01982377
06-15-2001
Barbara M. Myklebust, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Barbara M. Myklebust v. Department of Veterans Affairs
01982377
June 15, 2001
.
Barbara M. Myklebust,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01982377
Agency No. 95-2127, 96-1618, 97-0481
Hearing No. 260-97-9097X, 260-97-9098X, 260-97-9099X
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaints of unlawful employment
discrimination on the bases of sex (female) and reprisal (prior EEO
activity) in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. For the reasons
stated herein, the agency's FAD is affirmed in part and reversed and
remanded in part.
The issue on appeal is whether complainant has established that the
agency discriminated against her, on the above-mentioned bases, when it
(1) in June 1995, removed complainant as a co-principal investigator
from a grant and, based on reprisal (prior EEO activity), when it (2)
subjected complainant to a reduction-in-force (RIF) and closed her
laboratory (lab) and (3) constructively discharged complainant from
employment on October 21, 1996.
Complainant was employed as a Biomedical Engineer at a Wisconsin facility
of the agency. Her employment was full-time and career-conditional
with an academic appointment as an Associate Professor at a neighboring
medical school<1>. In May 1993, complainant made allegations of sexual
harassment against her first-level supervisor (Supv), which prompted
an administrative investigation into the matter. A Board of Inquiry
(BOI) concluded that Supv made inappropriate comments that complainant
perceived as sexual harassment. As a result, the BOI made several
recommendations including a change in supervision for complainant.<2>
Subsequently, complainant suffered several actions adverse to her
employment with the agency. Complainant, believing she was a victim
of discrimination, sought EEO counseling and, subsequently, filed
three complaints. The first complaint, which was filed in July 1995,
alleged that the agency discriminated against complainant based on sex
(female) and reprisal (prior EEO activity) when it removed complainant
as a co-principal investigator from an agency grant after she and the
principal investigator on the grant had irreconciliable differences.
The second complaint was filed in April 1996 and alleged that the agency
discriminated against complainant based on reprisal (prior EEO activity)
when, under a continuing pattern of harassment, the agency subjected
complainant to a RIF<3> and closed her lab. The third complaint was
filed in December 1996 and alleged that the agency discriminated against
complainant based on reprisal (prior EEO activity) when it forced her to
resign from her career appointment with the agency. The three complaints
were investigated separately but then were consolidated for a hearing
before an EEOC administrative Judge (AJ).
The AJ issued a decision finding that the agency did not discriminate
against complainant on the basis of sex regarding her removal from the
grant. The AJ further found, however, that the agency did discriminate
against complainant on the basis of reprisal when it (1) removed
her from the grant, although she would have been removed even absent
discrimination<4>, (2) subjected complainant to a RIF and closed her
lab, and (3) constructively discharged complainant from employment.
The agency issued a FAD adopting the AJ's finding of no unlawful
employment discrimination based on sex and rejecting the AJ's findings
of unlawful employment discrimination based on reprisal. This appeal
filed by complainant followed.
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. McDonnell Douglas, 411 U.S. at 804.
Complainant can establish a prima facie case based on sex by showing:
(1) that she is a member of the protected group; (2) that she suffered
an adverse action and (3) that a similarly situated employee not in her
protected group was treated more favorably than she. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). In order to establish
a prima facie case of discrimination for an allegation of reprisal,
complainant must show: (1) that she engaged in prior protected
activity, e.g., participated in an EEO proceeding; (2) that the
responsible management official was aware of the protected activity;
(3) that she was subsequently disadvantaged by an adverse action; and,
(4) that there is a causal link between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F.Supp. 318, 324 (D. Mass), affirmed,
545 F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d
80, 86 (D.C. Cir. 1985); Burrus V. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10thCir. 1982), cert. denied, 459 U.S. 1071 (1982).
The causal connection may be shown by evidence that the adverse action
followed the protected activity within such a period of time and in such
a manner that a reprisal motive is inferred. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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
that discriminatory intent did or did not exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
The AJ found that complainant failed to establish a prima facie
case of discrimination based on sex regarding her removal from the
grant. Complainant's one comparator, the principal investigator on
the grant, who was allowed to remain on the grant is also a female.
