01972258
04-11-2000
Terrence Flythe, Complainant, v. Louis Caldera, Secretary, Department of the Army Agency.
Terrence Flythe v. Department of the Army
01972258
April 11, 2000
Terrence Flythe, )
Complainant, )
) Appeal No. 01972258
v. ) Agency No. 94-AR-053-E
) EEOC No. 120-94-5494X
Louis Caldera, )
Secretary, )
Department of the Army )
Agency. )
____________________________________)
DECISION
Complainant timely appealed the agency's final decision that it had not
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq., and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The Commission accepts this appeal in accordance with EEOC Order
No. 960.001.<1>
INTRODUCTION
Complainant filed a formal EEO complaint alleging that the agency
discriminated against him on the basis of race (Black) and physical
disability (stutter), when: (1) he was not detailed and later nonselected
for the supervisory WG-10 Electronics Mechanic position throughout the
period of March 1990 through September 1992; (2) he was not selected (or
converted to full time permanent status) for the position of Small Arms
Repairer, WG-6 in September 1993; and (3) the agency employed a pattern
and practice of converting white, non-disabled employees to permanent
status over a seven year period during which complainant, a Black,
disabled, temporary employee, was not afforded the same opportunity.
After conducting an investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). On October 7, 1996, the AJ issued a
recommended decision finding that complainant was discriminated against
on the basis of race and perceived disability, as alleged.
From 1986 until 1993, complainant worked as a temporary WG-8 Electronics
Mechanic, in the Communications Section, of the Services Branch, Logistic
Division, Directorate of Support (DOS). The record reveals that from
1985 until late 1991, the DOS underwent a commercial activities (CA)
study, wherein employees worked as temporary employees. When the study
ended in late 1991 or early 1992, the DOS began converting the temporary
employees to permanent employee status. During complainant's employment
with the agency, all temporary employees who remained with the agency
were ultimately converted to permanent status, except complainant.
The record revealed that all employees needed to convert to permanent
status by the end of FY 1993. When complainant failed to convert to
permanent status, he was terminated on September 23, 1993.
AJ'S RECOMMENDED DECISION
Issue 1: Nondetail and Nonselection for WG-10 Electronic Mechanic Position
The record reveals that in or about May 1987, Complainant's first
line supervisor (S1)(white, no disability), requested that complainant
conduct interviews for a WG-8 Electronics Mechanic position within the
Communications Section. That year, complainant recommended Comparative
1 (white, no disability), for the position. Comparative 1 was then
hired for the position, and trained by complainant. Comparative 1
and complainant both testified that once Comparative 1 was hired, S1
began taking Comparative 1 to meetings and directing inquiries to him,
as opposed to complainant.
In 1988, complainant spoke with S1 and expressed an interest in an
upcoming opening for a WG-10 Electronics Mechanic position in the shop.
The record reveals that S1 responded to complainant's inquiry by
reporting that there was no need to fill the position at that time.
On April 17, 1990, S1 announced that he needed someone to fill the
WG-10 position. In August 1990, S1 detailed Comparative 1 into the
position on a temporary basis with no increase in pay. S1 stated that
he detailed Comparative 1 into the position because of his punctuality,
his "good attitude," and his availability at work. At the hearing, S1
testified that Comparative 1 was more qualified for the position than
complainant, despite the fact that complainant had previously acted in
the position without complaints, and Comparative 1 had not.
On August 9, 1990, Comparative 1 was officially selected for the WG-10
Electronics Mechanic detail. As reason, S1 noted the following merit
factors: "experience, self confidence, communication capabilities and
related accomplishments." Then, on September 6, 1990, Comparative 1 was
converted from detailee to promotee into the WG-10 Electronics Mechanic
temporary position.
The AJ found that in or about November 1992, complainant's second
line supervisor (S2)(white male), asked Comparative 1 if he would like
to run the shop as the Stock Handling Foreman, after S1's retirement.
Comparative 1 was unofficially detailed into this position well before a
vacancy announcement was issued. Soon after his acceptance, Comparative
1 began spending more time away from the Communications Section, and
spent more time with S1, "trying to get a hold � get a handle on what
[S1] did." The AJ noted that testimony corroborated the fact that during
this time, Comparative 1 had been groomed for the WG-10 Electronics
Mechanic position, as well as for S1's position. After Comparative
1's detail into the Stock Handling Foreman position, S2 converted
Comparative 1 to a permanent WG-10 Electronics Mechanic position,
although he was performing the duties of the Stock Handling Foreman.
