01971724
01-15-1999
Joseph W. Milder, Appellant, v. Togo D. West, Secretary, Department of Veteran Affairs,) Agency.
Joseph W. Milder v. Department of Veteran Affairs
01971724
January 15, 1999
Joseph W. Milder, )
Appellant, )
) Appeal No. 01971724
v. ) Agency No. 95-1671
) Hearing No. 260-96-8043X
Togo D. West, )
Secretary, )
Department of Veteran Affairs,)
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. and the Rehabilitation Act of 1973, as amended, 29
U.S.C. �701 et seq. The Final Agency Decision (FAD) was issued on November
18, 1996. The appeal was postmarked December 18, 1996. Accordingly,
the appeal is timely, (See 29 C.F.R. �� 1614.402(a)and 1614.604(b)),
and is accepted in accordance with EEOC Order 960.001, as amended.
ISSUE PRESENTED
The issue presented is whether appellant has established by a
preponderance of the evidence that the agency discriminated against him
on the basis of a disability (Dyslexia, Attention Deficit Disorder,
and Major Depression) and/or reprisal (prior EEO activity), when he:
(1) was denied advance sick leave; (2) received a poor mid-term progress
review; and (3) was non-selected to the position of Police Officer.
PROCEDURAL HISTORY
Appellant contacted an EEO Counselor on May 22, 1995 and filed a formal
complaint on June 22, 1995. Upon completion of an investigation by the
agency, the appellant requested a hearing before an administrative judge
(AJ) which took place on July 17, 1996. The AJ issued her recommended
decision (RD) on September 23, 1996. In her RD, the AJ found that the
preponderance of the evidence: (1) supported reprisal discrimination
(prior EEO activity); and (2) did not support disability discrimination.
The agency, thereafter, submitted its FAD finding that the preponderance
of the evidence did not support a finding of disability or reprisal
discrimination. It is from that decision that appellant now appeals.
BACKGROUND
The record reveals the following:
Appellant worked at the Department of Veteran Affairs, Police and
Security Department (agency) as a Police and Security Officer, GS-4, from
September 20, 1981 until March, 1993. From March, 1993 to November 5,
1993, appellant worked in a Housekeeping position in the Environmental
Service Section (EMS). Prior to his employment with the agency, appellant
was a military Police Officer serving in the United States Air Force.
Since 1989, appellant's first-line supervisor (S1) was in charge of
scheduling shifts which were rotated among the Police Officers. In 1991,
appellant filed a union grievance complaining of the alleged unfair
treatment appellant received in the scheduling of shifts by S1. Appellant
complained that he was taken out of the scheduled rotation and given less
desirable shifts. The complaint was resolved by the agency allowing the
senior officer to pick the shifts. Appellant was the senior officer at
the time.
In October, 1992, S1 again changed appellant's work schedule and took
him out of the scheduled rotation. Appellant consequently filed a second
grievance on this matter. Also in October, 1992, shortly following the
filing of the grievance, appellant suffered a "nervous breakdown" as a
result of the alleged stress caused by his supervisors. He was diagnosed
as suffering from clinical depression and went on medical leave because
he could not perform his job duties.
In November, 1992, appellant gave his second-line supervisor (S2) a letter
from his psychiatrist (P1), which stated that appellant was being treated
for depression and may be able to return to work in mid-December, 1992.
In addition, appellant was diagnosed for the first time as suffering
from Attention Deficit Disorder and Dyslexia. Appellant was not
previously aware of any learning disability. On November 25, 1992,
appellant submitted to S2, the Chief of Police, a request for advanced
sick leave. In his request, appellant stated that he was requesting 92 �
hours advanced sick leave and that he should be able to return to work
by mid-December, 1992. Appellant also stated that he anticipated that
his sick leave would be exhausted by November 28, 1992.
Sometime after filing the October, 1992 grievance, the entire grievance
file was stolen out of a locked office and never recovered. Appellant,
thereafter, in December, 1992, transferred his union grievance to the EEO
process by making his initial contact with an EEO Counselor. In addition,
it should be noted that the records pertaining to this initial contact
have been misplaced by the agency and cannot be located.
On December 8, 1992, P1 wrote to S2 advising him that appellant was
recovering from depression and, additionally, had a learning disability.
It was P1's opinion that appellant should not return to the highly
stressful situation associated with his previous job placement.
