01984888
12-22-2000
Robert L. Smith, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Robert L. Smith v. Department of Defense - Defense Finance &Accounting
Service
01984888
12-22-00
.
Robert L. Smith,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01984888
Agency No. DFAS-IN-OOHB-95-033
Hearing No. 320-96-8372X
DECISION
INTRODUCTION
On June 9, 1998, Robert L. Smith (the complainant) timely filed an appeal
with the Equal Employment Opportunity Commission (the Commission) from a
final agency decision (FAD) dated May 8, 1998, 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.<1> The
Commission hereby accepts the appeal in accordance 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issues on appeal are (1) whether the agency properly determined
that complainant was entitled to an award of $5,000 in non-pecuniary
compensatory damages pursuant to a finding of discrimination based on
reprisal and (2) whether complainant failed to prove that the agency
discriminated against him based on national origin, color and reprisal
when he was subjected to ongoing harassment when his supervisor yelled
at him.
BACKGROUND
Complainant was employed by the agency, at the time of the events in
question, as a Disbursing Officer, GS-7, at Fitzsimons Army Medical Center
in Denver, Colorado. He initiated EEO counseling on June 19, 1995.
He filed a formal complaint on July 27, 1995, alleging discrimination
on the bases of national origin (American Indian), color (brown) and
reprisal (prior EEO activity) when: 1) on June 16, 1995, he received an
annual performance rating of �minimally satisfactory,� with job elements
5 and 7 rated as �not met,� and 2) on May 10, 1995, he was subjected to
�ongoing harassment,� when his supervisor yelled at him and told him he
was incompetent. The agency accepted the complaint for investigation
and processing. At the conclusion of the investigation, the agency
issued a copy of its investigative report and notified complainant of
his right to request an administrative hearing. Complainant requested
a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued Findings of Fact and Conclusions of
Law, finding discrimination on issue 1 and no discrimination on issue 2.
The AJ concluded that complainant's supervisor had given him a low
rating on his annual performance appraisal in reprisal for complainant's
previous EEO complaints. Complainant had settled two EEO complaints
against the agency in a Settlement Agreement dated February 7, 1995, and
complainant's supervisor had been a signatory to the Settlement Agreement.
The AJ ordered the agency to take the following corrective action:
cease and desist from engaging in any further retaliatory actions;
pay complainant's reasonable attorney's fees; expunge the minimally
acceptable rating from complainant's record and replace it with a �fully
successful� rating; pay $5,000.00 in compensatory damages for the mental
and emotional harm suffered; and post a notice that discrimination had
been found in this case.
The AJ concluded that complainant had not shown �ongoing harassment�
in issue 2 because the single incident where complainant's supervisor
yelled at him was insufficiently severe or pervasive to create an
abusive environment. The AJ also found that complainant had not shown
retaliation in issue 2 because he had not suffered any adverse action as
a result of the incident. Therefore, the AJ concluded that complainant
had not been discriminated against as a result of his national origin,
color or reprisal when his supervisor told him he was incompetent.
The agency's final decision adopted in its entirety the AJ's Findings
and Conclusions, and it represented that it had fully implemented the
corrective action ordered by the AJ.
On appeal, complainant contended that the AJ erred when he did not award
a larger amount in compensatory damages and when he did not find ongoing
harassment in connection with the yelling incident. The complainant
argued that in his consideration of the severity of the harm suffered,
the AJ improperly disregarded complainant's testimony that he sought
counseling from his Indian doctor because complainant would not disclose
the name of the doctor at the hearing, claiming that it conflicted with
his religious beliefs to do so. He also argued that the AJ had erred in
not considering the history of the relationship between the complainant
and his supervisor when he determined that the yelling incident was not
ongoing harassment of the complainant. The agency requested that we
affirm the Findings and Conclusions of the AJ and its final decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding that discriminatory intent did not exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that
the AJ's Findings and Conclusions summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We discern
no basis to disturb the AJ's Findings and Conclusions with respect to his
determination that complainant had been discriminated against in regards
to issue 1, but not issue 2. We also find, however, that in regards
to the amount of compensatory damages the AJ awarded, the AJ improperly
disregarded complainant's testimony about having sought counseling from
his Indian doctor because he would not disclose the name of that doctor.
To the extent that the testimony was offered to show complainant's
need to seek medical attention for his mental and emotional harm, the
AJ was correct that the complainant had placed his mental condition at
issue, and that the agency should have had the opportunity to rebut
that evidence. To the extent that the testimony was offered to show
complainant's state of mind, we find that his need to seek counseling from
a person who was not only his doctor, but his spiritual counselor as well,
has relevance and should have been considered in determining the amount
of compensatory damages. To that end we have considered the testimony,
and hereby adjust the amount of compensatory damages awarded by the AJ,
awarding a total of $6,000.00 to complainant in order to be consistent
with previous awards of compensatory damages made by the Commission,
where the harm suffered was similar to complainant's.<2>
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, we MODIFY the agency's
final decision.<3>
ORDER
1. The agency shall award complainant compensatory damages in the amount
of $6,000.00. The agency shall issue a check to complainant within
one hundred and twenty (120) calendar days of the date this decision
becomes final. A copy of the check issued must be submitted to the
Compliance Officer, as referenced below.
If the agency has already issued complainant a check for $5,000.00 in
compensatory damages, the agency shall award the additional $1,000.00
to complainant and shall send a copies of both checks to the Compliance
Officer, as listed below.
2. If it has not already done so, the agency shall award complainant
reasonable attorney's fees, as specified in the section entitled
�Attorney's Fees� below. A copy of the check issued must be submitted
to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
ATTORNEY'S FEES (H0900)
If complainant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__12-22-00________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 See Benson v. Department of Agriculture, EEOC Appeal No. 01952854
(June 27, 1996) (Commission awarded$5,000.00 in non-pecuniary damages
for emotional distress in the form of embarrassment, humiliation, mental
anguish and stress experienced from various acts of discrimination); Rose
v. Department of Veterans Affairs, EEOC Appeal No. 01950521 (September
18, 1998) (Commission awarded $5,000.00 in non-pecuniary damages for
symptoms of anxiety and depression experienced by complainant); Miller
v. U.S. Postal Service, EEOC Appeal No. 01956109 (January 23, 1998)
(Commission awarded $7,500.00 in non-pecuniary damages for severe stress
and anxiety for which complainant testified he was under a doctor's
care).
3 The record contains evidence which shows that the agency expunged the
minimally acceptable rating from complainant's record and replaced it
with a �fully successful� rating, and that the agency posted a notice
stating that discrimination had been found in this case. It contains a
copy of the fee petition from complainant's attorney, however, there is
no evidence that the attorney's fees or the compensatory damages were
actually awarded to the complainant.