07A20054
03-17-2003
Demetrius O. Bowman, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Demetrius O. Bowman v. Department of Commerce
07A20054
March 17, 2003
.
Demetrius O. Bowman,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 07A20054
Agency Nos. 98-64-10037; 99-64-00513
Hearing No. 110-AO-8044X
DECISION
On May 11, 2001, an administrative judge (�AJ�) of the U.S. Equal
Employment Opportunity Commission (�EEOC� or �the Commission�) issued
a decision finding that the agency had violated Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
by retaliating against complainant when it disclosed information about
complainant's prior EEO activity to another agency (Agency X) where
complainant was seeking employment.<1> The AJ conducted a supplemental
hearing on the issue of compensatory damages, and on September 20, 2001,
he issued a supplemental bench decision awarding complainant $20,000.00 in
non-pecuniary damages. The AJ's written decision contained a Certificate
of Service verifying that the AJ had mailed a copy of the decisions,
transcripts, files and records on November 2, 2001. Under relevant EEOC
regulations, the agency had 40 days to issue a final order notifying
complainant whether the agency would fully implement the AJ's decision.
See 29 C.F.R. � 1614.110(a).
On December 27, 2001 complainant filed an appeal to this Commission
asserting that the agency had failed to timely issue a final order.
On January 23, 2002, however, the agency issued a final order implementing
the AJ's decision, with modification. The agency simultaneously filed an
appeal with the Commission on January 23, 2002, finding no retaliation as
to complainant's application for employment with Agency X, and otherwise
adopting the AJ's findings of no discrimination. The agency explained in
its appeal that it did not receive the AJ's decision until December 18,
2001, and that therefore, the issuance of the final order was timely.<2>
On January 31, 2002, complainant appealed the agency's final order to
the Commission.
Generally, where certified mail/return receipt is not used by the AJ,
the agency is deemed to have received the decision five days after it
was mailed. See EEO-MD- 110, at 9-2 (stipulating that �[i]f service of
the [AJ's] decision was by mail without the use of certified mail/return
receipt, the agency may add five days to the date that the final action
is due�). Due to the special circumstances involving the anthrax scare,
however, we find credible the agency's assertion that it did not receive
the AJ's decision until December 18, 2001. Therefore, the agency's
January 23, 2002 final order was timely issued, and its appeal was
timely filed.
On appeal, complainant asks the Commission to reverse the agency's finding
of no retaliation as to the disclosure of complainant's prior EEO activity
to Agency X.<3> In its appeal, the agency contends that the record does
not contain substantial evidence to warrant a finding of retaliation.
The agency additionally contends that the AJ committed error by changing
his interpretation of the adverse action at issue after both the liability
and damages hearings were concluded. The agency further contends that
complainant failed to demonstrate an entitlement to compensatory damages,
or alternatively, if damages are warranted, the AJ's award is grossly
excessive. The agency requests that we affirm its final order.
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). To prevail in a disparate treatment claim
such as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). The allocation of burdens and order of presentation of
proof in a Title VII case alleging disparate treatment discrimination is
a three step procedure: complainant has the initial burden of proving,
by a preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Accordingly, for complainant to prevail, he has the initial burden
of presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in
a protected activity; (2) the agency was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment
by the agency; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000). In the instant case,
the record indicates that complainant has established a prima facie case
of retaliation.
We now turn to the agency to articulate a legitimate, nondiscriminatory
reason for its action. Complainant's first-level supervisor (S1) asserts
that in the course of conversation with an official from Agency X,
he was asked if he was aware of complainant filing an EEO complaint.
See May 11, 2001 Hearing Transcript (HT2) at 92. S1 asserts that
he responded that he was not certain whether complainant had filed
a complaint, but that he understood that complainant was considering
doing so. Id. S1 additionally stated that in retrospect, he realizes he
should not have answered the question at all. Id. S1 explains that he
answered the question because of his �inexperience� in dealing with such
matters, and because the question caught him �off guard� Id., at 92-3.
We are cognizant that the agency's burden to articulate a legitimate
nondiscriminatory reason for its actions is not an onerous one. In the
case at hand, however, the Commission finds that the agency has failed to
set forth, with sufficient clarity, reasons for disclosing information
about complainant's prior EEO activity such that complainant has been
given a full and fair opportunity to demonstrate that those reasons
are pretext. See Parker v. United States Postal Service, EEOC Request
No. 05900110 (April 30, 1990); Lorenzo v. Department of Defense, EEOC
Request No. 05950931 (November 6, 1997). The agency has therefore failed
to provide an articulation of its reasons for its action sufficient to
overcome complainant's prima facie case of reprisal. See Prevo v. Federal
Deposit Insurance Corporation, EEOC Appeal No. 01972832 (March 10, 2000).