The agency denied appellant's sick leave sometime in December, 1992.
Appellant returned to work in January, 1993.
On or about February 3, 1993, S1 wrote out a negative Progress Review and
indicated that appellant "needs improvement." Prior to this incident,
appellant had always been rated "Fully Successful." Appellant spoke
with his Union Representative who was able to get the Progress Review
removed from his Personnel file.
The record also shows that in February, 1993, S1 publicly shouted at
appellant in front of his fellow officers during a staff meeting.
Appellant was extremely upset by the incident and went to see the
agency's staff psychologist (P2). Just prior to filing a formal
complaint, the Union President called appellant to resolve the matter.
The matter was resolved by appellant being reassigned to the EMS Section.
Appellant believed this assignment was temporary while he was recovering
from his depression. However, a few agency witnesses understood that
it was a permanent reassignment. On March 4, 1993, appellant began his
Housekeeping position.
In July, 1993, P1 sent a letter to Personnel stating that appellant was
able to return to his Police Officer duties, his depression was treated
and over, and he had a learning disability for which he took Retilin.
Appellant was advised by Personnel that he had to apply for a Police
Officer position which was vacant. Appellant submitted an application.
Appellant was one of four candidates qualified for the Police Officer
position, however the position was never filled and the announcement
was eventually canceled.
In approximately November, 1993, appellant resigned from his position
with Housekeeping because he became frustrated by the treatment he
received by the agency. However, appellant continued in his attempts
to be rehired as a Police Officer.
In October, 1994 another Police Officer position became available for
employees within the Police and Security Department. Appellant did not
apply because the position was never made available to outside employees.
However, appellant advised the agency that he was interested in the
position. The recruitment action for the position was subsequently
canceled.
In April or May, 1995, the Police Officer position was re-posted as
a permanent part-time position and a permanent full-time position.
Appellant applied for both positions. The full-time position was
subsequently canceled. Appellant and Candidate 1 (C1) were the only
candidates for the part-time position. S1 reviewed the applications and
recommended C1 as the best person for the position. According to S1's
testimony, years of experience was not that important to S1. Moreover,
he found C1 to be exceptionally motivated and had done well in all his
agency positions. S1 stated that appellant was a dependable and reliable
worker when employed as a Police Officer, but there were concerns about
his dress, report writing, attitude and appellant's dislike of him.
S2 stated that he selected C1 because he was already in the agency system,
had prior police and security experience and had a better rapport with
agency employees.
Appellant received a letter from the agency dated May 20, 1995 advising
appellant that he was eligible for the part-time Police Officer position
and was being considered. However, on May 11, 1995, C1 was hired for the
part-time Police Officer position. C1 worked as a Security Policeman for
eleven months in 1980 for the United States Navy. His more recent police
officer experience was limited to five months with the agency in 1991.
The position required a minimum one year specialized experience.
ANALYSIS AND FINDINGS
DISABILITY DISCRIMINATION
In order to establish a prima facie case of disability discrimination,
appellant must show that he is a qualified person with a disability and
the agency treated him less favorably than individuals not within his
protected group or it failed to make a plausible reasonable accommodation
to his disability. In addition, appellant must show that there is a nexus
or causal relationship between the disabling condition and the challenged
agency action. Rideout v. Army, EEOC Appeal No. 01933866 (November 22,
1995); Mackey v. United States Postal Service, EEOC Appeal No. 01931771
(April 28, 1994). A qualified person with a disability is one who with
or without reasonable accommodation, can perform the essential functions
of the position in question. 29 C.F.R. �1614.203(a)(6) A person with
a disability is a person who (1) has a physical or mental impairment
that substantially limits a major life activity; (2) has a record of
such an impairment; or (3) is regarded has having such an impairment.
29 C.F.R. �1614.203(a)(1).
Appellant alleges three disabilities: (1) Attention Deficit Disorder; (2)
Dyslexia; and (3) Clinical Depression. We believe that the record does
not support a finding that appellant was a qualified disabled employee.
Appellant has not shown that his Dyslexia and Attention Deficit Disorder
substantially limits a major life activity such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, working, thinking, concentrating, and interacting
with others. 29 C.F.R. �1614.203(a)(3). See Fidurski v. HHS, FDA,
EEOC Request 05960027 (February 19, 1997). "Substantial limitation"
is evaluated in terms of severity of the limitation and the length of
time it restricts a major life activity. In order to be sufficiently
severe to substantially limit a major life activity, an impairment must
significantly restrict the condition, manner, or duration under which an
individual can perform a major life activity as compared to an average
person in the general population.
