as General Manager at Fort Dix/McGuire would only serve to perpetuate
discrimination. He argued that the positions were not comparable because
the annual sales at Fort Dix in 1997 were over $80 million whereas
they were only $42 million at Offutt. He pointed out that the number
of employees at Fort Dix was 316 compared to 183 at Offutt.
The agency responded that the complainant's current position was
comparable to his previous position because they were both located
at exchanges where the average monthly sales volume (AMSV) was in
the range for employees at his pay level. Other than his location,
the complainant's pay and job title remained the same according to the
agency.
Analysis and Findings
The only issue before us is whether the complainant has been denied
�make whole relief� by the agency's refusal to reinstate him into his
former position at Fort Dix/McGuire. The agency adopted the administrative
judge's recommended findings of discrimination based on a default judgment
on all bases alleged by the complainant and on all issues except one.<4>
The agency argued its transfer of the complainant to a position in its
Central Region constitutes a substantially equivalent position as the
one from which the complainant was removed.
"Make whole" relief has been defined as the placement of an individual,
as near as may be, in the situation he would have been in absent the
discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-419
(1975). When an agency finds that an employee has been discriminated
against, the agency shall provide full relief which shall include
an unconditional offer to the identified victim of discrimination of
placement in the position the person would have occupied but for the
discrimination suffered by that person, or a substantially equivalent
position. 29 C.F.R.� 1614. 501 (a)(3).
We cannot agree with the agency that it need not reinstate the complainant
into his previous position at Fort Dix/McGuire. Aside from its contention
that the positions are comparable, the agency fails to state adequate
grounds for why the complainant cannot be returned to the position
he would have occupied were it not for the agency's discrimination.
The agency claims that the relationship between the complainant and
his supervisors deteriorated during the EEO process but does not state
any support for its statement. In fact, our review of the record
indicates that the complainant's former second line supervisor in the
Northeast region is no longer in that position but has moved to the
Southeast Region. The complainant's third line supervisor remains in
his position but indicated in his testimony that he had minimal direct
contact with the complainant. Another Vice President in the Northeast
Region indicated he too had minimal contact with the complainant and
was not involved in the decision to withdraw a written reprimand.
The only remaining supervisor with direct contact to the complainant,
is the complainant's first line supervisor, the Area Manager. Based on
this fact alone, the agency does not present adequate reasons why the
complainant should not be put back in the position he would have been
absent discrimination.
We also cannot agree to let stand the agency's transfer of the complainant
across the country to a position in Nebraska against his will. The
record contains the complainant's unrefuted testimony that he had
concerns about having to transport his ailing wife to this new location
during the winter months and that he had not agreed to the transfer.
It is also clear from testimony of various managers that the Offutt
exchange was quite different from the Fort Dix/McGuire exchange because
there were fewer responsibilities associated with it. The agency's
statements during the investigation centered around the complainant's
alleged performance problems in handling the Fort Dix/McGuire Exchange.
Agency managers contended that transferring the complainant to Offutt
would address his performance problems because it was a different kind
of facility, a direct contradiction of its current position that the
job at Offutt was substantially equivalent to his former position.
CONCLUSION
For the foregoing reasons and based on the record as a whole, we
MODIFY the agency's final decision only in its refusal to reinstate
the complainant to his former position as General Manager at Fort
Dix/McGuire. We direct the agency to take remedial action consistent
with the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) days from the date this decision becomes
final, the agency shall offer to reinstate the complainant into his
former position as General Manager Fort Dix/ McGuire Air Force Base
Exchange. Complainant shall be given a minimum of fifteen (15) days from
the date of his receipt of the offer within which to accept or decline
the offer. The complainant shall also be awarded back pay, seniority
and other employee benefits from the date of the effective date of
his transfer in January 1998, along with any incurred and reasonable
attorney's fees.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 directed to conduct training for the first, second and third
line supervisors who were found to have discriminated against complainant
by removing him from his position at Fort Dix/McGuire. The agency shall
address these employees' responsibilities with respect to eliminating
discrimination under Title VII and the ADEA in the workplace.
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 back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Fort Dix/McGuire 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.
INTERIM RELIEF (F1199)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.502(b)).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R0400)
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:
August 31, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The AJ's finding of discrimination did not include the complainant's
claim that his supervisor's filing of a sex discrimination complaint
was discriminatory or in reprisal for his EEO activity.
3This position also included responsibility for Fort Monmouth, New Jersey,
and Thule, Greenland Air Force Base Exchanges.
4The agency called its lapses during the hearing phase of the case as
�unfortunate� but the AJ characterized the agency's actions as a �total
disregard for this administrative process, and the Complainant's rights
in the process.