0720080060
03-31-2009
Carlos Aponte, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Carlos Aponte,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0720080060
Hearing No. 510-2007-00256X
Agency No. NY-06-2394-SSA
DECISION
Following its September 11, 2008 final order, the agency filed an
appeal with this Commission requesting that we affirm its rejection of
the discrimination finding of an EEOC Administrative Judge's (AJ), in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The agency also requests that the
Commission affirm its rejection of the relief ordered by the AJ.
Complainant, a former Case Intake Technician, GS-986-08, at the agency's
ODAR Hearing Office in Ponce, Puerto Rico, filed a formal EEO complaint on
October 12, 2006.1 Therein, complainant claimed that he was discriminated
against on the bases of age (69) when:
1. he did not receive a Recognition of Contribution (ROC) award for
Fiscal Year 2006.
Following the investigation, complainant was provided with a copy of the
report of investigation and requested a hearing before an Administrative
Judge (AJ). On July 12, 1007, the AJ amended complainant's formal
complaint to include the following claim:
2. In reprisal for pursuit of the matter raised in the instant formal
complaint, complainant was denied a request for limited assignment
of duties under Article 27, Section 8 of the American Federation of
Government Employees/Social Security Ratification Agreement in violation
of the ADEA.
Following a hearing on December 19, 2007, the AJ issued a decision on
July 3, 2008, finding discrimination.
In her July 3, 2008 decision, the AJ found in regard to claim 1 that the
evidence supported a determination that complainant was discriminated
against based on his age when he did not receive an ROC award for Fiscal
Year 2006. The AJ first found that complainant established a prima
facie case of age discrimination. The AJ then noted that before the
award nominations, the Hearing Office Director (HOD), also complainant's
second-level supervisor, made age- derogatory comments about complainant
during a grievance meeting.2 Specifically, the AJ found the union
president (P1)'s testimony credible that these comments were made by HOD
at the grievance meeting. The AJ noted that the record reflects that P1
sent an e-mail to [a former agency Acting Chief Administrative Law Judge]
complaining about HOD's attitude and comments about complainant during
the grievance meeting. The AJ found that during their testimonies,
the management witnesses all gave vague and subjective reasons for not
giving complainant a ROC award. The AJ noted that in his testimony,
HOD stated that he was unaware of the criteria used by complainant's
first-level supervisor, on whose judgment he supposedly relied. The AJ
also noted that HOD testified that at the grievance meeting, he had to
treat complainant more severely because of his age so that the younger
employees would respect him.
The AJ determined that complainant was not given an award because
HOD believed that because of his age, complainant had to be treated
more severely than other younger employees. Based on the demeanor of
management witnesses, especially HOD, coupled with the objective evidence
presented, the AJ found that the agency's articulated reason not worthy
of credence. Therefore, the AJ found that complainant had demonstrated
by a preponderance of the evidence that the agency discriminated against
him on the basis of age.
Regarding claim 2, the AJ found that the evidence supported a
determination that complainant was discriminated against based on
his prior protected activity (pursuit of the instant complaint) when
he was denied a request for limited assignment of duties. The AJ
determined that complainant established a prima facie case of reprisal
discrimination. The AJ then noted that the record reflects that in
March 2007, complainant, in reliance upon Article 7, Section 8 of the
collective bargaining agreement (CBA), requested an adjustment to his
work assignments for medical reasons. The AJ noted that the Acting
Hearing Officer (A1) stated that by memorandum dated March 28, 2007,
she informed complainant that his request was denied. Specifically, A1
stated that she informed complainant that although the medical certificate
recommended rest periods, complainant was already allowed rest periods
in conformance with the CBA. A1 further stated that because complainant
had two break periods as all the other employees, A1 felt that she had
complied with the medical certificate and the doctor's recommendations.
The AJ noted that the record reflects that on April 11, 2007, P1 again
requested that A1 reconsider complainant's request and assign him
limited duties. P1 also informed A1 that complainant was willing to
submit additional medical information to support his request. The AJ
noted, however, that it was not until June 11, 2007, that A1 responded
and informed complainant that he had to submit a specific medical reason
for not being able to do a particular task.
The AJ found A1's reasons for denying complainant's request not credible
because A1 did not rely on any specific provisions or documents and
merely gave her belief that complainant was already getting rest periods
as all employees. The AJ also stated that A1's explanation was not
credible because complainant was seeking to be relieved of electronic
pulling duties based on a specific medical condition: his dry eyes.
The AJ determined that if complainant had only needed the rest period to
which all employees were entitled, he would not have invoked the specific
provisions of the CBA under Article 27, Section 8. The AJ noted that
A1 sent complainant a request for more specific information the same
day she found out that he was going to retire. The AJ found that A1's
action "was a weak attempt to try to hide was had been a discriminatory
motivation to prevent the complainant from invoking his privileges'
under the CBA." Therefore, the AJ found the agency's reason for not
granting complainant's request to be pretextual and in retaliation for
his prior protected activity.
After a review of the testimony, the AJ awarded complainant $15,000.00
in non-pecuniary compensatory damages to compensate him for the
discrimination. Specifically, the AJ found that complainant suffered
emotional pain and suffering, humiliation, and embarrassment when his
name was not announced to receive the ROC award and denying his request
to be excused of electronic pulling.
As for the remaining remedies, the AJ ordered the agency to give
complainant the ROC award with interest given in 2006 for the period of
October 2004 through September 2005; conduct training for supervisory and
managerial staff on the law of employment discrimination, with particular
emphasis on their responsibilities and obligations under the ADEA; and
post a notice on all employee bulletin boards stating that it was found
in violation of the ADEA.
On appeal, the agency requests that the Commission reverse the
AJ's decision because it contained factual findings not supported
by substantial evidence and legal errors. Specifically, the agency
argues that the AJ's award of compensation damages in the amount of
$15,000 was based on legal error because complainant is not entitled
to compensatory damages under the ADEA. The agency argues assuming,
arguendo, that compensatory damages are allowed, there was no indication
in the record that complainant claimed compensatory damages as a remedy.
The agency also argues that complainant failed to submit evidence of
pecuniary damages by demonstrating any particular quantifiable economic
damage that he suffered as a result of the agency's discriminatory
actions such as medical expenses. Furthermore, the agency argues that
the AJ erred in awarding complainant interest on the monetary award of
the ROC because the Commission has long recognized that interest on an
award is not a remedy under the ADEA.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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 a discriminatory
intent existed is a factual finding. See Pullman-Standard v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999).
After a careful review of the record, we discern no basis to disturb the
AJ's finding of discrimination. The findings of fact are supported by
substantial evidence, and that the AJ correctly applied the appropriate
regulations, policies and laws. The AJ correctly determined that
complainant provided that the agency's articulated reasons for its
actions were a pretext for age and reprisal discrimination.
However, in fashioning remedies for the discrimination, the agency
correctly determined that the AJ erred in awarding complainant $15,000
in compensatory damages. Federal sector complainants are not entitled
to compensatory damages in cases brought solely under the ADEA,
including claims of reprisal where the prior protected activity
was solely ADEA-related. Fraley v. Dept. of Veterans Affairs, EEOC
Appeal No. 01A33418, note 1 (May 4, 2004) (compensatory damages and
attorney's fees and costs are not available under the ADEA), citing Falks
v. Department of the Treasury, EEOC Request No. 05960250 (September 5,
1996). The agency also argues that the payment of interest on the ROC
award is not authorized for Federal employees who prevail on claims filed
under ADEA. The Commission has long recognized that payments of interest
by Federal government agencies could not be made unless there has been a
waiver of sovereign immunity. Complainant has not provided any authority
to establish that there has been a waiver of sovereign immunity for the
payment of interest on performance awards. See Burrell v. Department of
Health and Human Services, EEOC Appeal No. 01911602 (September 27, 1991).
In sum, we find that complainant is not entitled to compensatory damages
or interest on the ROC award, and modify the AJ's award accordingly.
We find, however, that complainant is nevertheless entitled to the actual
ROC award given in 2006 for the period of October 2004 through September
2005.3
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, we REVERSE the
agency's rejection of the discrimination finding, but MODIFY the AJ's
Order of remedies as it relates to the award of compensatory damages and
interest on the ROC award. We REMAND this matter to the agency to take
corrective action in accordance with the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall give complainant the ROC award given in 2006
for the period of October 2004 through September 2005.
2. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall conduct training for all supervisory and
managerial staff with particular emphasis on their responsibilities
and obligations under the ADEA and EEOC regulations with respect
to eliminating discrimination in the federal workplace in awards,
assignments, promotions, hiring, firing, compensation and other terms
and conditions of employment.
3. The agency shall post a notice in accordance with the paragraph below.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its ODAR Hearing Office in Ponce, Puerto
Rico, 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 (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
March 31, 2009
__________________
Date
1 The record reflects that on September 3, 2007, complainant retired
from agency employment.
2 The record reflects that complainant filed a grievance regarding
the Hearing Office Director's failure to take appropriate measures to
stop what he believed to be a pattern of disrespectful behavior by an
administrative assistant. The record further reflects that a meeting
was held on March 24, 2006 concerning complainant's grievance.
3 The record indicates that during this time frame, the Ponce Hearing
Office gave ROC awards amounting to $937 each.
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0720080060
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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