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.