As such, Comparative 1 was no longer a temporary employee.
The AJ found that complainant had established a prima facie case
of discrimination based on both disability and race. With respect
to his disability, the AJ found in his RD that complainant was a
"qualified individual with a disability," in that the agency regarded
him as an individual with a disability, based upon its perception of
complainant's speech impediment when it made employment decisions.
Specifically, the AJ found that the agency regarded complainant as
having a disability which limited his major life activity of working
(communicating in the workplace) and speaking. For instance, although
the AJ noted that complainant's speech had improved since he began
speech classes, S2 testified that complainant's "moderately severe
stuttering problem" made it difficult to communicate with customers.
S1 testified that complainant's stuttering problem bothered him to
a certain degree, and he was sure that it bothered others as well.
For instance, S1 testified that one of the reasons complainant was
not chosen for the WG-10 Electronics Mechanic detail and permanent
Electronics Maintenance position was due to communication problems.
The AJ also found that complainant was a qualified individual with a
disability in that testimonial and record evidence demonstrated that
complainant performed his duties in a highly successful manner.
As for complainant's race discrimination claim, the AJ found that
complainant established a prima facie case, despite the fact that
complainant had not applied for the WG-10 Electronics Mechanic permanent
position, since S1 knew complainant was interested in the position.
Furthermore, the AJ noted that the manner in which the WG-10 Electronics
Mechanic vacancy announcement was issued was suspect. Specifically,
Comparative 1 testified that he applied for the position, while he was
detailed into the position, after seeing the vacancy announcement come
through "distribution." Comparative 1 admitted that it was possible
complainant did not see the vacancy announcement, and that he never
discussed the vacancy announcement with complainant.
Furthermore, the AJ found that complainant had proven that the agency's
reasons not detailing or selecting him for the WG-10 Electronics
Mechanic position, were pretexts for discrimination. Specifically, the
AJ found that complainant was objectively more qualified for the position
than Comparative 1. Furthermore, the AJ found that S1's assertion that
complainant's punctuality was an issue in the decision not to detail him,
and later not select him for the position was also pretextual in light
of testimony which revealed that complainant had been given express
permission by the prior WG-10 Electronics Mechanic, with S1's consent,
to arrive 10-15 minutes late when he was required to drive his specially
disadvantaged sister to her vocational training. The AJ also found that
it had insufficient record evidence to support its contention that they
had counseled complainant regarding his punctuality and availability.
Indeed, S1 testified that, "in all truthfulness, there were times
that [complainant was] away from the shop, taking care of business."
Finally, the AJ found that S1's testimony that complainant had an
"attitude" was pretext for discrimination. Specifically, the AJ found
that his criticisms were in marked contrast with S1's official praise of
complainant in his June 1992 performance appraisal, wherein he stated,
"[complainant's] pleasant personality, unassuming manner, and in-depth
electrical knowledge has been invaluable to the branch."
As further evidence of pretext, the AJ found that the agency's detail and
later permanent selection of Comparative 1 was "rife" with preselection in
that Comparative 1 had benefited from a noncompetitive temporary detail,
and was groomed by S1 for the position. Finally, the AJ found that S1's
discriminatory motive contributed to complainant's nonselection for
the detail and permanent selection for the WG-10 Electronics Mechanic
position. For instance, testimony revealed that S1 had made derogatory
comments, which included, among others, referring to complainant and
other Black employees as "boy", and referring to another Black employee
during a birthday party by saying, "[d]ance for me, boy!". In sum,
the AJ found that complainant had proven, by a preponderance of the
evidence, that the agency's reasons for its failure to select him for a
detail for a permanent position as a WG-10 Electronics Mechanic, were
pretexts for discrimination.
