Ronnie Acha, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 25, 2000
07a00011 (E.E.O.C. Oct. 25, 2000)

07a00011

10-25-2000

Ronnie Acha, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Ronnie Acha v. Department of the Navy

07A00011

October 25, 2000

.

Ronnie Acha,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 07A00011

Agency No. DON 96-65923-080

Hearing No. 140-97-8068X

DECISION

Following its January 11, 2000 final order, the agency timely filed

an appeal which the Equal Employment Opportunity Commission (EEOC

or Commission) accepts pursuant to 29 C.F.R. � 1614.405.<1> The

agency requests that the Commission affirm its rejection of an EEOC

Administrative Judge's (AJ) finding of discrimination in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq. It also requests that its rejection of the AJ's order to pay

complainant compensatory damages be affirmed.

The complainant filed an EEO complaint alleging, in relevant part,

that he was discriminated against on the basis of race (white) when

he was not selected for promotion to the temporary position, not to

exceed a year, of Transportation Equipment Operations Supervisor II,

WS-10 in 1996. This second level supervisory job was located at the

Marine Corps Air Station in Cherry Point, North Carolina. Following an

agency investigation and EEOC hearing, the AJ issued a decision finding

race discrimination.

Two candidates, i.e., the selectee (black) and the complainant were

referred to the selecting official (white). In finding discrimination,

the AJ did not credit the selecting official's explanation that he

chose the selectee because he was better qualified. Specifically,

the AJ found that the selecting official's rating of the complainant's

supervisory ability �went awry� and was substantially too low, that his

lower rating of the complainant's relevant training was �absurd,� and

his rating of the complainant's awards �ignored� awards.

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).

On appeal, the agency cites Texas Department of Community Affairs

v. Burdine, 450 U.S. 248, 259 (1981) for the rule that an employer has

discretion to choose among equally qualified candidates, provided the

decision is not based upon unlawful criteria. That decision also stated

that the fact a court may think the employer misjudged the qualifications

of the applicants does not in itself expose the employer to Title VII

liability, but maybe probative of pretext. The agency argues that the AJ

substituted his judgment for that of the selecting official in assessing

the candidates qualifications.

We find instead that the AJ did not believe the selecting official held

the purported assessments of the candidates he claimed, and the AJ found

that the selecting official's explanation for choosing the selectee

was pretext to mask race discrimination. After a careful review of the

record, we discern no basis to disturb the AJ's decision.

Compensatory damages

Compensatory damages may be awarded for past pecuniary losses, future

pecuniary losses, and nonpecuniary losses that are directly or proximately

caused by the agency's discriminatory conduct. Compensatory and Punitive

Damages Available Under Section 102 of the Civil Rights Act of 1991,

EEOC Notice No. N 915.002 (July 14, 1992).<2> Pecuniary losses are

out-of-pocket expenses incurred as a result of the employer's unlawful

action, including medical and other quantifiable out-of-pocket expenses.

Past pecuniary losses are pecuniary losses incurred prior to the date of

the resolution of the damage claim. Future pecuniary losses are losses

that are likely to occur after the resolution of litigation. Nonpecuniary

losses are losses that are not subject to precise quantification including

emotional pain and loss of health.

The AJ awarded the complainant $10,000 in nonpecuniary damages.

The complainant only claimed nonpecuniary losses. The complainant was a

first line supervisor. In support of his claim for nonpecuniary damages,

the complainant testified in the 1999 EEOC hearing that because he was

not selected for promotion, he lost his desire to be a good supervisor,

was devastated and his self-esteem was badly hurt. He testified that

his marriage almost ended. He explained that he became tense, snappy

and did not say much because he kept his feelings inside, and this also

hurt his sex life and continued to do so.

In response to the question of whether his emotional injuries continued,

the complainant testified that he was harassed by the selecting official,

who was his supervisor, until the supervisor was transferred about

a year prior. In a related procedural appeal to this Commission,

the complainant claimed that after not being selected for promotion,

the supervisor wrongly accused him of destroying official documents,

wrongly moved him to a different section within the branch, and gave

him a lower appraisal rating than he earned.

The agency argues that the complainant's testimony was insufficient proof

to make an award of compensatory damages. It argues that the matter of

compensatory damages should be remanded for development of the record.

