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.