Issue Two: Nonselection (and nonconversion to permanent, full time
status) of Complainant to the WG-6 Small Arms Repairer position in
September 1993
S1 retired in November of 1992, and as a result, Comparative 1 became
complainant's new supervisor. The record further reveals that in early
1993, after a reorganization, the Logistics Division came under the
direction of the Lt. Colonel (White female, no disability). At this
point, complainant and one other temporary worker (Comparative 2)(White
female, no disability) were the only temporary workers who had not been
converted to permanent status at the facility.
Complainant testified that in June 1993, Comparative 1 asked him if he was
interested in taking a WG-6 Small Arms Repairer position. Complainant
initially responded that he would not be interested in the position
because it would mean he would have to take a downgrade and loss in pay
from his WG-8 Electronics Mechanic position. At this time, complainant
did not know the status of the conversion for his WG-8 Electronics
Mechanic position. However, complainant testified that during the
summer of 1993, he clarified his position, and told Comparative 1 that
he would take the job if it meant that he would otherwise be terminated.
In or about August or September 1993, the Lt. Colonel called a meeting
between complainant, Comparative 1, and Comparative 2, who was the only
other remaining temporary employee. During the meeting, the Lt. Colonel
told complainant and Comparative 2 that she might not be able to preserve
their jobs, since they might not be converted to permanent status and
would therefore be terminated. Complainant testified that after this
meeting, he called and visited the personnel office to inquire about
vacancies. However, none were available during that time.
Complainant testified that also in August 1993, Comparative 1 told
complainant to make sure that his answering machine at home was working
in case he needed to give him information about a vacancy announcement.
Furthermore, he told complainant not to travel out of town on leave,
and to check the VRA board at the Oyster Point Civilian Personnel Office.
Complainant testified that he followed Comparative 1's advice, however,
he never saw a vacancy announcement during this time.
The record reveals that complainant and Comparative 2, the only remaining
temporary workers, needed to be converted by the end of the fiscal year.
As such, Comparative 1 submitted paperwork to convert complainant's WG-8
Electronic Mechanic temporary position to permanent status, during the
week of September 13, 1993. On September 14, 1993, complainant again
told Comparative 1 that he was interested in the WG-6 Small Arms Repairer
position if it meant he would otherwise be terminated. Comparative 1
told complainant that he would tell the Lt. Colonel if the matter came up.
On September 23, 1993, an employee (white, no disability) from the stopper
list<2> was selected for complainant's WG-8 Electronics Mechanic position,
and as a result, complainant was terminated. On September 24, 1993,
after contacting an EEO counselor for the subject complaint, complainant
visited the Personnel Office at Oyster Point to inquire about vacancies.
There he was told that there was a vacancy announcement for a WG-6 Small
Arms Repairer position, but since the office closed in fifteen minutes,
he only had that much time to complete his SF-171 and KSAs.
Comparative 2, who had already been performing the duties of the Small
Arms Repairer position for approximately eleven months, was selected on
September 27, 1993, through a VRA appointment. As such, she was converted
to permanent status. The Small Arms Repairer position was also announced
through a Merit Promotion Announcement from October 4 through October
8, 1994. When complainant applied for the position through the Merit
Promotion Announcement, he was told it had already been filled.
In his RD, the AJ found that, despite the fact that complainant did
not expressly apply for the Small Arms Repairer position, he had in fact
established a prima facie case, in light of the fact that he had expressed
to Comparative 1, now complainant's supervisor, that he was interested
in the position, and Comparative 1 had told complainant that he would
let him know when the vacancy announcement came out and to stay by his
phone in case he had to contact him. Indeed, Comparative 1 admitted
that he felt responsible to let complainant know such information.
Instead, the AJ found that Comparative 2 had received more information
regarding the opening date of the vacancy announcement, and was informed
that the "stopper list" was clear for the position. The AJ found that
complainant had not been provided such assistance. In sum, the AJ found
that Comparative 2 received more favorable treatment with respect to
information helpful to the application process, such that an inference
of discrimination was established.
The AJ further found that Comparative 1 and the Lt. Colonel testified
as to the reasons complainant was not selected for the WG-6 Small
Arms Repairer detail and subsequent permanent position. Specifically,
Comparative 1 testified that complainant neither expressed an interest,
nor applied for the detail or permanent selection. Testimony revealed
that even if complainant had applied, Comparative 2 was a five point
veterans's preference, and had been performing the duties of the position
for eleven months. Furthermore, Comparative 1 testified that complainant
was not as qualified as Comparative 2 for the Small Arms Repairer detail.
