01a50109
09-29-2005
Sharleda A. Davis v. Department of Transportation
01A50109
09-29-05
.
Sharleda A. Davis,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A50109
Agency No. 4-02-4086, 4-02-4093
Hearing No. 210-2003-06188X, 210-2003-06189X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency discriminated against her on the
bases of race (African-American), sex (female), and reprisal for prior
EEO activity when in complaint no. 4-02-4086 (4086):
complainant was subjected to less favorable terms and conditions of
employment than coworkers with respect to job assignments, opportunities
for career development and awards and recognition on an ongoing basis;
she was subjected to reprisal in that the agency, failed to initiate a
formal ethics investigation, which she requested, as there was an EEO
complaint pending on the subject matter; and
she was subjected to reprisal when: (1) she was subjected to hostile
behavior by the Project Manager; (2) an employee temporarily promoted
to a GS-14 position was made permanent in the position; (3) she was
removed from a high-profile audit and assigned to a low-profile audit;
(4) she received a performance evaluation on August 13, 2002, that
included the following language, �Sharleda will be provided training
in written communications, data collection, analysis, and performance
auditing,� thus portraying her as an incompetent and dysfunctional
auditor who could not write, collect and analyze data, or conduct
performance audits; (5) the agency failed to obtain input from her
direct supervisor regarding her performance; and (6) her request to
remove language from her performance evaluation was denied.
In complaint no. 4-02-4093 (4093), complainant alleged discrimination
based on sex (female/pregnancy), race and reprisal when:
approval of her request for advance sick leave for maternity leave was
delayed; and
from her return from maternity leave until March 8, 2003, her requests
to be assigned to an audit were denied.
Following a hearing, the Administrative Judge (AJ) found that with respect
to complaint no. (4086), complainant failed to prove discrimination
as to all issues.<1> Regarding complaint no. (4093), the AJ found
that complainant failed to show discrimination with regard to issue
#4, but proved her claim of discrimination with respect to issue #5.
Specifically, the AJ found that complainant was discriminated against
based on reprisal when from, at least, November 1, 2001, to February 7,
2002, the agency failed to assign her to an audit.
On September 9, 2004, the agency issued a final order accepting and
fully implementing the AJ's decision.
On appeal, complainant contends that the AJ erred when she found that
complainant was discriminated against for only three months. Complainant
maintains that the AJ should have included the entire 11 month period in
which she was not assigned an audit. As to all other claims, complainant
does not contest the AJ's findings of no discrimination.
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.
In this decision, the Commission will address only the issue of whether
complainant was discriminated against for three months or for an eleven
month period. Based on a review of the record in its entirety, including
consideration of all statements submitted on appeal, the Commission finds
that a fair reading of the AJ's decision, regarding the amount of time
that complainant was discriminated against when she was not assigned
an audit would include the entire 11 month period. (See AJ's decision
pages 12 -15). The Commission finds the AJ specifically referenced
the period from November 2000, until the following February 2001,
(approximately three months) and from May 20, 2001, until February 2002,
(approximately eight months) as the time period during which complainant
was not assigned an audit. The AJ repeats the 11 month time period
several times, throughout the decision. As such, the Commission finds
that the eight month period from May 20, 2001, until February 2002, was
mistakenly omitted from the AJ's Conclusions and Findings, and this time
period along with the three months already acknowledged would give a total
of 11 months that complainant was subjected to unlawful discrimination.
Accordingly, the Commission affirms the Administrative Judge's
ultimate finding, that unlawful employment discrimination was proven
by a preponderance of the evidence, is supported by the record. It is
the decision of the Commission however, to modify the AJ's decision.
The Commission finds that complainant was discriminated against for a
total of 11 months. Therefore, the file is being remanded to the AJ to
determine appropriate relief.<2>
ORDER
The following is ordered:
1. The file shall be remanded to the Administrative Judge to determine
the appropriate individual relief, if any, to be awarded the complainant,
such as compensatory damages.
The agency shall conduct training on Title VII, as amended, for the
appropriate managers and supervisors involved in denying complainant an
audit. The Commission does not consider training to be a disciplinary
action.
Within thirty (30) days, the agency shall consider taking disciplinary
action against the manager and supervisor who denied complainant's
audit requests. The agency shall report its decision to the compliance
officer. 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. If these individuals have left the agency's
employ, the agency shall furnish documentation of his/her departure date.
The agency must post copies of the attached notice. Copies of
the notice, after being signed by that agency's duly authorized
representative, shall be posted and maintained for 60 consecutive days,
in conspicuous places at the Chicago facility, including all places
where notices to employees and applicants for employment are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other materials.
POSTING ORDER (G0900)
The agency is ordered to post at its Chicago, Illinois 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
____09-29-05______________
Date
1 With respect to issue #2, prior to the
hearing, the AJ granted the agency's motion for summary judgment regarding
this issue only.
2It is not apparent from the file that the complainant ever provided
the AJ the evidence sought in the AJ's August 5, 2004, decision as set
forth in the section entitled �Relief,� but instead appealed directly to
the Commission in order to enlarge the period in which discrimination
was found. Accordingly, we find that remanding this case to the AJ
for a determination on relief is appropriate, especially in light of
our finding that the period of discrimination lasted 11 months, which
could affect any potential compensatory damages claim.