We disagree. In Weatherspoon v. USDA, EEOC Appeal No. 01966395 (March

4, 1999), the Commission awarded nonpecuniary damages based only on

written statements of the complainant. It ruled that a complainant's

own testimony, along with the circumstances of a particular case,

can suffice to sustain the burden of showing compensatory damages.

But it also ruled that the absence of supporting evidence may affect

the amount of damages deemed appropriate.

The Commission's policy is to make damage awards for emotional harm

consistent with awards in similar cases. In Pailin v. Department of

Defense (Defense Logistics Agency), EEOC Appeal No. 01954350 (January

26, 1998), the Commission awarded $2,500 in nonpecuniary damages to

a complainant who because she was denied on-the-job training suffered

from lack of motivation, diminished self-esteem, sadness, fatigue, and

weight loss. Some of the denied training occurred prior to November

21, 1991, when compensatory damages were not available.<3> In Pryor

v. United States Postal Service, EEOC Appeal No. 01961884 (February 5,

1998), request for reconsideration denied in EEOC Request No. 05980405

(August 6, 1999), the Commission awarded $5,000 in nonpecuniary damages

to a complainant who had anxiety and stress because he was not chosen

for a job. He developed tremors, lost weight, had sleep problems and

difficulty communicating with his adult children, and it was likely

the stress contributed to a mild heart attack. These symptoms were

caused by repeated rejections for rehire, but only one was found to

be discriminatory. Damages could only be awarded for the one rejection

found to be discriminatory.

After reviewing the record as a whole, the Commission finds that the

complainant sustained $2,000 in nonpecuniary damages. In arriving

at this figure, we considered the duration and severity of the harm.

Further, the complainant attributed some of his pain and suffering to

events that occurred after not being selected for promotion, matters

which are not part of the instant claim. Moreover, the emotional

injuries described are similar to those in Pailin, but unlike Pailin,

there was no corroborative evidence.

As the complainant is a prevailing party, he is entitled to additional

attorney fees, as directed below.

CONCLUSION

After a careful review of the record, the Commission REVERSES the agency's

final order and AFFIRMS the AJ's finding of discrimination. The AJ's

award of compensatory damages is MODIFIED. This matter is REMANDED to

the agency to take corrective action in accordance with this decision

and the ORDER below.

ORDER

(1) The agency must provide the complainant a check for the appropriate

amount of back pay for the period of April 14, 1996 through April 13,

1997, with interest, and any and all benefits, including any step

or incremental increases in pay, under pertinent Office of Personnel

Management Regulations, and 29 C.F.R. � 1614.501. The agency may set

off this amount with the appropriate mitigation of back pay by the

complainant. The complainant is ORDERED to cooperate in the agency's

efforts to compute the amount of back pay, interest, and benefits due,

and to provide all necessary information the agency requests to help it

comply.

(2) The agency must provide the complainant with an additional check

for nonpecuniary damages in the amount of $2,000.

(3) The agency must complete the above ordered actions within 90 calendar

days of the date this decision becomes final.

If there is a dispute about the amount of back pay, interest on back pay,

other benefits, and /or compensatory damages, the agency is ORDERED to

provide the complainant a check for the undisputed amount within the

applicable time limit set forth above. The complainant 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 paragraph entitled "Implementation

of the Commission's Decision." The complainant must send a copy of any

petition to the agency.

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 must include supporting documentation of the

agency's calculation of backpay and other benefits due complainant,

including evidence that the corrective action has been implemented.

The agency must send a copy of the report to the complainant.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Naval Aviation Depot, Cherry Point,

North Carolina 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 (H0800)

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 (K0800)

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

October 25, 2000

__________________

Date

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 Naval Aviation Depot, Cherry Point,

North Carolina facility reaffirms its commitment to comply with these

statutory provisions.

The Naval Aviation Depot supports and will comply with such Federal

law and will not take action against individuals because they have

exercised their rights under law. The EEOC found that an individual was

discriminated against in violation of Title VII when he was not selected

for promotion.

The Naval Aviation Depot is remedying the employee affected by the

Commission's finding. The ordered remedies include back pay and

compensatory damages. The Naval Aviation Depot 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.

The Naval Aviation Depot 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

1On 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.

2This guidance is on the Commission's website at www.eeoc.gov.

3Damages are not available for acts of discrimination which occurred

prior to the passage of the Civil Rights Act of 1991 on November 21, 1991.

Landgraf v. USI Film Products, 511 U.S. 244 (1994).