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).