As reason, he testified that complainant was needed as the last remaining
electronics worker in the Communications Section.
Although the agency had articulated legitimate, nondiscriminatory
reasons for its actions, the AJ found that complainant established that
the agency's reasons were pretexts for discrimination. Specifically,
the AJ found that Comparative 2, who, along with complainant was the
only remaining temporary worker yet to be converted, was provided with
more information regarding the fact that the stopper list was clear,
as well as the timing of the vacancy announcement.
The AJ also found that the agency's argument with respect to Comparative
2's veteran's preference was pretext. Specifically, the AJ found that
the agency had failed to establish that Comparative 2 did in fact have a
veteran's preference.<3> Furthermore, the AJ found that one of the other
eligibles on the selection certificate (Black, unknown disability) had a
ten point preference. The AJ thus questioned why, if the agency had been
concerned about veteran's preference, it selected the individual with the
five point preference over the individual with the ten point preference.
Furthermore, the AJ found that the agency's argument that Comparative
2 was more qualified for the position was pretext in light of the fact
that she had been assigned the duties eleven months before the vacancy
announcement was issued. The AJ found that even though complainant was
the last remaining electronics worker, he could have also been assigned
the Small Arms Repairer duties in order to serve as a basis for later
selecting him for the position. According to the AJ's findings, the
agency was aware that complainant's position was more likely to be on
the stopper list, and thus more susceptible to termination. In sum,
the AJ found that complainant had proven that he was discriminated
against when he was not selected for the Small Arms Repairer position,
and later, not converted to permanent status.
Issue 3: Pattern of Converting White, Nondisabled Temporary Employees
to Permanent Status while Complainant (Black, Disabled) was not so
Favorably Treated
The AJ found that the evidence established that a continuing violation
existed from 1990 through 1993, since the agency had engaged in a pattern
and practice of discriminatory treatment wherein similarly situated
White, nondisabled employees were converted to permanent status, while
complainant remained a temporary employee and was ultimately terminated.
The AJ found that conversions of temporary employees occurred despite an
intermittent hiring freeze, as well as the requirement for conversions
to pass the Priority Placement Program or stopper list.
Specifically, the AJ found that prior to May 1993, agency officials
had engaged in a practice whereby they could bypass the stopper list by
contacting personnel in anticipation of requesting a vacancy announcement
in order to determine if the stopper list was clear for the position.
If the stopper list was clear, management would proceed and request that
the conversion be effectuated. However, if the stopper list was not
clear, they would either postpone or cancel the pending action until the
stopper list was clear. This practice enabled the temporary employee to
remain in the position, and not be terminated. The AJ found that although
this method, as well as other methods of circumventing the stopper list
were performed, they were not done for the benefit of the Black employees.
More specifically, it was not done for the benefit of complainant, who
had been a temporary worker for the agency for seven years. The result
was complainant's termination when an individual from the stopper list
(White, no disability) was selected for complainant's position at the
end of the fiscal year.
The record reveals that of the fourteen temporary employees converted,
three were Black. Furthermore, the information the agency provided
regarding those Black employees who were not converted to permanent
status indicated that they had either resigned, left for permanent work
elsewhere, or were terminated.
In sum, the AJ found that complainant was discriminated against on the
basis of race and disability, as alleged. After a reconvened hearing on
compensatory damages, the AJ recommended back pay, compensatory damages,
attorney's fees, and the posting of a notice as corrective relief.
FINAL AGENCY DECISION
On December 2, 1996, the agency issued a final decision rejecting the
AJ's RD. Instead, it found that complainant had failed to establish
a prima facie case on either basis, in light of the fact that he had
not applied for the subject positions. Furthermore, it found that
complainant was not perceived to be an individual with a disability.
Assuming that complainant had raised an inference of discrimination,
the agency found it had articulated legitimate, nondiscriminatory
reasons for its actions, which complainant had not proven to be pretext
for discrimination. The agency did find, however, that agency officials
had in fact manipulated the personnel system to achieve their own ends,
but not for discriminatory reasons. Complainant appealed the final
decision and submitted a lengthy brief. The agency has not filed any
contentions in response to complainant's appeal.