Although appellant testified that during his employment as a Police
Officer he had some difficulty with report writing and received
assistance on some occasions from his co-workers, he also testified
that he similarly assisted his co-workers with their report writing.
Appellant testified that his major problem is spelling and it "just
takes a little bit longer" to spell correctly because he has learned
to spell by memory and by using a dictionary for more difficult words.
With respect to his Attention Deficit Disorder, the record is void of
any evidence regarding how appellant is affected by this disability.
We do not find that the record supports a determination that appellant
was "substantially limited" in any major life function and accordingly,
appellant has not met his burden of presenting a prima facie case of
disability discrimination with respect to Dyslexia and Attention Deficit
Disorder.
Appellant described the symptoms of his Depression and testified that:
(1) he "lost self-esteem"; (2) he "lost respect"; and (3) his "personal
appearance wasn't the best." In addition, P1, indicated in a letter that
appellant had symptoms of "crying spells, irritability, and deterioration
of his mood." Although P1 diagnosed appellant as being clinically
depressed for a period of approximately six months, appellant did not
present evidence which quantifies the severity or duration of each
individual symptom. In addition, appellant testified that his sleep
patterns were affected by the anti-depressants that were prescribed to
him and caused additional prescribed medication to adjust and stabilize
his sleep patterns. Appellant failed to present evidence, however, that
the Depression caused the problems in sleeping. Moreover, there is no
evidence which quantifies the severity or duration of his particular
symptoms. We find that the record does not support a determination
that appellant's Depression caused a "substantial limitation" in any
major life function. Accordingly, appellant has not met his burden of
presenting a prima facie case of disability discrimination with respect
to his clinical Depression.
In addition to the absence of evidence supporting a finding that
appellant is a qualified individual with a disability, we find that
the record is void of any evidence whatsoever which may indicate that
the agency regarded appellant has having a substantially limiting
impairment or that appellant had a record of a substantially limiting
impairment. Accordingly, we agree with the AJ's finding of no disability
discrimination.
REPRISAL DISCRIMINATION
Appellant also claims that he was discriminated against on the basis of
reprisal which is properly analyzed under the three-part test delineated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981).
Under McDonnell Douglas, a complainant must first make out a prima
facie case of discrimination. This prima facie showing establishes
a presumption of discriminatory motive which the respondent may
rebut by articulating a legitimate, non-discriminatory reason for its
action. The complainant may still prevail by showing that the alleged
non-discriminatory explanation is in fact pretext to hide discrimination.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). In
order to establish that the agency's articulated reason is pretextual,
appellant must either show that a discriminatory reason more likely
motivated the agency. Burdine, 450 U.S. at 253.
PRIMA FACIE CASE
In order to establish a prima facie case of reprisal appellant must
show: (1) that he engaged in prior protected EEO activity; (2) that
the responsible agency official knew of that activity; (3) that he was
subjected to an adverse employment action; and (4) that the adverse
employment action followed the protected activity at such a time or
in such a manner as to permit an inference of retaliatory motivation.
See Masur v. Justice, EEOC Appeal No. 01951648 (January 23, 1998).
Prior EEO Activity
There are three incidents which the appellant alleges were due to
discrimination: (1) the denial of the request for advance sick leave on
December 14, 1992; (2) the negative February 3, 1993 Progress Review;
and (3) the non-selection of appellant to the position of part-time
Police Officer in May, 1995. The AJ determined that appellant's initial
contact with the EEO Counselor in December, 1992 constituted the protected
activity with respect to the reprisal claim, and such contact occurred
prior to the denial of sick leave. The agency argues that there is no
evidence which pin-points the exact date when the EEO initial contact
took place in December, 1992 and accordingly, the appellant has failed to
meet his burden of proving that the protected activity occurred prior to,
at the very least, the first alleged adverse action.
We agree with the agency that the record is void of any evidence
to support the contention that appellant's initial contact with the
EEO Counselor took place prior to the denial of advanced sick leave.
In fact, the testimony of appellant is that he believed he contacted
the EEO Counselor after the agency denied him advanced sick leave.
Appellant testified as follows:
Q: And your request for advanced sick leave was denied when, do you
recall?
