07A00003_r
04-17-2002
Deborah Carmon-Coleman, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Army & Air Force Exchange Service, Dallas, Texas), Agency.
Deborah Carmon-Coleman v. Department of Defense (Army and Air Force
Exchange Service)
07A00003
April 17, 2002
.
Deborah Carmon-Coleman,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service, Dallas, Texas),
Agency.
Appeal No. 07A00003
Agency No. 94-078
Hearing No. 310-98-5426X
DECISION
The agency issued a final action to complainant and filed an appeal
with this Commission (docketed as Appeal No. 07A00003) regarding the
decision of an EEOC Administrative Judge (AJ) on complainant's complaint
of unlawful employment discrimination brought pursuant to Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.<1> Complainant also filed a
timely appeal with this Commission regarding the agency's final action.
The Commission accepts both appeals pursuant to 29 C.F.R. � 1614.405,
and consolidates them herein for consideration.
In her complaint, complainant claims discrimination and harassment on
the bases of race (black), sex (female), and disability (post-operative
herniated cervical disc residuals or �neck condition�), culminating in
her constructive discharge on November 3, 1993.
For the reasons that follow, the Commission MODIFIES, in part, the
AJ's decision, and AFFIRMS in part, and REVERSES in part, the agency's
final action.
The record reveals that complainant, a Sales Area Manager at the
agency's Carswell Air Force Base Exchange in Fort Worth, Texas, worked
in the candy department until she sustained an on-the-job neck injury
requiring surgical repair. Upon complainant's return to work, the agency
transferred complainant to the men's department, which required less
lifting than the candy department, to accommodate her 10-pound lifting
restriction. Complainant successfully worked within her restrictions
in the men's department under Supervisor A. Supervisor A resigned in
August 1993, and was replaced by Supervisor B.
According to complainant, from the outset, Supervisor B created a
hostile work environment. In one of her claims, complainant contends
that Supervisor B improperly issued her a written reprimand regarding an
incident (failing to lock doors) which occurred prior to his arrival.
Furthermore, complainant claims harassment due to a hostile work
environment because Supervisor B generally and continuously treated
her in a hostile demeaning manner, and publically humiliated her on
many occasions. As evidence, complainant contends that Supervisor B
berated her in the presence of co-workers for responding to a �duress
alarm,� suggesting that she had no authority to do so. Complainant also
claims that on one occasion Supervisor B publically rebuked her so
harshly about a purportedly incomplete assignment that it resulted in a
customer complaint about him; and that on another occasion Supervisor B
cursed at her when she asked a work related question.<2> Complainant
states that she would go to the ladies' room and cry after such
incidents. Complainant additionally contends that Supervisor B, in the
presence of both co-workers and customers, asked her assistant whether
he should fire complainant, and when her assistant refused to respond,
Supervisor B asked the assistant if he �liked sucking on [complainant's]
gold tooth,� suggesting the two had engaged in sexual conduct. While not
made in her presence, complainant contends that she found this remark,
made to a subordinate in the presence of co-workers and customers, to be
particularly upsetting and damaging to her reputation. In addition to
this harsh treatment, complainant additionally avers that Supervisor B
continuously assigned her work outside of her physical limitations, and
that when complainant reminded him of her lifting restriction, Supervisor
B would threaten to send her back to the candy department or fire her,
and never gave her additional help despite her many requests. Under this
pressure, complainant avers that she frequently engaged in lifting which
exceeded her limitations, and exacerbated her neck condition.
Complainant contends that she became very upset upon learning of the
�gold tooth� remark, and because of the many other incidents, overall
harsh treatment by Supervisor B, and lack of an accommodation for her back
disability, she informed Supervisor B that she was quitting. Supervisor B
immediately sent complainant to personnel to process her resignation, and
refused to allow her to give two weeks notice or reconsider her decision.
After investigating her complaint, the agency transferred the case
to the AJ who conducted a hearing and issued a decision on September
15, 1999. While not undertaking a formal analysis, the AJ found that
complainant failed to establish a prima face case on the bases of race
or sex regarding any of her claims. However, using the applicable
legal standards, the AJ determined that complainant established a prima
facie case of disability discrimination. Nonetheless, the AJ then found
that complainant failed to prevail in her claim regarding the written
reprimand, finding that Supervisor B played no role in the decision.
Regarding the constructive discharge claim, the AJ determined that the
agency accommodated complainant's disability by transferring her to
the men's department, and that complainant, �with persistence� could
have obtained help completing those assignments which exceeded her
limitations. For these reasons, the AJ concluded that complainant failed
to prevail in her constructive discharge claim. Regarding complainant's
harassment claim, the AJ found that complainant prevailed in showing that
Supervisor B subjected her to a hostile work environment, finding the
�gold tooth� comment particularly offensive. The AJ awarded complainant
attorney's fees and compensatory damages of $3,000.00 (three thousand
dollars) for �the anxiety she suffered as a result of the demeaning and
discriminatory statement made by [Supervisor B].�
The agency's final action adopted the AJ's finding of no discrimination
regarding the reprimand claim and constructive discharge claim, but
indicated that it would appeal the AJ's harassment determination. In that
appeal, the agency argued that the AJ erred in finding that the �gold
tooth� comment alone constituted harassment, noting that this comment
was not even made in complainant's presence. The agency also avers the
AJ erred by failing to conduct a traditional prima facie case analysis
or an analysis of harassment under a hostile work environment theory.
Regarding the hostile work environment theory, the agency argues that the
AJ failed to consider the elements of the agency's affirmative defense,
arguing that it presented evidence of its �anti-sexual harassment policy
and EEO policy� for reporting harassment, but that the AJ ignored
this issue.
In her appeal, and response to the agency's appeal, complainant argues
that the AJ's finding of harassment was not based on the single �gold
tooth� remark as suggested by the agency, but instead on Supervisor
B's continuous and egregious harassment of complainant, as previously
set forth. Complainant also observes that the agency does not disclaim
that the conduct at issue occurred, and yet denies its liability for
discrimination. Complainant also repeats her arguments in support of
her claim of discrimination regarding the reprimand and constructive
discharge. Finally, complainant argues that she is entitled to more
than $3,000.00 in compensatory damages, noting that she suffered not
only emotional distress, but worsening of her neck pain.
In responding to complainant's appeal, the agency argues that complainant
merely repeats her previous arguments and fails to show error in the
AJ's decision on her reprimand claim and constructive discharge claim.
The agency then states that the AJ's determination regarding both of
these claims was supported by substantial evidence, and that the award of
$3,000.00 in compensatory damages was the proper amount assuming that the
complainant prevailed in her harassment claim, which the agency continues
to dispute. The agency also argues that the Commission should disregard
the additional evidence submitted on appeal by complainant because it
was available at the time of the hearing.
Analysis and Findings
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 discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
1. Race and sex discrimination claims.
After review, we find that while the AJ did not specifically set forth a
prima facie case analysis of complainant's claims regarding race and sex
discrimination, her findings nonetheless reflect that complainant failed
to show that others outside of her protected class were more favorably
treated by Supervisor B. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981). Furthermore, based on our de novo review of this
case, we concur with this determination, and find no discrimination or
harassment on the bases of race or sex.
2. Disability discrimination claim.
We also concur with the AJ's determination that complainant established a
prima facie case of disability discrimination. Specifically, we find that
the evidence demonstrates that complainant is a qualified individual with
a disability under the criteria of EEOC Regulation 29 C.F.R. � 1630.2,
and we note that the agency does not dispute this determination. We also
concur with the AJ's determination that complainant failed to prevail in
her claim of disability discrimination regarding the written reprimand,
finding no evidence of animus given that Supervisor B merely issued the
reprimand as instructed and otherwise played no role in this action.
