01973965
08-31-2000
Bonita J. Hovey, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Hovey v. Department of Housing and Urban Development
01973965
08-31-00
.
Bonita J. Hovey,
Complainant,
v.
Andrew M. Cuomo,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01973965
Agency No. SF 94-13
DECISION
Complainant timely filed an appeal with the Commission from the final
action taken by the agency concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. � 2000e et seq.; and Section 501 of the Rehabilitation
Act of 1973, 29 U.S.C. � 791.<1> The appeal is accepted. See 64
Fed. Reg. 37,644, 37,659 (to be codified and hereinafter referred to as
29 C.F.R. � 1614.402(a)).
The agency employed complainant as a housing management specialist, GS-11,
at its office in Sacramento, California. She filed a complaint in which
she claimed that the agency discriminated against her on the bases of
gender and physical disability (auto-immune disease, after-effects of
chemotherapy, and diabetes) by granting a male coworker preferential
assignments, in order to groom him for higher-level positions, beginning
in October 1993. The agency investigated the complaint and took final
action finding no discrimination, from which complainant now appeals.
The first issue raised in this appeal is whether complainant is
disabled. To bring a claim of disability discrimination, appellant
must first establish that she has a disability within the meaning
of the Rehabilitation Act. Murphy v. United Parcel Service, Inc.,
527 U.S. 516 (1999); Sutton v. United Air Lines, Inc., 527 U.S. 471,
119 S.Ct. 2139, 2141-42 (1999); Albertsons, Inc., v. Kirkingburg, 527
U.S. 555, 119 S.Ct. 2162, 2167-68 (1999).<2> An individual with a
physical disability is one who has, has a record of, or is regarded as
having a physical impairment that substantially limits one or more of
her major life activities. 29 C.F.R. � 1630.2(g).
In her affidavit, complainant identified auto-immune disorder, muscle
disease resulting from chemotherapy, and diabetes as her disabilities.
She indicated that she had cancer surgery in December 1991, that she
began chemotherapy in January 1992, and that she returned to work shortly
thereafter, performing light duty assignments between cancer treatments.
The record contains three documents pertaining to her condition.
The first document is a letter from a physician dated July 7, 1992.
This letter indicates that, for six months, complainant was to avoid
working outdoors in the sun, excessive walking, lifting over five
pounds, and working with computers not equipped with screens. The next
piece of medical documentation is a memorandum from complainant to her
supervisor dated June 18, 1993. Complainant was apparently responding
to her supervisor's request that she obtain medical clearance to travel.
She stated in the memo that she was taking medication, and that she
was well enough to travel. The final piece of medical documentation is
a letter from another physician dated December 20, 1993. This letter
indicated that complainant had been experiencing fatigue and muscular
weakness, that her condition was exacerbated by stress, and that she
was to avoid heavy lifting, long-term physical activity, and excessive
standing, walking, and travel. We find that this evidence is sufficient
to establish that complainant, at a minimum, had a record of a disability
which, at times, substantially limited her in the major life activities
of lifting and walking. Thus, complainant is an individual with a
disability under the Rehabilitation Act.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must
initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case
will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n.14. The thrust of complainant's claim is
that her supervisor gave a male comparative employee without a disability
(hereinafter referred to as the �comparator�) developmental assignments
that he did not give to her. In support of her claim she points out that,
although she and the comparator have the same job title and grade, they
have different job descriptions. She also stated that the supervisor
gave the comparator opportunities to participate in training and policy
development activities that he did not give her. This is sufficient to
establish a prima facie case of discrimination on the bases of gender
and disability.
The burden now shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). The agency presented its
case through the testimony of complainant's supervisor. The supervisor
did not attempt to articulate a reason for giving the comparator
career-enhancing assignments that he did not give to complainant. Rather,
he denied that he ever did so. Exhibit (Ex.) 6 at 2. The supervisor
testified that he did not become aware of the different position
descriptions until after the EEO investigator showed those descriptions
to him. He also testified that complainant had responsibility for
the TRACS computer system, while the comparator had responsibility
for the CFS system, and that the two served as backups for each other.
He denied that he ever designated the comparator as a lead person.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is pretextual. St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995). While disbelief
of the agency's articulated reasons does not compel a finding of
discrimination as a matter of law, disbelief of the reasons put forward
by the agency, together with the elements of the prima facie case, may
suffice to show intentional discrimination. Hicks, 509 U.S. at 511;
EEOC Enforcement Guidance on St. Mary's Honor Center v. Hicks (April 12,
1994); Huerta v. Department of the Air Force, EEOC Request No. 05930802
(April 1, 1994).
