05990302
07-21-2000
Jane G. Mayo, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Jane G. Mayo v. Internal Revenue Service
05990302
July 21, 2000
Jane G. Mayo, )
Complainant, ) Request No. 05990302
) Appeal No. 01973399
v. ) Agency No. 95-2309
) Hearing No. 360-96-8654X
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
____________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On January 12, 1999, the Department of the Treasury (agency) timely
initiated a request to the Equal Employment Opportunity Commission (the
Commission) to reconsider the decision in Jane G. Mayo v. Department of
the Treasury, EEOC Appeal No. 01973399 (December 10, 1998).<1> EEOC
regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.405(b)). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Id. For the reasons set forth herein, the agency's request
is denied.
In the previous decision, the Commission reversed in part the final agency
decision (FAD), finding discrimination based on reprisal, as previously
determined by the EEOC Administrative Judge (AJ). The AJ had found
that the selecting official (SO) had retaliated against complainant by
remarking to a ranking official (RO-1) that complainant was responsible
for an order to re-rank the candidates for a position. However, the
AJ further found that RO-1 had then generously scored complainant's
application; nonetheless, she failed to qualify for the Best Qualified
List (BQL). Accordingly, the Commission restricted remedial action to
an order that the agency conduct anti-discrimination training for the
SO, post an anti- discrimination notice, and pay attorney's fees for
complainant.
On request for reconsideration, the agency argues that the AJ made an
erroneous interpretation of material fact when she concluded that the SO's
remark to RO-1 constituted an act of discrimination based on reprisal.
Rather, the agency contends that the only logical conclusion to be
drawn is that the SO made the remark to ensure that RO-1 understood
how important it was to give the complainant the benefit of every
doubt in the re-ranking. In their brief opposing the agency request
for reconsideration, complainant's attorneys make the following points.
The SO admitted at the hearing that she was �bothered� and �disappointed�
by complainant's protected EEO activity. After learning of this activity,
the SO immediately revealed to RO-1 that it was the complainant's EEO
activity that forced all the applications to be re-ranked, even though
complainant's EEO activity was supposed to remain confidential.
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 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). Furthermore, 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).
We determine that the AJ's finding of retaliatory intent is supported by
such relevant evidence and do not agree that this inferred retaliatory
motivation is disproved by the agency's alternative interpretation of
events. Accordingly, the agency failed to demonstrate that the appellate
decision involved a clearly erroneous interpretation of material fact
under 29 C.F.R. � 1614.405(b), and we therefore deny the agency's request
for reconsideration.
Inasmuch as a retaliatory motive by the SO was shown to exist, we also
find that the complainant must be given an opportunity to submit evidence
to establish her claim to compensatory damages. Although the AJ found
�insufficient evidence� that the SO's retaliatory action caused such
harm to complainant that would support an award of compensatory damages,
we note that the AJ did not permit two approved witnesses, a neighbor
and complainant's daughter, to testify as to the emotional and mental
harm suffered by complainant. In this regard, the Commission has held
that neither evidence from a health care provider nor expert testimony
in general is a mandatory prerequisite for recovery of compensatory
damages for mental and emotional distress, and that evidence may include
statements from the complainant. Lawrence v. United States Postal Service,
EEOC Appeal No. 01952288 (April 18, 1996).
Where, as here, the complainant alleges that she is entitled
to compensatory damages, and the Commission enters a finding of
discrimination, the complainant must be given an opportunity to submit
evidence establishing her claim. To receive an award of compensatory
damages, a complainant must demonstrate that he or 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.
Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994); Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice No. N. 915.002 (July 14,
1992) at 11-12, 14.
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the agency's request. The decision
of the Commission in Appeal No. 01973399 (December 10, 1998) remains the
Commission's final decision, except for the ordering of an additional
hearing on the issue of compensatory damages as specified below.
There is no further right of administrative appeal on the decision of
the Commission on a Request to Reconsider.
Accordingly, the complaint is hereby REMANDED for further processing in
accordance with this decision, the following Order, and the subsequent
paragraph.
ORDER (D1199)
The agency is ORDERED to take the following remedial action in addition to
that already specified in EEOC Appeal No. 01973399 (December 10, 1998):
1. The issue of compensatory damages is REMANDED to the Hearings Unit
of the appropriate EEOC field office. Thereafter, the Administrative
Judge shall issue a decision on this issue in accordance with
64 Fed. Reg. 37,644, 37,657 (1999) (to be codified at 29 C.F.R. �
1614.109), and the agency shall issue a final action in accordance with
64 Fed. Reg. 37,644, 37,657-58 (1999) (to be codified at 29 C.F.R. �
1614.110) within forty (40) days of receipt of the Administrative Judge's
decision. The agency shall submit copies of the Administrative Judge's
decision and the final agency action to the Compliance Officer at the
address set forth below.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 21, 2000 ______________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.