A: I think it was around December 14th of �92.
Q: Is this the same time you filed the EEO [sic]?
A: The [sic] I filed the EEO [sic] after that, because I felt that �
THE COURT: December 19, was it?
THE WITNESS: December of �92.
THE COURT: Right, okay.
THE WITNESS: I filed an EEO [sic] after that, with Randy Martin.
(H.T. p. 31).
However, we do not find that the EEO initial contact by appellant
is the protected activity which spurred the reprisal in this matter.
Instead, we find that the record supports a finding that the activity
which spurred the allegedly retaliatory act occurred in October, 1992
when appellant filed his grievance with the union.
Appellant testified that he filed a grievance in October, 1992 because
S1 had changed his scheduled shift rotation by removing appellant from
his current shift and assigning him a less desirable shift. The record
indicates that appellant had filed a similar grievance the preceding year
which was resolved at that time. Appellant testified that the allegations
of the October, 1992 grievance were the same as the allegations raised in
his EEO initial contact. (H.T. p. 26-27). In fact, appellant testified
that he was advised by his union representative that he had to choose
either the grievance or EEO process to pursue his claim and that he could
not pursue both which also supports the finding that the claims raised in
the grievance addressed claims protected by the EEO process. In addition,
the agency has failed to rebut appellant's assertion regarding the
similarity of the grievance and EEO contact. Moreover, we find that
because the grievance file was stolen while under the agency's custody,
care and control, appellant should not be prejudiced nor should the agency
profit simply because the record is devoid of more detailed information
which may have been contained in the grievance file. Therefore, we find
that appellant raised the same claims of discrimination that he raised
before the EEO Counselor when he complained to his union representative
and filed a formal grievance regarding the change in shift rotation.
Accordingly, the protective activity did not take place in December,
1992, but October, 1992, approximately two months prior to the denial of
advanced sick leave. See Causus v. Air Force, EEOC Appeal No. 01920888
(April 15, 1992); Yake v. Navy, EEOC No. 01951770 (January 5, 1998).
Agency Knew of EEO Activity
It is undisputed that S1 was aware of appellant's grievance
contemporaneous to appellant filing the grievance. In fact, S1 testified
that appellant verbalized his grievance "quite well." While S1 testified
that he believed the grievance was filed in November, 1992, rather than
October, 1992, S1's awareness of the grievance nevertheless occurred
prior to the denial of advanced sick leave.
Adverse Employment Action Followed Protected Activity
It is undisputed that appellant suffered adverse employment action in the
form of (1) the denial of advanced sick leave; and (2) the non-selection
of the Police Officer's position in May, 1995. The agency, however,
does dispute the finding that the February 3, 1993 Progress Review
constitutes an adverse action. According to the agency, the Progress
Review resulted in no harm because it is "only a sort of warning notice
which has no material or permanent effect," and appellant's contact
with the union following the Progress Review led to the removal of the
negative Progress Review from appellant's file.
We disagree with the agency. The Commission has held that written warning
notices which are placed in a complainant's file constitutes a direct
and personal deprivation sufficient to render an individual aggrieved.
See McAlhaney v. USPS, EEOC Request No. 05940949 (July 7, 1995);
Fair v. Navy, EEOC Appeal No. 01961886 (November 4, 1996). In addition,
we find that the removal of the Progress Review from the file does not
render moot appellant's claim that he was discriminated on the basis
of disability and reprisal. The negative Progress Review is one of
three incidents which form appellant's claim of reprisal. In addition,
appellant's claims give rise to compensatory damages which precludes a
finding of mootness. Moden v. USPS, EEOC Appeal No. 01975088 (June 25,
1998), citing Jackson v. USPS, EEOC Appeal No. 01923399 (November 12,
1992) request to reopen denied, EEOC Request No. 05930306 (February 1,
1993); See also Robertson v. USPS, EEOC Request No. 05980323 (October 1,
1998).
