01993815_r
06-27-2001
Gregory S. Akers, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Gregory S. Akers v. Department of Transportation
01993815
June 27, 2001
.
Gregory S. Akers,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01993815
Agency No. 5-94-5282; 5-95-5127
Hearing No. 310-96-5357; 310-96-5358
DECISION
The instant appeal alleges noncompliance with an agency decision dated
March 21, 1997.
An Administrative Judge, after a hearing on December 4, 1996, recommended
a finding of discrimination on the basis of sex (male) when complainant
was subjected to a continuing hostile environment. The Administrative
Judge recommended a finding of no discrimination (1) on the bases of
race (White), sex, and religion (Atheist) when complainant was not
assigned to administrative duties while taking prohibited medication
which disqualified him from performing his assigned duties and forced
him to take sick leave; (2) on the basis of sex, when complainant was
not permitted to work on May 29, 1994, as scheduled; (3) on the bases of
religion and sex, when complainant's complaints were ignored and he was
discouraged from filing EEO complaints; (4) on the bases of religion,
sex and reprisal, when complainant was reassigned to the DRW Tracon;
and (5) on the bases of religion, sex, and reprisal, when he received
unfair performance appraisals when his security clearance was revoked.
On March 21, 1997, the agency issued a decision that incorporated the
Administrative Judge's recommendations. The agency, however, determined
that the recommended remedy was insufficient to eliminate all vestiges
of discrimination found and provided an additional remedy, specifically,
compensatory damages. In order to award compensatory damages, the agency
requested that the complainant submit appropriate documentation as to
the amount suffered. After receiving complainant's documentation,
the agency issued a decision on March 24, 1999, awarding pecuniary
and non-pecuniary compensatory damages, and denied reimbursement of
sick leave. Complainant, by letter dated March 30, 1999, argues that
the agency has not complied with any of the corrective actions awarded
in the March 21, 1997 decision. The agency in reply, by letter dated
April 8, 1999, states that it did comply with the terms of the decision.
Therefore, the Commission will treat the March 30, 1999 letter as a claim
of noncompliance with the agency's March 21, 1997 decision, and we deem
the agency's April 8, 1999 letter as a final decision finding compliance.
The March 21, 1997 agency decision provided the following remedy:
The FAA will take immediate steps necessary to ensure that any harassing
activity focused on you ceases. This includes reassigning employees,
counseling and disciplinary action, as appropriate. You should be
transferred to an ATA position outside of the region, at your option.
You are entitled to receive compensatory damages to the amount that you
can establish through appropriate documentation. For requests for damages
based on non-pecuniary losses, you should submit objective evidence,
such as notarized personal statements concerning your emotional distress
as a result of the discriminatory conduct and notarized statements from
witnesses, including family members, friends, health care providers, and
other counselors (including clergy), addressing, for example, the outward
manifestations or physical or behavioral manifestations of the distress,
information on the duration of the distress, and examples of how the
distress affected you on a day to day basis, both on and off the job.
In addition, you should submit evidence to establish a causal connection
between the discriminatory action and the resulting injury. A request
for compensatory damages related to emotional pain and suffering may
permit DOT to seek personal and sensitive information from you in order
to determine whether the injury is linked solely, partially, or not at
all to the discriminatory conduct.
For requests for compensatory damages based on quantifiable losses,
you must also submit objective documentation supporting your claim and
demonstrating a causal connection between the harm that you suffered and
the FAA's discriminatory action. You had a duty to mitigate damages
and may not recover damages for any harm that could have been avoided
or minimized with reasonable effort. Accordingly, the evidence which
you submit should also include documentation concerning your efforts to
mitigate your damages. For example, with regard to medical or psychiatric
expenses that you may have incurred, you should submit copies of documents
indicating your actual out-of-pocket expenses related to those injuries
caused by discrimination. These documents should be on the official
letterhead of the company or professional who provided the services.
You should also submit documentation indicating what portion of the
expenses were covered by insurance.
Within 45 days from receipt of this decision, you must submit any
documentation in support of your claim for compensatory damages to:
[Person A], Regional Director, Departmental Office of Civil Rights,
Fort Worth Regional Office, S-345, 2601 Meacham Boulevard, Room 687,
Fort Worth, Texas 76193. Your failure to file this submission within
the above stated time period will negatively impact upon the sum of your
award. The DOCR will transmit this additional documentation to the FAA.
The FAA will have 45 days from its receipt of your evidence to proffer
rebuttal information. A final agency decision (FAD) containing the exact
amount of damages to be awarded will be issued within 30 days from the
expiration of the 45 day period in which the FAA may make the submission.