ANALYSIS AND FINDINGS
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's
recommended decision sets forth the relevant facts and properly analyzes
the appropriate regulations, policies and laws.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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). Although we agree with the
AJ's findings and legal conclusions, we disagree with the amount of
compensatory damages. We also find it necessary to address some of the
agency's findings raised in its final decision.
The agency argued in its FAD that complainant failed to establish a prima
facie case in that he failed to apply for the positions in question,
and failed to take advantage of Comparative 1's offer of the Small
Arms Repairer position in June 1993. Although the requirements for a
prima facie case vary under the facts of a case, generally the agency's
argument is persuasive. If a complainant fails to apply for a position,
he will not be on the agency's list of eligible candidates, and if he
is not on the agency's list, he cannot be considered for appointment.
Absent extreme circumstances, a candidate who does not follow the
correct application procedures may be eliminated from consideration
for the position without raising an inference of discrimination. Tice
Ozinga v. Department of Veterans Affairs, EEOC Request No. 05910416 (May
13, 1991). However, such is not the case where, as here, the agency's
discriminatory actions contributed to complainant's failure to apply
for the positions in question.
In the Ozinga case, the Commission concluded that, "the weight of
the evidence indicates that the agency seemed to take every action
to inhibit complainant's consideration for the vacancy, while doing
everything possible to allow the selectee to be considered." Id. at 4.
As such, the Commission found that although the complainant in that case
had not correctly applied for the subject position, the evidence was
sufficient to raise an inference of discrimination. In the present case,
the AJ similarly found, and we find insufficient evidence to disagree,
that Comparative 2 was given an advantage when applying for the position
which ultimately led to her conversion from temporary to permanent status.
First and foremost, Comparative 2 had been placed into the Small Arms
Repairer detail by Comparative 1 some eleven months before the vacancy
announcement came out for the position. Comparative 1 testified
to the fact that he knew that complainant and Comparative 2 were
the last remaining temporary workers yet to be converted, but there
was only one position available, the Small Arms Repairer position.
Testimony revealed that "everybody knew" that the Small Arms Repairer
positions were historically not on the stopper list. As Comparative
1 was the selecting official for the Small Arms Repairer position, he
must have known that placing Comparative 2 into the position would place
her at a great advantage in the ultimate selection process. Indeed,
the selection certificate for the Small Arms Repairer permanent position
reads that she was selected because she was already performing the duties
of the position.
When complainant was told about the availability of the Small Arms
Repairer detail in the Spring or Summer of 1993, it was without any
knowledge as to the status of his own WG-8 Electronics Mechanic position.
Reasonably, he told Comparative 1 that he wished to retain his WG-8
grade, as opposed to taking a job with a lower pay and grade. Testimony
from complainant's third line supervisor revealed that in June 1993,
complainant "had nothing to worry about" with respect to his conversion.
In the meantime, Comparative 2 testified in her deposition that
Comparative 1 and the Lt. Colonel told her that the vacancy for the Small
Arms Repairer position would probably open up in September and that she
should apply for it. The Lt. Colonel corroborated this testimony, and
testified that she may have told Comparative 2 to apply for the position.
Complainant testified that he was told by Comparative 1 that he would let
him know when the vacancy would come out and to not go out of town while
on leave so that he could come in and apply for the position if need be.
Complainant testified that he was told by Comparative 1 to check for
vacancies at the personnel office, which he did.
In the summer of 1993, complainant told Comparative 1 to let the
Lt. Colonel know that he was interested in the Small Arms Repairer
position. Comparative 1 testified that he did not tell the Lt. Colonel
this information because, by this time, it was, "already too late,"
despite the fact that the vacancy had not yet opened, and that he was
the selecting official for the position.
As such, we find that complainant did express an interest in the Small
Arms Repairer position, and such interest was communicated to Comparative
1 before the selection occurred and in time for Comparative 1 to assist
complainant, as he had suggested he would. Comparative 1, himself,
testified that he felt responsible to assist complainant. By the time
complainant did go to the Personnel Office at Oyster Point to check
the vacancy announcements on September 24, 1993, he was told the office
closed in fifteen minutes and he only had that much time to fill out his
SF-171 and KSAs. We find complainant did in fact attempt to apply for
the position, but the agency's actions prevented him from applying and
fairly competing with Comparative 2, who had been performing the duties
of the position for several months. We agree with the AJ's finding that
complainant did not seek out specific information about the vacancy until
it was too late, due to his reliance on the assurances of Comparative 1.