3. Harassment claim: hostile work environment.
We further concur with the AJ's determination that complainant prevailed
in her harassment claim, on the basis of disability, and find that this
determination was not based on the �gold tooth� remark alone as argued
by the agency on appeal. Instead, we find that the AJ's determination
is supported by a record reflecting an on-going, pervasive, and severe
level of harassment targeted at complainant by Supervisor B. In this
regard, we find that while Supervisor B played no role in deciding
to issue complainant the written reprimand, he nonetheless treated
complainant in a disparaging manner when issuing it to her. The record
further shows that Supervisor B continuously berated complainant, and
frequently embarrassed her in the presence of co-workers and customers,
often doing so in an especially harsh derogatory manner, to include
yelling and cursing. We agree with the agency that the harassing effect
of the �gold tooth� remark is somewhat diminished by the fact that it was
not made in complainant's presence; however, it was nonetheless made
in the presence of co-workers, such that Supervisor B could reasonably
expect that it would be communicated to complainant, and complainant was,
in fact, very distraught upon learning of the remark.
In addition to embarrassing and berating complainant in the manner
described above, we find that Supervisor B harassed complainant by
requiring her to perform assignments beyond her lifting restriction,
and refusing to provide her with assistance in lifting heavy boxes and
other merchandise despite her multiple requests and his knowledge of
her lifting restriction. We note also the evidence of record shows that
Supervisor B threatened to send complainant back to the candy department,
requiring even heavier lifting. Based on this evidence, we conclude
that complainant established a prima facie case of harassment based on
a hostile working environment in accordance with the applicable legal
standards. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982);
EEOC Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC
Notice No. 915.002 (March 8, 1994).
4. Harassment claim: agency's liability.
Next, in assessing the agency's liability for this harassment, as
a threshold matter, we find that complainant has clearly shown that
the acts at issue were committed by a supervisor, i.e., Supervisor B.
An employer is subject to vicarious liability for unlawful harassment if
the harassment was "created by a supervisor with immediate ... authority
over the [complainant]." See Enforcement Guidance: Vicarious Liability
for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June
18, 1999) ("Vicarious Liability Guidance"), at 4 (citing Burlington
Industries, Inc., v. Ellerth, 524 U.S. 742 , 118 S.Ct. 2257, 2270 (1998),
and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93
(1998)).
However, as argued by the agency on appeal, where, as here, the harassment
does not result in a tangible employment action being taken against the
employee, the agency can make out an affirmative defense by demonstrating:
(a) that it exercised reasonable care to prevent and correct promptly
any harassing behavior; and (b) that complainant unreasonably failed to
take advantage of any preventive or corrective opportunities provided by
the agency or to avoid harm otherwise. See Burlington Industries, supra;
Faragher, supra; Vicarious Liability Guidance, at 12. Whether an employer
can prove the first element of that defense, i.e., that it exercised
reasonable care to prevent and correct promptly any harassing behavior,
depends on the circumstances of the particular situation. See Vicarious
Liability Guidance, at 15.
At a minimum, however, the employer must have a policy and complaint
procedure against the
harassment that contains the following elements: (1) a clear explanation
of what constitutes prohibited conduct; (2) assurances that employees
who bring complaints of harassment or provide information related to
such complaints will be protected against retaliation; (3) a clearly
described complaint process that provides possible avenues of complaint;
(4) assurance that the employer will protect the confidentiality of
harassment complaints to the extent possible; (5) a complaint process
that provides a prompt, thorough, and impartial investigation; and (6)
assurance that the employer will take immediate and appropriate corrective
action when it determines that harassment has occurred. Id. at 17.
Based on our review of the record, it is not apparent that, at the
time of the harassment, that the agency had a policy and complaint
procedure in place which contained these elements. The record contains
a memorandum, dated July 26, 1993, regarding EEO affirmative action,
which does not discuss workplace harassment, and an Equal Employment
Opportunity Procedures Manual which covers harassment in terms of EEO
processing, but does not contain the aforementioned elements. While
complainant's hearing testimony reflects that as a manager she received
EEO training, there is no evidence to suggest that it included information
on an anti-harassment policy and complaint procedure. We additionally
note complainant's hearing testimony indicating that the agency had no
posters displayed with EEO information, although an agency's posting
of the general EEO process is not sufficient to establish the first
element of its affirmative defense. We also find that the record does
not otherwise reflect that the agency provided its employees with a
clear explanation of what constitutes prohibited conduct, or otherwise
provided its employees with possible avenues of complaint, such that
we find that the agency failed to establish, disseminate, and enforce
an anti-harassment policy and complaint procedure, above and beyond the
EEO process enunciated in 29 C.F.R. Part 1614. See Vicarious Liability
Guidance at 15-28.
