01986429
04-14-2000
Burnis Tate, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Burnis Tate v. Department of Veterans Affairs
01986429
April 14, 2000
Burnis Tate, )
Complainant, )
) Appeal No. 01986429
v. ) Agency No. 951387
) Hearing No. 270-96-9007X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the basis of race (Black), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.� 2000e
et seq.<1> Complainant alleges he was discriminated against when he
was assaulted, verbally abused, threatened with being handcuffed, and
mistreated by agency employees on or about January 10, 1995. 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
reverses the agency's final decision.
BACKGROUND
The record reveals that complainant, a motor vehicle operator, WG-6,
at the agency's Little Rock, Arkansas facility<2>, filed a formal EEO
complaint with the agency on or around March 21, 1995, alleging that
the agency had discriminated against him as referenced above.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
recommended decision (RD)<3> finding discrimination.
The AJ concluded that complainant established a prima facie case of race
discrimination because he is a member of a protected group; he was
performing his duties when he was assaulted by the Chief of Ambulatory Care
and Processing Section (CAP) and threatened with being handcuffed by agency
security officers<4>; and the white co-worker (CW1) who was performing the
duties with complainant was not treated in this manner even though CW1 was
the individual who had annoyed CAP. In determining that an inference of
racial discrimination had been raised, the AJ also noted that complainant
had done nothing to provoke the reactions of any of the officials involved
and that it was CW1, not complainant, who had caused CAP's anger.<5>
The AJ then concluded that the agency failed to articulate a legitimate,
nondiscriminatory reason for its actions, noting that while it apologized
for the incident, it gave no explanation for CAP's action in jerking
or grabbing complainant, an action of grave disrespect. The AJ also
found there to be no reason for the security officers to make threats
concerning handcuffs or removal from the premises, noting her reliance
on CW1's testimony that complainant was not loud, was not cursing,
and was not creating a scene.
The AJ went on to conclude that even assuming the agency had articulated
a legitimate non-discriminatory reason for its actions, complainant
established that more likely than not, the agency's reasons were a
pretext for discrimination. In reaching her conclusion, the AJ found that
the agency argued that because this was a single incident, it was not
harassment. The AJ noted that this was not a case of harassment and
that complainant need not prove a pattern of harassment to successfully
contest an unprovoked physical assault, threats, abuse and rude treatment.
She concluded that the nature of the conduct and the agency's admissions
were direct evidence of discrimination.
The agency's final decision rejected the RD and concluded that no
discrimination had occurred. On appeal, complainant contends that the
RD correctly summarized the facts and reached the appropriate conclusions
of law.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
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 regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission discerns no basis
to disturb the AJ's finding of discrimination. While we disagree with
certain minor points within the AJ's decision, we find that she summarized
the relevant facts and, for the most part, referenced the appropriate
regulations, policies, and laws. Moreover, while the agency argued in
its FAD that the AJ gave no reason for accepting complainant's version
of events over the agency's, her conclusion that complainant's version
of events was the true version was supported by substantial evidence in
that she relied on the testimony of complainant and CW1.
In making the determination that the AJ's decision should be upheld, we
note that this case can be appropriately viewed as a disparate treatment
case. The thrust of the complaint is that complainant, a black man, was
treated abusively by management officials whereas CW1, a white man in the
same situation, was not so treated. We further find that complainant
raised an inference of discrimination when he described the incident
and noted that his white co-worker was treated more favorably than he.
We note, however, that contrary to the AJ's decision, this case does not
involve direct evidence of racial discrimination. "Direct" evidence
is that which on its face demonstrates a bias against a protected
group. Although the conduct in question here is troubling, it cannot be
said to meet this definition. See EEOC Revised Enforcement Guidance
on Recent Developments in Disparate Treatment Theory, N-915.002 (July
14, 1992).
We also agree with the agency that it articulated a legitimate
non-discriminatory reason for its actions�namely, that CAP only intended
to get complainant's attention and that security was called when
complainant reacted negatively in a public area. The fact that the AJ
found these reasons to be unworthy of belief, and instead credited the
testimony of complainant and CW1 that CAP grabbed complainant and that
at no point did complainant curse, speak loudly, or cause a scene that
justified calling security, more correctly supports a finding of pretext.
These minor corrections of the AJ's legal analysis, however, do nothing
to undermine the basic finding of discrimination. The AJ's finding
that complainant and CW1 correctly described the happenings on the
day in question is one that reasonable minds can accept based on the
testimony of complainant and CW1. Moreover, the AJ relied on these
facts rather than the agency's contrary explanation and concluded that
the true explanation for the incident at issue was discriminatory animus.
