Anthony S. Kwak , Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionAug 31, 2000
01995749 (E.E.O.C. Aug. 31, 2000)

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.