Therefore, based on our finding that the agency failed to satisfied
the above elements to establish an affirmative defense, we conclude
that the agency is liable for the harassment of complainant that
occurred by the actions of Supervisor B. Accordingly, we REVERSE the
agency's determination of no discrimination as to complainant's claim
of harassment.
5. Constructive Discharge Claim.
The central question in a constructive discharge case is whether the
employer, through its unlawful
discriminatory behavior, made the employee's working conditions so
difficult that any reasonable person in the employee's position would
feel compelled to resign. (10th Cir. 1982). The Commission has established
three elements which a complainant must prove to substantiate a claim of
constructive discharge: (1) a reasonable person in the complainant's
position would have found the working conditions intolerable; (2)
conduct that constituted discrimination against the complainant created
the intolerable working conditions; and (3) the complainant's involuntary
resignation resulted from the intolerable working conditions. See Walch
v. Department of Justice, EEOC Request No. 05940688 (April 13, 1995).
As noted above, the AJ determined that complainant failed to prevail in
her constructive discharge claim finding that the agency accommodated
her back disability when its transferred her from the candy department
to the men's department, and that �with persistence� complainant
could have obtained help with lifting that exceeded her limitations.
However, we find that this analysis fails to take into consideration the
severity of complainant's hostile work environment, where Supervisor B
continuously and publically humiliated complainant, and not only refused
to provide complainant with a reasonable accommodation, via either lighter
lifting assignments or assistance with heavy lifting assignments, but
threatened to transfer complainant to a department where she would not
be able to continue to work due to the routine heavy lifting required.
Moreover, our review of the record conveys that complainant did, in fact,
�persistently� remind Supervisor B of her lifting restriction, and ask
for assistance, but Supervisor B declined to do either, instead responding
with criticism of complainant's work or threatening to transfer her to
the candy department. Moreover, we note that complainant's assistant
provided affidavit testimony that he overheard Supervisor B remark in a
conversation concerning poor leader performance of an identified co-worker
of complainant: �Just apply enough pressure and she'll eventually quit.�
Furthermore, review of the record reflects that when complainant became
distraught on November 3, 1993, informed Supervisor B of her decision
to resign because of his treatment, and presented him with the completed
personnel forms, Supervisor B told her she used the wrong form, and asked
her if she was resigning effective today. According to complainant, based
on Supervisor B's demeanor, she felt it was useless to say anything other
than her resignation was effective that same day. Complainant testifies
that Supervisor B then sent her to the personnel office to complete the
correct form, and that a completed form was awaiting her signature when
she arrived, apparently because Supervisor B had called while complainant
was in transit to the personnel office. According to the affidavit
testimony of the personnel officer, when complainant arrived, she was very
upset, and that she attempted to calm complainant and encourage her to
reconsider her decision. Complainant was receptive to this suggestion,
so the personnel officer went to speak to Supervisor B to see if the
situation could be resolved. However, the personnel officer indicates
that Supervisor B responded that complainant �quit and that's it� and
instructed her to process the resignation effective that same day,
and not to allow complainant to give the customary two weeks notice,
fearing she might sabotage the operation due to her knowledge of security.
We note that Supervisor B provided no reason regarding his purported
belief that complainant might engage in �sabotage.�
After careful consideration, viewing all of the circumstances presented
here, we find that the same discriminatory hostile work environment
created by Supervisor B was sufficiently severe as to result in
objectively intolerable working conditions, and that complainant
reasonably felt compelled to resign because of these conditions. We find
further evidence that Supervisor B created a hostile work environment
with the purpose of forcing complainant to quit based on his efforts
to have complainant's resignation processed on-the-spot, giving her no
recourse to change her mind.