The agency also claims that the non-selection did not occur sufficiently
close to the date of the protective activity for there to be an inference
of discrimination. We find that there has been a continuing pattern
of adverse action taken against appellant which supports a sufficient
nexus between the protected activity and the final adverse action which
occurred approximately two and one-half years later. The protected
activity occurred in late October, 1992. In December, 1992, appellant
was denied advanced sick leave by S1. In February, 1993, appellant
received a negative Progress Review from S1. Also in February, 1993, S1
publicly yelled at appellant. In March, 1993, appellant was transferred
to Housekeeping. In July, 1993, appellant began to attempt to obtain his
Police Officer position back and applied for several position over the
next two years. Prior to May, 1995, the prior vacancies were canceled
without explanation. Finally, in May, 1995, a less qualified applicant
was recommended by S1 and selected to the Position of Police Officer
over appellant. We believe that these facts constitute a sufficient
nexus between the protected activity and the non-selection in May, 1995.
Bowser v. USPS, EEOC Appeal No. 01944712 (August 21, 1995); Robinson
v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 895 (3d Cir. 1993)
(holding that where there is a lack of temporal proximity, circumstantial
evidence of a "pattern of antagonism" following the protected conduct
can also give rise to the inference.); Waddell v. Small Tube Products,
Inc., 799 F.2d 69, 73 (3d Cir. 1986) (holding that the proffered evidence,
reviewed as a whole, may suffice to raise the inference).
Accordingly, we find that appellant has established a prima facie case
of reprisal discrimination.
AGENCY'S RESPONSE AND PRETEXT
Advanced Sick Leave Denial
Agency's Proffered Reasons for Action
The agency claims that the decision to deny appellant's request for
advance sick leave was made, in large part, by Personnel and the Station
Director, as opposed to S1 and S2, and there is no indication that
those individuals were aware of the protected activity. In addition,
the agency claims that the loan of sick leave was not necessary since
appellant had sufficient sick leave available to cover the anticipated
absence, and appellant had a record of using his sick leave virtually
as fast as he earned it. The agency also argues that appellant used all
his sick leave in 1993 which proves that he was a poor candidate for
repaying advanced sick leave.
Pretext
The record indicates that appellant requested advanced sick leave on
November 26, 1992, in response to his doctor's advice that he should be
out for at least two to three weeks. S1 testified that when considering
whether to grant advanced sick leave he would look at the applicant's
past usage and the likelihood that the applicant would be returning back
to work.
According to the testimony, S1 had previously assisted S2 in the
decision-making process of approving advanced sick leave by obtaining the
necessary background information and presenting it to S2. In addition,
a newly hired officer was granted advanced sick leave twice, despite
the fact that management considered the advancement "questionable."
According to S1, this officer was granted advanced sick leave because
"she was a good officer." S1 also testified that he personally granted
the officer's second request for six weeks advanced sick leave despite
the fact that she already owed the agency sick leave. In addition, S1
testified that the agency did not even know if the officer would come
back after six weeks. S1 clearly did not follow the two factors that
he considered important in determining whether or not to grant advanced
sick leave with respect to the officer.
However, appellant's advanced sick leave was denied despite the fact that
his return to work was not in question and his history of sick leave use
revolved around serious injuries which did not imply abuse. Moreover,
it is undisputed that appellant was the only employee who was ever denied
advanced sick leave by S1 or S2. While S1 claims that he did not make the
decision in denying appellant's advanced sick leave request, he testified
that he "probably did the homework for [S2], figuring out [appellant's]
usage." In addition, S1 testified that he did not remember whether he
had input in the decision to deny appellant advanced sick leave, but
that he could have. S1 also testified that Personnel advised him not
to recommend appellant be granted sick leave. However, a representative
from Personnel testified that S1 recommended the leave be denied.
We find S1's testimony inconsistent and not credible. In addition, we
find that the record indicates that advanced sick leave was routinely
granted. Accordingly, we believe that the agency's proffered reasons
for denying appellant's request was not the true reasons for the denial.
We also find it more likely than not that appellant was denied his
request for advanced sick leave in reprisal for an activity protected
by the laws that the EEOC enforces.
Appellant's Progress Review of February 3, 1993
Agency's Proffered Reasons for Action
S1 testified that when he checked the block marked "Needs improvement
to be fully successful or better," he had a mistaken interpretation of
the meaning of the block and claimed that it was an innocent mistake.
In addition, S1 testified that appellant needed improvement in his
appearance and that is what motivated the adverse Progress Review.
Pretext
While the record supports the finding that appellant on occasions could
have improved his appearance, S1 never noted appellant's appearance
or any other deficiency on any prior review because, according to S1,
appellant was his friend. We believe the record supports the finding
that S1 no longer considered appellant his friend following the October,
1992 grievance in which appellant complained about the discriminatory
practices of S1 in taking appellant out of his scheduled shift rotation.