The FAA will provide this office with an assurance, with a copy to you,
that it will cease from engaging in the unlawful employment practices
cited in this final agency decision. This assurance must be received
within 30 days of the date of this letter.
The FAA will post the attached notice in a conspicuous place in
Dallas/Fort Worth Air Traffic Control Tower and the Fort Worth Air Route
Traffic Control Tower and the Fort Worth Air Route Traffic Control Center,
for 30 days, pursuant to 29 C.F.R. � 1614.501(a).
In order to prevent the recurrence of any discriminatory actions, the FAA
will initiate EEO sensitivity training for its supervisors, managers,
and all staff employed at the DRW ATCT and the Fort Worth ARTCC within
90 days of receipt of this letter. Such training will cover the rights
of employees to be free from discrimination under Title VII and similar
Federal statutes and the obligations of management and staff to insure
that discrimination and/or retaliation against such employees does
not occur.
The FAA should develop and disseminate a policy stating that harassment
based on sex will not be tolerated. In addition, the FAA should place
employees on notice that employees who engage in illegal harassment
will be subject to disciplinary actions and, to the extent practical,
indicate the discipline to which they will be subjected.
The FAA will submit to the DOCR, Forth Worth Regional Office, a report
regarding its compliance with the corrective action set forth in this
final agency decision. This report will be submitted within 90 days
of receipt of this final agency decision. The report will include
the following:
Documentation demonstrating the FAA's response to your request for
reassignment to a similar position, outside of the Southwest region,
including documentation to show that the FAA processed the transfer.
Within 60 days of the completion of your transfer, the FAA will submit
documentation to demonstrate that you have been reimbursed for any
expenses incurred in the process;
Documentation demonstrating the FAA's discipline, counseling, and/or
assignment of employees who have harassed you;
A copy of the sign-in sheet for those individuals attending the EEO
sensitivity training, a copy of the agenda from the training, a copy of
the policy regarding harassment based on sex, and a copy of the notice
to employees addressing the types of disciplinary actions which may be
taken against employees who engage in illegal harassment; and
Affirmation that a copy of the notice posted in compliance with #4 above,
was displayed. Please provide the dates and location of the posted notice.
Pursuant to 29 C.F.R. � 1614.504(a), �[i]f the complainant believes that
the agency has failed to comply with the terms of a settlement agreement
or decision, the complainant shall notify the EEO Director, in writing,
of the alleged noncompliance within 30 days of when the complainant
knew or should have known of the alleged noncompliance.� With regard
to provisions 1 and 3 - 7 of the March 21, 1997 agency decision, we
find that complainant has not shown that he notified the EEO Director
of noncompliance. There is no indication that complainant ever raised
the issue of noncompliance until his appeal two years later. All of
the relief ordered in provisions 1 and 3 - 7 should have been provided
more than a year before the instant appeal. Therefore, complainant's
claim that the agency was not in compliance with provisions 1 and 3 -
7 of the March 21, 1997 agency decision is untimely. Because complainant
failed to timely raise the claim of non-compliance of provisions 1 and 3
- 7, we find that complainant has failed to show that the agency did not
comply with provisions 1 and 3 - 7 of the March 21, 1997 agency decision.
Regarding provision 2 of the remedy in the March 21, 1997 agency decision,
the record shows that on March 24, 1999, the agency awarded complainant
$402.74 in pecuniary and $20,000 in non-pecuniary compensatory damages.
Complainant's claim for monetary reimbursement for 697 hours of sick leave
was denied. Complainant did not assert or submit evidence to show that
the calculation of compensatory damages award is erroneous. According
to a letter by the agency dated April 8, 1999, the agency had not made
any payments to complainant but asserted that it had until May 23,
1999 to comply. The agency has not submitted any proof of payment.
Therefore, the record is insufficient for the Commission to determine
whether the agency is in compliance with provision 2 of the remedy in the
March 21, 1997 agency decision. The agency is Ordered, as stated below,
to show proof of payment of the compensatory damages award.
The agency's decision finding that complainant failed to show that
the agency did not comply with provisions 1 and 3 - 7 of the agency's
March 21, 1997 decision is AFFIRMED. The agency's decision regarding
compliance with provision 2 (compensatory damages) of the agency's March
21, 1997 decision is VACATED and we REMAND the matter to the agency
for further processing in accordance with this decision and applicable
regulations.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to:
place into the record proof of payment of the compensatory damages
award; and
issue a new decision addressing whether it has complied with provision
2 of the agency's March 21, 1997 decision.
The agency shall provide a copy of the new decision regarding provision
2 to the Compliance Officer as referenced herein.
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 (M0900)
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
June 27, 2001
__________________
Date