Rochelle L. Cross, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 31, 2005
07a40109 (E.E.O.C. Mar. 31, 2005)

07a40109

03-31-2005

Rochelle L. Cross, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Rochelle L. Cross v. Department of the Army

07A40109

March 31, 2005

.

Rochelle L. Cross,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 07A40109

Agency No. AWGHFO0110B0050

Hearing Nos. 280-A3-4066X,

280-A3-4067X, 280-A3-4068X

DECISION

Following its June 29, 2004 final order, the agency filed a timely appeal

which the Commission accepts pursuant to 29 C.F.R. � 1614.405. On appeal,

the agency requests that the Commission affirm its rejection of an EEOC

Administrative Judge's (AJ) finding that the agency discriminated against

complainant on the bases of her race and sex. The agency also requests

that the Commission affirm its rejection of the AJ's decision to order

the agency to pay $40,000.00 in compensatory damages, mandate training,

post a notice regarding discrimination, and pay $69,725.00 in attorney's

fees and $10,865.28 for associated costs. For the following reasons,

the Commission REVERSES the agency's final order.

The record reveals that complainant alleged discrimination based on

race (African American), sex (female), disability (asthma),<1> and

reprisal for prior EEO activity when (1) beginning in February 1998

she was not promoted to General Attorney (Real Estate), GS-0905-13, on

a noncompetitive basis; (2) she was subjected to unlawful harassment;

and (3) she was denied reasonable accommodation. The complaint was

investigated, and at the conclusion of the investigation, complainant

was provided a copy of the investigative report and requested a hearing

before an AJ.

Following a hearing, the AJ issued the decision referenced above finding

complainant had been the victim of race and sex discrimination with

regard to her claim of harassment. The AJ found no discrimination

with respect to complainant's claims of failure to promote, denial of

reasonable accommodation, and retaliation. The agency did not fully

implement the AJ's decision. Specifically, the agency rejected the AJ's

finding of race and sex discrimination regarding complainant's claim of

harassment and the AJ's decision to order remedies. The agency upheld

the AJ's finding of no discrimination on all other claims.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

Upon review of the record, including arguments and evidence not

specifically discussed in this decision, we discern no basis to disturb

the AJ's finding of discrimination. The findings of fact are supported

by substantial evidence, and the AJ correctly applied the appropriate

regulations, policies, and laws.

Regarding remedy, the Commission concludes that the record supports

the AJ's award of $40,000.00 in compensatory damages. See Turner

v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518

(April 27, 1998) ($40,000.00 in non-pecuniary damages for physical pain,

loss of enjoyment of life, and loss of health sustained as a result of

harassment). Furthermore, the Commission finds that the record also

supports the AJ's decision to order mandatory training, to require

posting, and to award complainant $69,725.00 in attorney's fees and

$10,865.28 for associated costs.

Therefore, the Commission REVERSES the agency's final order and directs

the agency to take corrective action in accordance with this decision

and the Order below.

ORDER

The agency is ordered to take the following remedial action:

Within thirty (30) days of the date on which this decision becomes final,

the agency shall pay complainant $40,000.00 in compensatory damages.

Within thirty (30) days of the date on which this decision becomes

final, the agency shall pay complainant attorney's fees in the amount

of $69,725.00 and the further amount of $10,865.28 in associated costs.

The agency shall post a notice of the finding of discrimination, as

set forth in the below-entitled paragraph, �Posting Order.�

Within ninety (90) days of the date on which this decision becomes

final, the agency shall provide EEO training regarding rights and

responsibilities under Title VII, including the requirements related

to harassment, to all employees of the agency's Real Estate Division

in Kansas City, Missouri.<2>

The agency shall consider taking disciplinary action against the agency

officials found to have discriminated against complainant. The agency

shall report its decision. If the agency decides to take disciplinary

action, it shall identify the action taken. If the agency decides not

to take disciplinary action, it shall set forth the reason(s) for its

decision not to impose discipline.

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 benefits

due complainant, including evidence that the corrective action has

been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Real Estate Division, U.S. Army

Engineer District, Kansas City, Missouri 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 (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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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)

(1994 & Supp. IV 1999). 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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).

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

March 31, 2005

__________________

Date

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 (Title VII),

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 that 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 Real Estate Division, U.S. Army Engineer District, Kansas City,

Missouri supports and will comply with such Federal law and will not

take action against individuals because they have exercised their rights

under law.

The Real Estate Division, U.S. Army Engineer District, Kansas City,

Missouri has been found to have discriminated against the individual

affected by the Commission's finding. The Real Estate Division,

U.S. Army Engineer District, Kansas City, Missouri has been ordered

to provide compensatory damages to the affected employee and provide

training regarding rights and responsibilities under Title VII, including

the requirements related to harassment, to all division employees.

The Real Estate Division, U.S. Army Engineer District, Kansas City,

Missouri 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 Real Estate Division, U.S. Army Engineer District, Kansas City,

Missouri 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

1For purposes of this decision the Commission assumes without finding that

complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).

2The Commission notes that mandated EEO training is not considered to

be disciplinary in nature.