Accordingly, we MODIFY the AJ's determination and REVERSE the agency's
determination, and instead find that complainant prevails in her claim
of constructive discharge. We further determine that complainant should
be made whole for this injury, and we ORDER the agency to reinstate
complainant with back pay and benefits, as more fully set out below.
6. Compensatory damages.
Compensatory damages do not include back pay, interest on back pay, or
any other type of equitable relief authorized by Title VII. To receive
an award of compensatory damages, a complainant must demonstrate that
she has been harmed as a result of the agency's discriminatory action;
the extent, nature and severity of the harm; and the duration or expected
duration of the harm. See Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (December 11, 1995); EEOC's Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992).
A complainant is required to provide objective evidence that will allow
an agency to assess the merits of her request for damages. See Carle
v. Department of the Navy, EEOC Appeal No.01922369 (January 5, 1993).
Pecuniary losses are out-of pocket losses that occurred prior to the date
of resolution of the damage claim and those out-of pocket losses that
are likely to occur after conciliation of the claim. Non-pecuniary
losses are losses that are not subject to precise quantification,
i.e., emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character
and reputation, injury to credit standing, and loss of health. See EEOC
Notice No. 915.002 at 10 (July 14, 1992).
The Commission applies the principle that "a tortfeasor takes its victims
as it finds them." See Wallis v. United States Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy
Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However,
the Commission also applies two exceptions to this general rule. First,
when a complainant has a pre-existing condition, the agency is liable
only for the additional harm or aggravation caused by the discrimination.
Second, if the complainant's pre-existing condition inevitably would have
worsened, the agency is entitled to a reduction in damages reflecting
the extent to which the condition would have worsened even absent the
discrimination; the burden of proof is on the agency to establish
the extent of this entitlement. Wallis, EEOC Appeal No. 01950510
(citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay
v. United States Postal Service, EEOC Appeal No. 01942985 (April 29,
1997). The Commission notes, therefore, that complainant is entitled
to recover damages only for injury, or additional injury, caused by
the discrimination. See Terrell v. Department of Housing and Urban
Development, EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice
No. N 915.002 at 12.
After establishing entitlement to an award of compensatory damages,
there is no precise formula for determining the amount of damages for
non-pecuniary losses, except that the award should reflect the nature and
severity of the harm and the duration or expected duration of the harm.
See Loving v. Department of the Treasury, EEOC Appeal No. 01955789
(August 29, 1997). It should likewise be consistent with amounts
awarded in similar cases. See Hogeland v. Department of Agriculture,
EEOC Appeal No. 01976440 (June 14, 1999). Moreover, we point out that
non-pecuniary compensatory damages are designed to remedy a harm and
not to punish the agency for its discriminatory actions. Furthermore,
compensatory damages should not be motivated by passion or prejudice or
"monstrously excessive" standing alone but should be consistent with
the amounts awarded in similar cases. See Ward-Jenkins v. Department
of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).
The Commission has held that evidence from a health care provider is
not a mandatory prerequisite for recovery of compensatory damages.
See Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). Courts also have held that "expert testimony
ordinarily is not required to ground money damages for mental anguish
or emotional distress." See Wulf v. City of Wichita, 883 F.2d 842,
875 (10th Cir. 1989). A complainant's own testimony, along with the
circumstances of a particular case, can suffice to sustain his/her
burden in this regard. Nonetheless, the absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases.
See Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
On appeal, in requesting additional compensatory damages, complainant
sets forth evidence and computations in requesting back pay, lost pay
increases, health insurance differential and attorney's fees. However,
as set forth above, none of these damages are compensatory damages.
Furthermore, in reviewing the record, we find no evidence, such as
receipts for medical expenses, upon which to base an award of pecuniary
damages. However, based on complainant's testimony of the level of her
emotional distress during the three-month period she worked for Supervisor
B, as well as the emotional distress associated with her constructive
discharge, and the increased pain and physical limitations associated
with the exacerbation of her neck condition, we find that complainant
is entitled to more than the $3,000.00 in compensatory damages awarded
by the AJ.