Therefore, we find that there was sufficient evidence to support the
AJ's finding that Comparative 2 was afforded more favorable treatment
with respect to her competition for the Small Arms Repairer position,
such that an inference of discrimination has been established.
We also find that the agency's disagreement with the AJ's findings
about the manner in which the vacancy announcements were issued is
without merit. Comparative 1 testified that the vacancy announcement
for the WG-10 Electronic Mechanic position came through "distribution"
and that complainant probably did not see it. Furthermore, the AJ
credited the testimony of two other employees (Black) which indicated that
numerous procedural irregularities existed with respect to the posting of
vacancy announcements. Specifically, one of those employees testified
that preselection occurred often, and that S1 held off when issuing a
vacancy announcement in order to avoid the stopper list, and get the
individual he wanted into the position. As noted, the agency admits to
the manipulation which existed in the personnel system at the facility.
Based upon a review of the record, there is substantial evidence to
support the AJ's credibility findings, which are entitled to great weight.
See Universal Camera Corp. v. National Labor Relations Board, supra.
With respect to Issue 3, the agency argued that the AJ miscalculated
the number of temporary employees converted to permanent status who
were minorities and/or disabled, and disagrees with the AJ's findings
that there were multiple exceptions to the stopper list. We are not
persuaded by the agency's calculations which rely on the notion that
veteran's preference automatically qualifies an individual under the
Rehabilitation Act. We note that the agency failed to present any
evidence indicating that any of the other temporary employees listed
were in fact disabled as defined under the Rehabilitation Act.
We also agree with the AJ that exceptions to the stopper list existed,
and were made for the benefit of White employees, but not for Black
employees, such that a pattern of discriminatory conversions occurred.
Despite the fact that the agency denies discriminating against Black
employees, it did admit in its FAD that agency officials, "attempted
to manipulate the personnel system to achieve their ends." FAD at 39.
Specifically, the AJ found that the agency bypassed the stopper list by
detailing an individual into the position prior to the selection; thus it
could argue that the individual was already encumbering the position.
Furthermore, the AJ found that the agency could bypass the stopper
list by requesting permission from the Zone Coordinator, although this
was not done for complainant's benefit. The record also reveals that
some employees were converted into permanent positions because they had
"special skills."
As noted above, the record reveals a pattern whereby exceptions and
extra assistance were granted for White employees, but not for Black
employees, who either left the agency, or sought employment elsewhere.
Although complainant did not leave the agency for other employment during
this time, he was not granted the same consideration as White employees
due to a discriminatory motive which existed throughout complainant's
chain of command at the agency against complainant and other Black
employees. Complainant's third line supervisor testified that, although
complainant was an "outstanding" worker, he also believed there was a
distinction between "someone who is a good worker and an individual who
has the potential to develop for higher graded positions." H.T. at 79.
Complainant's first line supervisor (S1) was noted to call Black employees
"boy" on several occasions, and also asked complainant if he was "still
trying to get edumacated." H.T. at 196. S1 did not unequivocally deny
these as well as other statements. Accordingly, we agree with the
AJ's ruling that complainant has presented sufficient evidence which
has established by a preponderance of the evidence that the agency's
reasons for its actions are pretexts for race discrimination.
In light of the statements referenced above regarding S1 and S2's
perception of complainant's communication problem, we find there is
substantial evidence in the record to support the AJ's finding that
the agency regarded complainant as an individual with communication
difficulties that substantially limited him in the major life activity of
speaking. Indeed, S1 openly indicated that communication was one of the
reasons complainant was not selected for the WG-10 Electronics Mechanic
position, and noted the speech impediment "bothered" him. H.T. at 298.
Therefore, we find substantial evidence in the record supports the AJ's
finding of disability discrimination.