Accordingly, we find that AJ's finding of retaliation as to this issue
is supported by substantial evidence in the record.
Compensatory Damages
During the hearing on compensatory damages, complainant requested
$75,000.00 in non-pecuniary damages. After considering the hearing
transcript, the record of investigation, complainant's response to Notice
of Summary Judgment, complainant's declaration, and complainant's
deposition, the AJ determined that $20,000.00 was appropriate.
The AJ asserted that the award �takes into account the severity of
[complainant's] mental and physical condition that he suffered as a
result of his not obtaining the [position with Agency X].� AJ Decision
on Compensatory Damages, at 21. In its final order, the agency did not
award compensatory damages to complainant.
We begin by noting that the alleged retaliatory action was clearly
defined by both parties, throughout the record, as dealing solely with
the agency's improper disclosure of information about complainant's prior
EEO activity to Agency X. See ROI, at Tab 1. The evidence of record
fails to establish, however, that the unlawful disclosure of EEO-related
information was a factor in complainant's non-selection by Agency X.
In so finding, we note the statement of Agency X's Regional Inspector
General for Audits that, while complainant was a strong candidate,
he was �beat out by the competition.� HT2, at 130. Accordingly, the
AJ erred in awarding nonpecuniary damages for complainant's pain and
suffering resulting from his nonselection for the position with Agency X.
A proper award of damages will take into account the duration, nature
and severity of the harm suffered by complainant solely as a result of
the improper disclosure regarding complainant's EEO activity.
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the CRA,
codified as 42 U.S.C. � 1981a, authorizes an award of compensatory damages
as part of the �make whole� relief for intentional discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in Enforcement
Guidance: Compensatory and Punitive Damages Available Under � 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992)
(Guidance). Briefly stated, the complainant must submit evidence to
show that the agency's discriminatory conduct directly or proximately
caused the losses for which damages are sought. Id., at 11-12, 14;
Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994) aff'd, EEOC Request No. 05940927 (December 11, 1995). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to the complainant and the
extent to which other factors may have played a part. See Guidance
at 11-12. The amount of non-pecuniary damages should also reflect the
nature and severity of the harm to complainant, and the duration or
expected duration of the harm. Id., at 14.
In Carle v. Department of the Navy, the Commission explained that
evidence of non-pecuniary damages could include a statement by the
complainant explaining how he was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993). Statements from others,
including family members, friends, and health care providers could
address the outward manifestations of the impact of the discrimination on
the complainant. Id. The complainant could also submit documentation
of medical or psychiatric treatment related to the effects of the
discrimination. Id. Non-pecuniary damages must be limited to the sums
necessary to compensate the injured party for the actual harm and should
take into account the severity of the harm and the length of time the
injured party has suffered from the harm. Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
In the hearing on damages, complainant testified that as a result
of learning that someone had disclosed his EEO activity to Agency X,
he was �very upset.� Transcript of Hearing on Damages (HD), at 4-5.
Much of complainant's additional testimony concerns the harm that he
claims he suffered as a result of the nonselection. A review of the
transcript reveals that other individuals who have known complainant for
several years testified that they did not observe any negative change in
complainant immediately subsequent to the retaliatory action at issue.
Complainant has set forth insufficient evidence to support an award of
compensatory damages.
We concur with the AJ's finding of retaliation regarding the disclosure
of EEO-related information to Agency X. The Commission REVERSES the
portion of the agency's final action of January 23, 2002 concerning
the disclosure issue, and directs the agency to take remedial action in
accordance with this decision and the orders below.
ORDER
To the extent that it has not already done so, within 60 days from the
date this decision becomes final, the agency is ordered to provide EEO
training to all management officials at the Atlanta Regional Office,
Office of the Inspector General, regarding their obligations pursuant
to Title VII, not to retaliate against employees, with emphasis on
how management should respond to questions about employees' prior EEO
activity when providing references.
POSTING ORDER (G0900)
The agency is ordered to post at its Atlanta Regional Audit Office 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 (KO501)
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 (S0900)
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. 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
March 17, 2003
__________________
Date
1 The AJ found no discrimination as to the additional claims that
complainant raised.
2 The agency specifically states: �[Complainant's] date of receipt is
not a reliable indicator of when we received or should have received
the case materials. In the fall of 2001, anthrax was discovered at
the Brentwood postal facility that processes the Agency's mail and we
received no mail delivery for several weeks.�
3 Complainant does not dispute the findings of no discrimination as to
the other claims that he raised in his complaint.