The agency generally has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing
authority absent evidence of unlawful motivation. Vanek v. Department of
the Treasury, EEOC Request No. 05940906 (January 16, 1997); Kohlmeyer
v. Department of the Air Force, EEOC Request No. 05960038 (August 8,
1996); Burdine, 450 U.S. at 259. Personnel decisions which are
idiosyncratic or suspect, however, will be subjected to heightened
scrutiny. Loeb v. Textron Corp., 600 F.2d 1003, 1012, n.6 (1st
Cir. 1979). Deviations from standard procedures without explanation
or justification are sufficient to support an inference of pretext.
Monroe v. Department of the Navy, EEOC Request No. 05950248 (August 8,
1996); Craig v. Y&Y Snacks, Inc., 721 F.2d 77, 80 (3rd Cir. 1983).
Three witnesses, two male and one female, testified that the supervisor
treated men better than women, and that he favored the comparator over
complainant due to gender considerations. Exs. 7, 8, 9. One witness, a
male GS-11 asset manager, testified that he observed that the supervisor
gave the comparator a free reign to go out into the field and perform
occupancy reviews while he limited complainant's field trips. He also
testified that the supervisor sent the comparator for training, but
not complainant. He stated, without contradiction, that the comparator,
who was a GS-9 at the time, was made a supervisor over GS-11 and GS-12
employees on a special project, despite the availability of higher-graded
employees to fulfill the supervisory function. Although the supervisor
denied that he ever tried to retroactively promote the comparator, the
record contains paperwork clearly establishing that, on May 6, 1993, the
supervisor initiated a personnel action to have the comparator promoted
to GS-11, retroactive to March 21, 1993. Exs. 3-2 at 3, 6. Finally,
the witness stated that he advised the supervisor that he was treating
complainant unfairly vis-a-vis the comparator. Ex. 7.
Another male asset manager, GS-12, testified that both complainant and the
comparator were to give a presentation jointly, with each person being
responsible for half of the presentation. According to this witness,
the comparator usurped the entire presentation, and the supervisor did
nothing to discourage him, or otherwise allow complainant to give her
part of the presentation. He also testified that, at another meeting,
in which noncompliance issues were on the agenda, he sought to make
complainant aware of kickback allegations, but that the supervisor cut
him off, telling him that women �telegraph� everything. Ex. 8.
Each of these witnesses worked directly under the supervisor. The agency
acknowledged the testimony of the three aforementioned witnesses
on pages 9 and 10 of its final decision. It acknowledged that the
supervisor was not a credible witness. It conceded that the supervisor
was aware of the differences between complainant's and the comparator's
position descriptions much earlier than the EEO investigation, that
the comparator served as complainant's backup, but not vice-versa,
and that the supervisor had unofficially designated the comparator
as the lead person in the unit, all of which the supervisor denied.
Notwithstanding these concessions, however, the agency concluded that the
supervisor's conduct in favoring the comparator was not discriminatory.
We disagree. The witnesses' statements regarding the supervisor's
treatment of female employees, together with the supervisor's lack of
credibility, is more than sufficient to establish the existence of at
least an unlawful gender-based motive on the part of the supervisor.
We are not persuaded, however, that the supervisor discriminated against
complainant based on her disability. Having found that the agency
discriminated against complainant, we now turn to the issue of remedies.
Once discrimination is found, the agency is required to make complainant
"whole" by restoring her to a position where she would have been were it
not for unlawful discrimination. Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418 (1975); Wrigley v. United States Postal Service, EEOC Petition
No. 04950005 (February 15, 1996). In this case, complainant asks for
the following:
That she be transferred to an asset manager position with the grade
potential to GS-12, and receive appropriate training, an opportunity
that was afforded other employees, as the result of a 1991 realignment;
Compensation for the discomfort, suffering, and frustration that she
endured from 1992 to 1993;
That she no longer be subjected to disparities in information and training
that she receives, i.e., that she receive the information and training
she needs to carry out her job to the same extent and in the same manner
as male or non-disabled employees; and
That her job description and performance evaluation plan (EPPES) be
revised so that it accurately reflects the duties and responsibilities
of her position.
As to item (1), complainant was a housing management specialist, not
an asset manager, at the time of the alleged discriminatory incident.
The record does not contain any documents or testimony pertaining
to selections for asset manager slots. Complainant has likewise not
pointed to the existence of any agency policy or practice pertaining to
the conversion of occupation specialists to asset managers. Finally,
there are no indications that the comparator was promoted beyond GS-11.