We also find that S1's testimony that he made an innocent mistake
not credible. S1, a veteran supervisor, had evaluated appellant and
many other employees over the years without any previous errors or
mis-interpretations. Accordingly, we believe that the agency's proffered
reason was not the true reason for the negative Progress Review.
Non-selection of Appellant to the Position of Police Officer
Agency's Proffered Reasons for Action
The agency claims that S2 was the selecting official not S1. In addition,
S2 claimed that he chose C1 rather than appellant because he believed
C1 was best qualified to serve as Police Officer. S2 testified that he
chose the selectee because the selectee was already working for the agency
and had a better rapport with the other agency employees, which led S2
to believe he would do a better job. S1 testified that he recommended
C1 because he had greater motivation and greater ability to communicate.
S1 also claimed to be concerned about appellant's appearance, attitude,
and what S1 regarded as hostility towards himself.
Pretext
While the evidence supports the finding that announced vacant positions
could be canceled for many reasons, the usual reason was budget
cuts. According to the Administrator for Operations (A1), selecting
officials could not cancel posted positions because they did not like
the applicants. However, a Personnel officer testified that vacancy
announcements could be canceled when the applicants were not liked.
In addition, the record shows that the usual selection process in
appellant's case was not followed. According to the Administrative
Assistant for Operations (A2), A1 would routinely make the final
selection, and it was surprising that S2 did so in the instant case.
S1 first testified that he had little involvement in the selection of C1
over appellant. However, later in his testimony, S1 stated that he was
involved in the selection in that he gave S2 input since he had worked
with both C1 and appellant.
The record also reflects that appellant was overwhelmingly more
qualified than C1. Prior to his transfer to Housekeeping, appellant had
twelve years of continuous police officer experience with the agency.
In addition, appellant obtained police officer experience when serving
in the Air Force. On the other hand, C1 only had 5 months police
officer experience with the agency and an additional 11 months Security
Policeman experience with the Navy in 1980 (approximately 15 years prior).
C1's military background indicates that he was a cook and his duties
with the agency appear to be predominately housekeeping and food service
related. In addition, the record shows that appellant had cumulative
years of training in police work. C1 had two years of college and
active involvement in social and civil activities. S2 testified that one
reason he chose C1 for the position was that he had a better rapport with
other agency employees. We find that appellant was overwhelmingly more
qualified than C1 and find improbable that qualities such as rapport and
communication were legitimate bases for selecting C1. However, it seems
more probable that S1 continued to have ill feelings toward appellant for
his allegations of discrimination and accordingly, considered him to be
a troublemaker who he could not get along with in the workplace.
We also find it compelling that the agency completely disregarded
standard procedure in accepting C1's application despite the fact that his
application was submitted approximately ten days after the closing date.
The record shows that applications are rarely accepted after the closing
date and only because of special circumstances, such as unforeseen
illness or accident. Moreover, the agency presented no explanation as
to why C1's application was accepted ten days after the closing date.
Accordingly, we do not find the agency's proffered explanation for its
employment action credible.
In addition to finding that the preponderance of the evidence supports a
finding that the agency's proffered explanation is unworthy of credence,
we also find additional factors sufficient to support a finding of
reprisal discrimination. See St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993).
A Police Officer with the agency (E1) had been identified as a witness
during the EEO investigation in this matter. E1 worked with appellant
and was present during the February, 1993 staff meeting wherein
appellant alleges that S1 verbally attacked him in front of his peers.
E1 testified that approximately one week before the EEO investigator
came in to interview him, S1 stated to him to: "be careful what you
say; don't let this come back and bite you in the butt." We find this
statement evidence of a propensity for reprisal.
In addition, S1's testimony that he and appellant had a friendship until
approximately six months before appellant left the department evidence
of reprisal. S1 stated, "[I]t just sort of broke off. I seemed to get
blamed for everything that was happening to him in his life... That's
about the time of his medical problems." (H.T. p. 146) In addition, S1
stated that he believed that the changing of the tour of duty was what
started the decline in the friendship and that he did not recall any
problems before that. (H.T. p. 147.) S1 was referring to the October,
1992 change of the tour of duty, which immediately prompted the grievance
(protective activity).