In assessing the amount of damages here, we find that complainant contends
that she was extremely upset at Supervisor's B treatment of her, and
that she went into the ladies room to cry after the incidents of public
humiliation. Complainant also avers that she was extremely distraught on
the day of her resignation, and that Supervisor B's quick dispatching of
her only added to her emotional distress. We also note that complainant
claims that she worked for the agency for 13 years, and worked herself
up from a stock clerk to a manager, such that constructive discharge
was particularly distressing. However, we find that complainant does
not claim that her distress interfered with her personal relationships,
or that this stress was so severe that she developed somatic symptoms,
such as digestive problems, or that she required counseling. Regarding
the increase in her neck pain and dysfunction, we find that complainant
claims that because of the lifting Supervisor B required her to do, she
suffered two additional disc protrusions, and may need additional surgery,
and that she is fearful and depressed in anticipating this surgery.
Complainant also testified that her neck pain and dysfunction prevents
her from playing with her grandchildren. While complainant presents
no medical evidence to show that the claimed exacerbation of her back
disorder is the result of the heavy lifting Supervisor B required her
to do, we also find that the agency does not challenge this contention.
We note that the Commission has awarded compensatory damages in cases
somewhat similar to
complainant's case in terms of the harm sustained. See, e.g. Sinnott
v. Department of Defense, EEOC No. 01952872 (September 19, 1996)
($20,000.00 awarded in sexual harassment case spanning 6-month period);
April v. Department of Agriculture, EEOC Appeal No. 01963775 (June 5,
1997) (ordering an award of $21,971.90 in pecuniary and non-pecuniary
damages for emotional suffering where the complainant's disability was
significantly exacerbated as a result of the agency's actions); Sellers
v. Department of Veteran Affairs, EEOC Appeal No. 01964005 (October 3,
2000) (awarding $13,000 in non-pecuniary damages in a case in which
complainant demonstrated that she suffered additional physical and
emotional problems which were the result of discrimination based on
her disability).
Based on the foregoing, and considering the nature and severity of the
emotional and physical harm to the complainant, and the three-month period
of the harassment, we find that complainant is entitled to an award of
non-pecuniary damages in the amount of $15,000.00, and we MODIFY the
AJ's award accordingly.
After a careful review of the record, the Commission AFFIRMS the AJ and
agency's determination of no discrimination on the basis of race or sex,
and no discrimination on the basis of disability regarding complainant's
written reprimand claim. However, we concur with the AJ's determination
of disability based harassment due to a hostile work environment, and
we REVERSE the agency's finding to the contrary. Finally, we MODIFY
the AJ's determination regarding complainant's constructive discharge
claim, and REVERSE the agency's determination that complainant failed to
prevail in this claim. As make whole relief for this discrimination,
we award complainant $15,000.00 in compensatory damages, and we REMAND
this case to the agency to take this action, as well as the additional
remedial actions set forth in the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
1. Within 45 (forty-five) calendar days of the date of this decision,
the agency shall pay complainant $15,000.00 in non-pecuniary compensatory
damages.
2. The agency shall reinstate complainant to her position, or a
comparable position, together with back pay and benefits (to include
health insurance benefits), including any subsequent step and grade
increases which complainant would have received, retroactive to the date
of complainant's constructive discharge. The agency shall provided
complainant with reasonable accommodation for her neck disability,
and shall not place complainant under the supervision of Supervisor B.
Should complainant decline the offer of reinstatement, her entitlement
to back pay and benefits shall cease as of the date of declination.
Complainant shall be afforded a minimum of ten (10) business days to
decide whether to accept the offer.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 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."
3. The agency shall provide sixteen (16) hours of training in the
obligations and duties imposed by the Rehabilitation Act to all the
managerial officials responsible for agency actions in this case.
4. The agency shall post a notice at its facility in Dallas, Texas,
as more fully specified below in the posting order.
5. The agency shall pay complainant attorney's fees, including fees
associated with this appeal, as more fully specified below in the
attorney's fees order.
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 calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Carswell Air Force Base Exchange in
Fort Worth, Texas 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 17, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The 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.
2�I'll tell you what the f--k to do with them, promote them and do
whatever it takes to get them out of here.