Without such evidence, the assumption that complainant would have become
an asset manager is speculative. See Ritchie v. United States Postal
Service, EEOC Request No. 05980501 (February 11, 1999) (the Commission has
been reluctant to assume that an individual, absent a discriminatory act,
would have subsequently received a competitive promotion). Accordingly,
we find that Complainant is not entitled to placement in an asset manager
position. Also, there are no indications in the record that complainant
would have received any pay or benefits in excess of her GS-11 salary.
We will therefore not require the agency to award complainant back pay.
Item (2) is clearly a request for compensatory damages, which complainant
is entitled to present a claim for. See West v. Gibson, 527 U.S. 212
(1999). The agency should request that complainant provide objective
evidence of the alleged damages. See Benton v. Department of Defense,
EEOC Appeal No. 01932422 (December 10, 1993).<3>
Regarding items (3) and (4), we find that complainant is entitled
to receive all of the training and developmental assignments that are
commensurate with the position of housing management specialist. She is
also entitled to have her position description and EPPES revised so that
it accurately reflects the duties and responsibilities of her position
as an occupation specialist. We will enter an order directing the agency
to provide the appropriate relief, including training for the supervisor.
Based upon the record, and for the foregoing reasons, the Commission
finds that the agency discriminated against complainant on the basis
of gender, but not disability, when she was not given developmental
assignments accorded a male comparator, between 1992 and October, 1993.
The agency's final action taken on March 5, 1997, is reversed. The agency
shall implement the relief set forth in our order below.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
The agency shall revise complainant's position description so that it
accurately reflects the duties and responsibilities of her position as
a housing management specialist, GS-1173-11. The agency shall complete
this action within sixty (60) calendar days of the date that this decision
becomes final, and shall include a copy of complainant's revised position
description with its report of compliance, referenced below.
The agency shall provide complainant with training and developmental
assignments of the same type and quality as those given to the comparator
between 1992 and October 1993. The agency shall, within sixty (60)
calendar days of the date that this decision becomes final, prepare an
individual development plan (IDP) for complainant establishing that,
within two years of the date of the IDP, complainant will be afforded
the necessary training and development assignments. It shall include a
copy of this IDP with its report of compliance, referenced below.
The issue of compensatory damages is REMANDED to the agency. The agency
shall conduct a supplemental investigation of the compensatory damages
issue. Complainant shall submit any evidence in support of her claim
for compensatory damages to the agency investigator no later than thirty
(30) days after this decision becomes final. The agency shall issue a
final decision addressing the issue of compensatory damages, together
with a check for the amount of compensatory damages actually awarded,
if any, no later than sixty (60) days after the date that this decision
becomes final. The agency shall submit a copy of the final decision to
the Compliance Officer at the address set forth below.
The agency shall provide training for the supervisor identified in
Complaint No. SF 94-13, as to his responsibilities and obligations under
the statutes enforced by the Equal Employment Opportunity Commission.
The agency shall complete this action within sixty (60) days of the date
that this decision becomes final.
The agency shall post at its Sacramento Office 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.
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 computation of compensatory damages, as well as documentary
evidence that the corrective action outlined in items (1) and (2) of
this order has been implemented.
Complainant shall cooperate in the agency's efforts to provide the relief
order above, including damages due, and shall provide all relevant
information requested by the agency. 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."
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)), 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 (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).
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).
COMPLAINANTS' 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:
Frances M. Hart
Executive Officer
Executive Secretariat
08-31-00
Date
_________________________
Date1 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 Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
3In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993), the Commission described the type of objective evidence that an
agency may obtain when assessing the merits of a complainant's request
for emotional distress damages:
[E]vidence should have taken the form of a statement by [complainant]
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
[complainant] day to day, both on and off the job. In addition, the agency
should have asked [complainant] to provide objective and other evidence
linking ... the distress to the unlawful discrimination... .Objective
evidence may include statements from the [complainant] concerning his or
her emotional pain or suffering, inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character
or reputation, injury to credit standing, loss of health, and any other
non-pecuniary losses that are incurred as a result of the discriminatory
conduct. Statements from others, including family members, friends, and
health care providers could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, loss of self-esteem,
excessive fatigue, or a nervous breakdown. Objective evidence may also
include documents indicating a [complainant's] actual out-of-pocket
expenses related to medical treatment, counseling, and so forth, related
to the injury caused by the respondent's discriminatory action.