01976128
09-10-1999
Linda Rose, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Linda Rose, ) Appeal No. 01976128
Appellant, ) Agency No. DT-96-055
v. ) Hearing No. 310-96-5628X
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
DECISION
Appellant timely initiated an appeal from a final agency decision
("FAD") concerning her 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. The appeal is accepted pursuant to the provisions
of EEOC Order No. 960.001.
The issue presented is whether appellant was discriminated against based
on her sex, race (African-American) and in retaliation for prior EEO
activity when she was sent home on January 29, 1996, by her supervisor
because he had no light duty work available to accommodate her physical
limitations.
Appellant, who was employed as a Laborer, WG-3, developed carpel tunnel
syndrome in December 1995. Her physician stated that she could not work
from December 7 through 10, 1995. On December 11, 1995, her physician
stated that she could resume work provided she did not use her right hand.
Later, appellant went off duty again, but resumed work on January 22,
1996, and remained prohibited from using her right hand. On January 29,
1996, her supervisor, the Wood Worker Foreman (the �Foreman�) stated in a
memorandum that he could not find work meeting appellant's restrictions
and sent her home about 30 to 40 minutes prior to the end of her shift.
Appellant was not provided work from January 30, through February
10, 1996. On February 21, 1996, appellant was treated by a physician
for mixed anxiety and depressed moods. She was restricted in use of her
right hand until June 1996. The agency subsequently reimbursed appellant
for the period she did not work by allowing her administrative leave.
Appellant timely sought EEO counseling and filed her instant EEO
complaint, which the agency accepted and investigated. Thereafter,
appellant requested a hearing before an EEOC Administrative Judge ("AJ").
After a hearing, the AJ issued a Recommended Decision (�RD�) finding
discrimination based on race and reprisal. The AJ found that appellant
could not establish a prima facie case of discrimination based on sex,
inasmuch as she was unable to establish that any male employees were
treated more favorably than she. However, the AJ found that appellant
established a prima facie case of discrimination based on race because
appellant's second level supervisor, the Wood Worker General Foreman
(the �General Foreman�) previously found work for appellant. The AJ also
found relevant that the Foreman once called another employee �n----r� in
appellant's presence. The AJ further found that appellant established
a prima facie case of retaliation because the Foreman was aware of her
prior in EEO activity in November 1995, and denied her light duty three
months later.
The AJ found that the agency articulated a legitimate, nondiscriminatory
reason for the denial of light duty, namely that the Foreman maintained
that there was no work available which met appellant's restrictions.
The Foreman testified that he contacted two other persons, who were also
unable to provide work for appellant. Therefore, on January 29, 1996,
the Foreman contacted a Civilian Personnel Management Specialist (the
"Specialist"), who advised him to send appellant home. Accordingly,
the Foreman sent appellant home 30 to 40 minutes prior to the end of
her shift.
The AJ found that appellant established that this articulated reason
was a pretext for race discrimination and reprisal. The AJ noted that
the General Foreman testified that appellant had been accommodated many
times during the preceding six month period and that he had always found
work for her to do. Although the agency claimed that appellant had some
use of her right hand during that period, the AJ noted that appellant's
physician had prohibited her from using her right hand since December
11, 1995. The General Foreman was hospitalized on January 29, 1996,
and on sick leave for the remainder of the relevant period. However,
the General Foreman testified that he had instructed the Foreman to
find work for appellant and further maintained that he was familiar with
the type of work which was customarily available and there were duties
which appellant could have performed. Accordingly, the AJ found that
the Foreman could have found work for appellant to perform. Finally,
noting that appellant had named the Foreman in a prior EEO complaint and
finding that the Foreman had used a racial epithet, the AJ concluded that
more likely than not the Foreman's decision to send appellant home was
motivated by an animus toward appellant based on both her prior protected
EEO activity and her race. As relief, the AJ found that appellant should
be awarded retroactive pay for the period she was off, to the extent
(if any) she had not already received such pay. While appellant sought
compensatory damages, the AJ found that she �wholly failed to establish a
claim for damages associated with this event.� The AJ recommended that
the agency post a notice and instruct the Foreman to attend at least
40 hours of sensitivity and EEO related training, and that the agency
carefully monitor his treatment of employees who are African-Americans
or who had filed EEO complaints.
In its FAD, the agency timely rejected the RD. Noting that appellant
was subsequently placed on administrative leave and paid for the period
she was off work without being charged annual or sick leave, the agency
found that she failed to state a claim. Assuming that appellant had
stated a claim, the agency found that she failed to establish a prima
facie case of reprisal because she was not aggrieved by being sent home
early on January 29, 1996. Assuming that appellant was aggrieved and
established a prima facie case of reprisal, the agency found that it
had articulated a legitimate nondiscriminatory reason for its actions.