We also find it important to point out that the October, 1992 grievance
file was stolen from a locked office, and Personnel has misplaced all
records from the initial EEO contact in December, 1992. While there
is no evidence of wrong doing, we find these circumstances unusual and
cause for concern.
Accordingly, based upon the entire record, including information
specifically not raised herein, we find that the agency's proffered
explanation for its employment action is pretextual to hide reprisal
discrimination.
For the foregoing reasons, the Commission finds reprisal discrimination
when appellant: (1) was denied advanced sick leave, in December,
1992; (2) received a poor Progress Review, in February, 1993; and (3)
was non-selected to a Police Officer GS-05 position, in May, 1995.
The Commission further finds that appellant may be entitled to
compensatory damages. See Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), request to reopen denied,
EEOC Request No. 05930306 (February 1, 1993). In Jackson, the Commission
held that Congress afforded it the authority to award such damages in
the administrative process. It based this assessment, inter alia, on a
review of the statutory provisions of the Civil Rights Act of 1991 in
relation to one another and on principles of statutory interpretation
which require statutes to be interpreted as a whole. In particular,
the Commission discussed the meaning of the statute's definition of the
term "compelling party" and the significance of the reference to the
word "action" in Section 102(a). In addition to the specific reasons
set forth in Jackson for this holding, Section 2000e-16(b)(Section 717)
of the Civil rights Act of 1964 (42 U.S.C. �2000e et seq.)(CRA) conveyed
to the Commission the broad authority in the administrative process
to enforce the nondiscrimination provisions of subsection (a) through
"appropriate remedies." Similarly, in Section 3 of the Civil Rights Act
of 1991 (CRA of 1991), Congress refers to its first stated purpose as
being "to provide appropriate remedies for intentional discrimination
and unlawful harassment in the workplace;", thereby reaffirming that
authority. Consequently, it is our view that in 1991, Congress clearly
intended to expand the scope of the "appropriate remedies" available
in the administrative process to federal employees who are victims
of discrimination. Moreover, in Section 717(c) of the CRA, the term
"final action" is used to refer to administrative decisions by agencies
or the Commission, as distinguished from the term "civil action," used
to describe the rights of employees after such final action is taken.
Therefore, the Commission reaffirms the holding therein. See Cobey
Turner v. Department of the Interior, EEOC Appeal Nos. 01956390 and
01960518 (April 27, 1998); See also Carle v. Department of Navy, EEOC
Appeal No. 01922369 (January 5, 1993).
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency is directed to promote appellant to the position of
Police Officer GS-5, or a substantially similar position. Such promotion
shall be retroactive to May 11, 1995 (the date C1 was selected over
appellant).
2. The agency shall determine the appropriate amount of back
pay, interest and other benefits due appellant, pursuant to 29
C.F.R. �1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. If appellant declines to accept a promotion
with the agency, the back pay period shall end on the date he declines the
offer of promotion. Appellant 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 appellant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. Appellant 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 conduct a supplemental investigation into what
compensatory damages appellant may be entitled to as a result of
the reprisal discrimination.
4. Appellant shall be awarded attorneys fees as set forth below.
5. The agency shall take corrective, curative and preventive action
to ensure that reprisal discrimination does not recur, including but
not limited to providing training to the responsible official(s) at the
Department of Veteran Affairs, Medical Center, Iowa City, Iowa facility in
the law against employment discrimination. Within thirty (30) calendar
days of the date the training is completed, the agency shall submit to
the compliance officer appropriate documentation evidencing completion
of such training.
6. 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 appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Department of Veteran Affairs,
Medical Center, Iowa City, Iowa 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 (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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 (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Jan 15, 1999
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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 the 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 Veteran Affairs Medical Center, Iowa City, Iowa,
(hereinafter "VA"), supports and will comply with such Federal law and
will not take action against individuals because they have exercised
their rights under law.
The VA has been found to have discriminated on the basis of reprisal for
prior EEO activity when a Police Officer (1) was denied advanced sick
leave in December, 1992; (2) received a poor Progress Review in February,
1993; and (3) was non-selected to a Police Officer position in May, 1995.
The VA has been ordered to: (1) retroactively promote the complainant
to Police Officer GS-05 to May 11, 1995; (2) issue an appropriate award
of back pay; (3) issue an appropriate award of compensatory damages;
(4) award reasonable attorneys fees; and (5) take corrective action
in the form of training for the responsible official(s). The VA
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 VA 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