01991111
04-24-2000
Frances M. Pruitt, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Frances M. Pruitt v. Department of Veterans Affairs
01991111
April 24, 2000
Frances M. Pruitt, )
Complainant, )
)
v. ) Appeal No. 01991111
) Agency Nos. 92-1087/1088
Togo D. West, Jr., ) Hearing Nos. 320-95-8356X/8357X
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning her equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The appeal is accepted by
the Commission in accordance with the provisions of 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).<1>
ISSUES PRESENTED
The issues presented are whether the agency discriminated against
complainant based on race (Black), age (59), and reprisal (prior protected
activity) when: (1) on March 20, 1990, she received an unsatisfactory
proficiency report, which complainant alleged was part of a pattern
of harassment which commenced in January 1989; and (2) complainant's
request for training was denied as to two of three requested classes,
which complainant alleged was also part of the pattern of continuing
harassment.
BACKGROUND
Complainant, then a Staff Nurse, GS-9, at the agency's Denver, Colorado,
Medical Center, filed two formal EEO complaints alleging that the agency
discriminated against her as delineated in the above-entitled statement,
"Issue Presented."<2> The agency conducted an investigation, provided
complainant with a copy of the investigative report, and advised
complainant of her right to request either a hearing before an EEOC
administrative judge (AJ) or an immediate final agency decision (FAD).
Complainant requested a hearing, which was held in April 1996. In March
1998, the hearing was reconvened to correct possible reversible error.<3>
Thereafter, the AJ issued a recommended decision<4> (RD) finding that
the agency discriminated against complainant based on race with regard to
Issue 1, and based on race and reprisal with regard to Issue 2. The AJ
found that the incidents cited by complainant were part of an on-going
pattern of harassment. On October 23, 1998, the agency modified the
finding in the RD and issued a FAD finding no discrimination on any basis
as to both issues. It is from this decision that complainant now appeals.
ANALYSIS AND FINDINGS
The Commission first notes that a question exists as to whether the agency
issued its FAD in a timely fashion. The agency maintains that it received
the AJ's decision on August 25, 1998, and issued its FAD 59 days later, on
October 23, 1998. Complainant argues, however, that the agency received
the AJ's decision on August 21, 1998, and issued its FAD 63 days later, or
three days past the 60 days allowed by the Commission's regulations, and
therefore is bound by the AJ's decision. See 64 Fed. Reg. 37644, 37,657
(to be codified as 29 C.F.R. � 1614.109(i)). The record contains a copy
of the certified-mail return-receipt for the AJ decision, provided by the
agency, on which the date received is clearly stamped August 21, 1998.
The return-receipt is not signed, but bears the hand-written notation
"OOD," which elsewhere in the record refers to the addressee, the Director
of the Office of Employment Discrimination Complaint Adjudication.
Notwithstanding the presence in the record of a copy of the AJ's letter
of transmittal date-stamped by the agency as being received on August
25, 1998, the Commission is persuaded that the agency received the AJ's
decision on August 21, 1998. The Commission accordingly finds that the
agency's FAD was issued more than 60 days after it received the AJ's
decision, and that the agency therefore is bound by the AJ's decision.
The Commission notes that even if the agency's FAD had been timely issued,
the outcome of this appeal would be the same. Pursuant to 64 Fed. Reg
37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405(a)), all
post-hearing factual findings by an Administrative Judge 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). Having reviewed the record, consisting of the complaint file,
the hearing transcript and exhibits, the parties' closing arguments,
and the parties' statements on appeal, the Commission concludes that,
in all material respects, the AJ's decision correctly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws, affording no basis to disturb the AJ's decision.
Finally, the Commission notes complainant's argument on appeal that
the AJ erred in not awarding her compensatory damages, in view of her
contention that the agency's discriminatory activity continued beyond
the dates identified by the AJ in acknowledging the accepted issues.
The only activity of the agency at issue herein is that which occurred
on and before March 8, 1991, well prior to the effective date of the
Civil Rights Act of 1991, which extended the availability of compensatory
damages to the federal-sector administrative process. See, e.g., Wallis
v. U.S. Postal Service, EEOC Appeal No. 01950510 (November 20, 1995).
Complainant's argument in this regard therefore is without merit.
However, the Commission will order the agency to amend the proficiency
report cited in Issue 1 and to provide the training cited in Issue 2 as
part of complainant's make-whole relief. See, e.g., Franks v. Bowman
Transportation Co., 424 U.S. 747, 764 (1976); Adesanya v. U.S. Postal
Service, 01933395 (July 21, 1994).
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the final agency decision.
ORDER
The agency is ORDERED to take the following remedial action:
(1) Within thirty (30) days of the date on which this decision becomes
final, the agency shall expunge from complainant's official records the
unsatisfactory proficiency report received by her on March 20, 1990.
(2) Within ninety (90) days of the date on which this decision becomes
final, the agency shall afford complainant the two training courses
which she was denied.
(3) The agency shall restore to complainant all annual leave and sick
leave used by complainant as a result of the agency's discrimination from
the date in September 1988 on which she came under the supervision of
the Head Nurse of the 8 South Ward through March 8, 1991, in accordance
with the instructions for calculation set forth below.
(4) Within ninety (90) days of the date on which this decision becomes
final, the agency shall provide EEO training to the individuals who
at the time of the events at issue herein were the Head Nurse of the
8 South Ward, the Head Nurse of the 7 South Ward, and the Psychiatric
Supervisor, in particular with regard to their obligations under Title VII
of the Civil Rights Act of 1964. Such training shall be provided without
regard to whether these individuals continue to occupy the aforementioned
positions, provided they are still employed by the agency in any capacity.
(5) The agency shall post a notice of the finding of discrimination in
accordance with the below-entitled paragraph, "Posting Order."
(6) The agency shall pay complainant's reasonable attorney fees and
costs in accordance with the below-entitled paragraph, "Attorney's Fees."
The agency shall determine the appropriate amount of leave restoration
due complainant 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 leave due, and shall provide
all relevant information requested by the agency. If there is a dispute
regarding the exact amount of leave due, the agency shall restore 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 of leave 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."
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 leave restoration due complainant, including
evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Denver, Colorado, 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.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (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 24, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Veterans Affairs, Denver, Colorado, Medical Center
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The Department of Veterans Affairs, Denver, Colorado, Medical Center
has been found to have discriminated against the individual affected by
the Commission's finding. The Department of Veterans Affairs, Denver,
Colorado, Medical Center shall expunge certain negative information
from the affected individual's official records, restore to the
affected individual annual and sick leave used on account of the
agency's discriminatory actions, provide the affected individual with
specified training courses, pay the affected individual's reasonable
attorney fees and costs, and provide EEO training to the appropriate
supervisory personnel. The Department of Veterans Affairs, Denver,
Colorado, Medical Center will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The Department of Veterans Affairs, Denver, Colorado, Medical Center
will not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
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.
2Complainant also filed a third complaint, which was dismissed by
the agency. Complainant did not appeal the dismissal of that complaint.
3It is noted that by the time the hearing reconvened, the AJ who had
originally heard the case was no longer employed by the EEOC. Therefore,
a second AJ heard the case during the March 1998 portion of the hearing,
and thereafter issued the decision on the entire matter.
4At the time the AJ issued his decision, the Commission's regulations
provided that the agency could accept, reject, or modify that decision.
Under the Commission's revised regulations, see note 1, supra, an AJ's
decision is binding on both parties, subject to the right of appeal to
the Commission. See 64 Fed. Reg. 37,644, 37,675 (1999) (to be codified
at 29 C.F.R. � 1614.110(a)).