With regard to the basis of reprisal, the AJ found that complainant
established a prima facie case as well as established that the legitimate,
nondiscriminatory reasons the agency articulated for its actions
was pretextual. The AJ cited the following reasons for her decision:
Supv controlled the grant dispute process and for several months failed
to inform complainant or her immediate supervisor that the principal
investigator on the grant was consistently complaining about complainant,
but instead initiated many ex parte communications with upper management
about the complaints; Supv consistently made disparaging remarks about
complainant to third parties; the manner in which complainant was
�RIFed� and lost her lab was inconsistent with usual agency practice
and makes it appear that the RIF and lab closure were unnecessary; the
agency's actions appeared more in furtherance of RIFing complainant rather
than assisting her in locating funding to support her salary and lab;
the agency placed complainant in a new position in an area (physical
therapy) that she had not worked in for 20 years and as a colleague of
or a subordinate of persons she had previously mentored in her lab.
The Commission has reviewed the full administrative record and finds that
the AJ's findings are supported by the record. Regarding the AJ's finding
of discrimination based on reprisal, we note that mere temporal proximity,
unless very close, is insufficient to establish causality. Clark County
School District v. Breeden, No. 00-866 (S.Ct. April 23, 2001). However,
in this case, proximity combined with the unusual manner of the agency's
actions established causality.
It is the decision of the Equal Employment Opportunity Commission
to AFFIRM the FAD's finding of no discrimination based on sex and to
REVERSE its finding of no discrimination based on reprisal, because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was proven by a preponderance of the evidence, is supported
by the record.
ORDER
The agency is ORDERED to take the following remedial action within 60
calendar days of the date this decision becomes final, unless otherwise
noted:
(1) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall offer to retroactively reinstate complainant
to her former position or a substantially equivalent position at the
Department of Veterans Affairs medical center. Complainant shall be given
a minimum of fifteen days from receipt of the offer of reinstatement
within which to accept or decline the offer. Failure to accept the offer
within the time period set by the agency will be considered a rejection
of the offer, unless complainant can show that circumstances beyond her
control prevented a response within the time limit.
(2) The agency shall determine the appropriate amount of back pay,
if any, with interest; overtime pay, if any, with interest; and other
benefits due complainant, pursuant to 29 C.F.R. � 1614.501, less any
appropriate offsets. The time period for purposes of back pay shall
be from the effective date of complainant's resignation until the
date complainant returns to duty, the date complainant declines the
non-conditional offer of reinstatement provided for in paragraph (1)
above, or the date complainant otherwise is unable to return to duty.
The complainant shall cooperate in the agency's efforts to compute the
amount of back pay, overtime 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, overtime 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
enforcement or clarification must be filed with the Compliance Officer,
at the address referenced in the statement entitled �Implementation of
the Commmission's Decision.�
(3) The agency shall pay complainant's reasonable attorney's fees and
costs in accordance with the paragraph below entitled, �Attorney Fees.�
(4) The issue of compensatory damages is REMANDED to the Hearings Unit of
the appropriate EEOC District Office. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to
the Hearings Unit. Thereafter, the Administrative Judge must be assigned
to further process the issue of compensatory damages in accordance with
the regulations.
(5) The agency shall post a notice of the finding of discrimination in
accordance with the paragraph below entitled, �Posting Order.�
(6) 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, training on the agency's obligations
under Title VII.
(7) The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's calculation of back pay, overtime pay, and other benefits
due complainant.
POSTING ORDER (G0900)
The agency is ordered to post at its Milwaukee, Wisconsin medical
center 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
June 15, 2001
__________________
Date
1Complainant filed a civil action against
the medical school because it terminated her academic appointment before
it was to expire, as a result of the RIF.
2Complainant alleged that her first-level supervisor was changed for
performance rating and time-and-attendance purposes but that her daily
activities were still subject to supervision by Supv because he was in
charge of Research.
3As a result of the RIF, complainant was placed in a full-time Health
Science Specialist position, which consisted of hands-on physical therapy
rather than research of which her previous position consisted.
4The AJ stated that the fact that complainant would have been removed even
absent the discrimination does not affect the finding of discrimination
but instead affects the damages complainant can receive on this issue.