Joseph W. Milder, Appellant,v.Togo D. West, Secretary, Department of Veteran Affairs,) Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01971724 (E.E.O.C. Jan. 15, 1999)

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