The agency cited the testimony of the Specialist to the effect that there
were no light duty assignments meeting appellant's medical restrictions
during the period in question and that, because of morale problems, the
agency did not want appellant to sit in a work area performing no work.
The agency found that appellant failed to establish that the articulated
reason was a pretext for reprisal.
The agency found that appellant could not establish a prima facie case
of discrimination based on race, since she was unable to show that she
was treated less favorably than employees of a different race. Instead,
the agency found that appellant was in fact treated more favorably than
a White male employee, who was required to use annual and sick leave
when he was unable to perform duties after injuring his hand, whereas
appellant (who had no leave balance) was granted administrative leave.
Although the agency found that the Foreman had used a racial slur in
appellant's presence the agency found that this single incident was not
sufficiently severe or pervasive to violate Title VII, particularly
as the Foreman was speaking to another employee while both off-duty
and off-site. Given the testimony of the Specialist and appellant's
failure to establish that any employee was treated more favorably than
she, the agency found that the Foreman's conduct in that instance was
insufficient to raise an inference of race discrimination.
Appellant timely appeals, and argues that the AJ was in the best position
to view the demeanor of the Foreman and that the agency did not establish
substantial reasons for rejecting the RD. Appellant reiterates that
she was sent home 30 minutes early. She notes that the Foreman used
the racial epithet twice, inasmuch as both the AJ and the agency found
that he used it in the instance described above and he testified that he
himself may have said the epithet in the course of counseling an employee
for using it. In its comments on the appeal, the agency notes that the
AJ only found the testimony of the Foreman to be without credence, and
did not find that the testimony of the Specialist lacked credibility.
The agency argues that, had the Foreman wished to discriminate against
appellant, he would not have sought the advice of the Specialist prior
to sending appellant home.
After a careful review of the record, the Commission finds that the RD
adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The Commission finds without merit the
agency's contention that appellant failed to state a claim or was not
aggrieved when she was sent home early on January 29, 1995, and was
denied work from January 30, through February 10, 1996, because the
agency subsequently granted her administrative leave for this period.
The Commission further finds that the AJ properly determined that
appellant met her initial burden of proof by proffering sufficient
evidence to raise an inference of discrimination based on race.
Finally, the Commission discerns no basis to disturb the AJ's finding
that appellant established discrimination based on race and reprisal.
Therefore, it is the decision of the Commission to reverse the FAD and
find that appellant established that she was subjected to discrimination
based on race and reprisal. See also Wrenn v. Gould, 808 F.2d 493, 499
(6th Cir. 1987); Universal Camera Corp. v. National Labor Relations Board,
346 U.S. 474 (1951)(In general, the credibility determinations of an AJ
are entitled to great weight and deference).
The Commission notes that on appeal, appellant does not challenge the AJ's
finding that she failed to establish a nexus between the compensatory
damages sought and the agency's actions. Appellant offered very little
testimony relating to the alleged emotional distress she suffered as a
result of the agency's actions. Although she sought treatment from a
physician for mixed anxiety and depressed moods on February 21, 1996,
the Commission notes that this was nearly two weeks after she had been
returned to her duties. The AJ found that appellant had "a number of
other problems ... in her life at that time, including apparent marital
problems," and determined that she "wholly failed to establish a claim
for damages associated with" being sent home 30 minutes prior to the
end of her shift on January 29, 1995, and denied work from January 30,
through February 10, 1996. The Commission finds no basis for disturbing
the AJ's finding in this regard.
Accordingly, after a careful review of the record and for the reasons set
forth above, it is the decision of the Commission to REVERSE the FAD and
find that appellant established that she was subjected to discrimination
based on race and reprisal. Accordingly, the agency is directed to
comply with the following ORDER.
ORDER (D1092)
The agency is ORDERED to take the following remedial actions:
(1) To the extent it has not already done so, the agency shall determine
the appropriate amount of back pay and other benefits, if applicable,
due appellant as a result of being sent home 30 minutes prior to the
end of her shift on January 29, 1995, and denied work from January 30,
through February 10, 1996, pursuant to 29 C.F.R. �1614.501, no later
than sixty (60) calendar days after the date this decision becomes final.
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
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."
(2) The agency shall conduct training for the Foreman in accordance
with the Recommended Decision regarding his obligations under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
(3) 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 verifying
that the foregoing corrective actions have been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Defense Distribution Depot, Red
River, Texarkana, Texas, 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(c) (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:
September 10, 1999
________________ ___________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat