Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01990005 (E.E.O.C. Apr. 14, 2000)

01990005

04-14-2000

Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs Agency.


v. Department of Veterans Affairs

0199005

April 14, 2000

)

Complainant, )

) Appeal No. 0199005

v. ) Agency No. 952221

) Hearing No. 340-95-2221

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal from the agency's final decision

(FAD) concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> 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 reasons that follow, the Commission AFFIRMS the FAD.

The record reveals that complainant, a Technical Writer/Editor at

the agency's Sepulveda, California, Medical Center, filed a formal

EEO complaint claiming that she was the victim of harassment due to a

hostile work environment because of her sex (female). At the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

The AJ issued a recommended decision (RD) without a hearing, finding

that complainant prevailed in her claim of harassment. The AJ did not

conduct a hearing on the merits because the agency stipulated to the

findings of discrimination and harassment in the investigative report,

however a hearing was conducted on the issue of damages.

The AJ concluded that complainant was entitled to compensatory damages

for the emotional upset and attendant pain and suffering due to the

harassment, but determined that there was no evidence of any pecuniary

damages in terms of lost wages or medical expenses. More specifically,

the AJ found that complainant was entitled to an award in an amount to

compensate her for "severe emotional distress" from June 9, 1995, through

August 1995, and for moderate emotional distress from September 1995 to

the time of her separation from the agency in April 1998. The AJ also

recommended that this amount be discounted by ten percent due to other

contributing factors. The AJ also recommended that complainant's negative

performance evaluation be removed from her personnel file, noting that a

new fully satisfactory evaluation had already been placed in the file, but

the old one had not been removed. As corrective action, the AJ further

recommended "make whole relief" in addition to compensatory damages.

The FAD adopted the RD. However, the FAD noted that the AJ did not

specify a particular dollar amount for compensatory damages, and found

that the record was not sufficiently developed to ascertain this amount,

and asked that complainant submit additional evidence pertinent to

determining the amount of compensatory damages. The FAD fully set forth

an explanation of compensatory damages, described the types of evidence

necessary to make the determination, and asked complainant to submit her

evidence within thirty days of receipt of the FAD. As equitable relief,

the FAD also stated that the agency would rectify the complainant's

performance appraisals consistent with the RD, and also stated that

it would retroactively reassign complainant to a suitable position

in the same grade or series, with an award of back pay with interest,

and any other benefits due to complainant. The FAD also indicated that

the reassignment would be to a position in the same geographic area as

her former position unless complainant agrees otherwise, and that the

responsible management officials would have no supervisory authority

over her in the reassigned position. Although not addressed by the

AJ, the FAD also found that complainant was entitled to restoration to

all leave taken which was attributable to the harassment, and that she

should be given fair performance appraisals for any periods where she

did not receive one. The FAD also requested that complainant submit

pertinent documentation regarding attorney's fees, setting forth a

full explanation of the type of evidence required. Additionally, the

FAD also stated that the agency would take measures to prevent further

discrimination or reprisal, including possible discipline of responsible

management officials. The FAD requested that complainant submit any

information requested within thirty days of receipt of the FAD.

Within the thirty day period, instead of responding to the instruction in

the FAD, complainant instead appealed the FAD, claiming "non-compliance."

In a statement submitted two months later, complainant then explained

that the agency failed to submit a settlement agreement to her regarding

damages, construing this as "non-compliance." In response, the agency

pointed out that complainant's recourse was to contact its Deputy

Assistant Secretary for Resolution Management, as set forth in its FAD,

arguing that the appeal was improper, and that it should be dismissed.

The agency also indicated that it was referring the matter to its

Resolution Management office for a determination.

Review of complainant's appellate statements indicate that she is confused

about the process and did not understand the FAD. In the interest

of justice, we find that all time requirements were tolled as of the

date the appeal was filed (September 28, 1998), and we are ordering the

following remedies consistent with the RD and the FAD.<2>

ORDER

1. The issues of compensatory damages and attorney's fees and costs are

REMANDED to the Hearings Unit of the Los Angeles, California District

Office. Thereafter, the Administrative Judge shall issue a decision

on these issues in accordance with 64 Fed. Reg. 37,644, 37,657 (1999)

(to be codified at 29 C.F.R. � 1614.109), and the agency shall issue

a final action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999)

(to be codified at 29 C.F.R. � 1614.110) within forty (40) days of receipt

of the Administrative Judge's decision. The agency shall submit copies

of the Administrative Judge's decision and the final agency action to

the Compliance Officer at the address set forth below.

2. The agency is ordered to take the following remedial actions:

A. The agency will retroactively reassign complainant to a suitable

position in the same grade or series in the same geographic area as

her former position unless complainant agrees otherwise. The agency

will insure that the management officials responsible for the instant

harassment and discrimination will have no supervisory authority over

complainant in her newly reassigned position.

B. The agency shall determine the appropriate amount of back pay with

interest 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."

C. The agency is to restore all leave, including annual and sick

leave, and leave without pay, which complainant used because of the

harassment. The agency will also provide complainant with fair and

accurate performance appraisals for any periods not already covered in

the personnel record.

D. The agency shall post the attached notice as ordered below.

E. The agency shall provide in-depth disability discrimination training

for the all responsible management officials. The purpose of the training

shall be to provide the officials with sufficient information so that

similar violations will not occur.

F. 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

The agency is ORDERED to post at its Sepulveda, California 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.

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).

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:

April 14, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On 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.

2Because of the change in our regulations, the AJ is now responsible for

conducting a supplementary hearing/investigation in order to determine

the specific award amount of compensatory damages and attorney's fees

to be paid by the agency.