After a thorough review of the record, the Commission finds that the AJ's
recommended decision is therefore supported by substantial evidence on
the record and as such will not be disturbed on appeal.
Compensatory Damages
The AJ recommended a compensatory damages award in the amount of $3,000.
This award was based on complainant's testimony that the discrimination
he suffered caused humiliation, embarrassment and stress. The AJ also
noted that the grabbing of complainant's arm was an unprovoked physical
assault. Complainant did not indicate that he sought medical treatment
as a result of the discrimination, nor did he provide evidence of any
other out-of-pocket expenses, past or future.
The Commission notes that damage awards of emotional harm are difficult
to determine and that there are no definite rules governing the
amount to be awarded in given cases. In this regard, a proper award
must meet two goals: that it not be "monstrously excessive" standing
alone and that it be consistent with awards made in similar cases.
See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
We further note that jury and court awards for nonpecuniary damages
based on humiliation and embarrassment have varied considerably.
See, e.g., Kuntz v. City of New Haven, 3 A.D. Cas. (BNA) 1590, 1592
(D.C. Conn.) ($500.00 award for emotional distress based on plaintiff's
testimony that he was "disappointed", "cranky" with family and friends,
"embarrassed" at not having been promoted, and had many sleepless nights),
aff'd without opinion, 29 F.3d 622 (2d cir.), cert. denied, 115 S.Ct. 667
(1994); Sassaman v. Heart City Toyota, 66 Fair Empl. Prac. Cas. (BNA)
1230, 1236 (N.D. Ind. 1994) (jury award of $2,000.00 in nonpecuniary
damages appropriate in sexual harassment case based on plaintiff's
testimony concerning humiliating, degrading, and embarrassing conduct
of four male supervisory employees and testimony of employer's medical
expert that plaintiff likely would suffer "daily pain" having to work
in hostile environment); see also Turic v. Hospitality House, Inc.,
849 F. Supp. 544 (W.D.Mich. 1994) ($50,000.00 in sex and religion
discrimination/termination case).
Several Commission decisions have awarded compensatory damages in cases
similar to complainant's. See, e.g., Benson v. Department of Agriculture,
EEOC Appeal No. 01952854 (June 27, 1996) ($5,000 sufficient to compensate
for embarrassment and humiliation); Lawrence v. United States Postal
Service, EEOC Appeal No. 01952288 (April 18, 1996) ($3,000 for emotional
harm caused by short period of sexual harassment where agency failed to
take appropriate action to promptly stop the harassment). Taking into
account the testimony provided by complainant, the Commission finds
that the AJ considered the proper factors and goals in recommending a
compensatory damages award of $3,000. The Commission notes that this
amount is not "monstrously excessive" standing alone and is consistent
with amounts awarded in similar cases.
CONCLUSION
Accordingly, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final decision and ORDERS the agency to take
remedial action in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall issue a check to complainant in the amount of $3,000,
as recommended by the AJ, within thirty (30) calendar days of the date
this decision becomes final.<6>
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
POSTING ORDER (G1092)
The agency is ORDERED to post at its Overton Brooks Medical Center,
Shreveport, Louisiana 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 (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 (R1199)
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:
4/14/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., has occurred at the Department of Veterans
Affairs, Overton Brooks Medical Center, Shreveport, Louisiana facility
(facility).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have discriminated on the basis of race when
an employee was assaulted, threatened and mistreated on January 10,
1995. The facility was ordered to: (1) pay compensatory damages to
the employee in the amount of $3,000 and (2) post this notice. At the
time of this order, the facility had already issued a written apology
to the employee and the responsible management official was no longer
employed by the Department of Veterans Affairs.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
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.
2 Although complainant was employed by the Little Rock facility, the
January 10, 1995 incident took place at the Overton Brooks Medical Center,
Shreveport, Louisiana. At the time, complainant was bringing a patient
to the Shreveport facility.
3 Since the AJ's decision was issued prior to the new regulations,
we refer to it as a Recommended Decision.
4 The AJ also made reference to complainant's claim during the hearing
that an agency attorney was rude to him during a conversation about the
January 10, 1995 incident.
5 After determining that an inference of discrimination had been
established, the AJ found the unprovoked assault on complainant, "a very
dark complexioned Black man" to be direct evidence of discriminatory
animus.
6 As noted by the AJ, CAP is no longer employed by the agency and
complainant has already received a written apology from the Director of
the Shreveport Medical Center for the incident of January 10, 1995.