CORRECTIVE RELIEF
Compensatory Damages
Legal Standard for an Award of Compensatory Damages
Section 102(a) of the 1991 Civil Rights Act ("CRA") authorizes an
award of compensatory damages for all post-Act pecuniary losses,
and for nonpecuniary losses, such as, but not limited to, emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of
life, injury to character and reputation, and loss of health. In West
v. Gibson, 527 U.S. 212 (1999), the United States Supreme Court found that
Congress afforded the Commission the authority to award such damages in
the administrative process. The CRA authorizes an award of compensatory
damages as part of make-whole relief for discrimination. Section
1981a(b)(3) limits the total amount of compensatory damages that may be
awarded each complaining party for future pecuniary losses, emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other nonpecuniary losses, according to the number of individuals
employed by the respondent. The limit for a respondent who has more than
500 employees is $300,000.
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in EEOC
Notice No. N-915.002, Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly
stated, the complainant must submit evidence to show that the agency's
discriminatory conduct directly or proximately caused the losses for
which damages are sought. Id. at 11 - 12, 14; Rivera v. Dept. of the
Navy, EEOC Appeal No. 01934157 (July 22,1994). The amount awarded should
reflect the extent to which the agency's discriminatory action directly or
proximately caused harm to the complainant and the extent to which other
factors may have played a part. EEOC Notice No. N-915.002 at 11-12.
The amount of non-pecuniary damages should also reflect the nature and
severity of the harm to the complainant, and the duration or expected
duration of the harm. Id. at 14.
In Carle v. Dept of the Navy, the Commission explained that "objective
evidence" of non-pecuniary damages could include a statement by the
complainant explaining how he or she was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993). Statements from others,
including family members, friends, and health care providers could
address the outward manifestations of the impact of the discrimination on
the complainant. Id. The complainant could also submit documentation
of medical or psychiatric treatment related to the effects of the
discrimination. Id. We note that a complainant is not required to submit
evidence from "a certified medical practitioner recognized by the agency"
in order to establish entitlement to compensatory damages.
The Commission agrees with the agency's argument following the hearing
that compensatory damages are not available for conduct that occurred
prior to the effective date of the Civil Rights Act of 1991, November 21,
1991. Therefore, in this case, the recovery of compensatory damages is
limited to those damages shown to be causally connected to the incidents
raised in complainant's complaints which occurred from November 21,
1991 until September 23, 1993, the date of complainant's termination.
Complainant's Evidence of Injury and Causation
In the present case, the AJ held a reconvened hearing on compensatory
damages on September 5, 1995. Furthermore, complainant and his witnesses
submitted affidavits detailing complainant's emotional distress.
In his decision, the AJ found that through the testimony of complainant,
complainant's mother and wife, as well as the testimony of complainant's
Minister, the evidence of record established that complainant suffered
anger, pain, frustration, as well as severe anxiety about his financial
predicament and the need to support his family. In addition, the AJ
found that following his termination, complainant testified that he would
stay up late pondering his situation, experienced increased tension
within his marriage, suffered regression of his speech impediment,
and experienced increased irritability and nervousness. Furthermore,
testimony revealed that complainant experienced loss of enjoyment in
going in to work, loss of enjoyment of providing for his family, stress
in borrowing money from family members, and crying episodes.
The agency has not argued, and the evidence does not reveal, that
complainant suffered from any mental or emotional conditions prior
to his employment with the agency. In addition, while complainant
stated that he experienced various symptoms during the hearing itself,
complainant would not be entitled to compensatory damages caused by the
stress of participating in the EEO process. See Appleby v. Department of
the Army, EEOC Appeal No. 01933897 (March 4, 1994) (compensatory damages
were added to statutes to address the agency's treatment of an employee,
not how the agency litigates an EEO complaint during the administrative
process). Nevertheless, the Commission finds that the record supports
complainant's claim for non-pecuniary compensatory damages resulting
from the issues in question for embarrassment, stress, mental anguish,
loss of enjoyment of life, and losses associated with other disruptions
of his marital and family relationship.
Having determined that complainant proved that the above-described
emotional distress and related symptoms were solely caused by the failure
to be converted to permanent status which led to his ultimate termination,
we must next determine the amount of compensatory damages to be awarded
for that harm.
Calculation of Damages Payable
Past and Future Pecuniary Damages
In his RD, the AJ noted that complainant testified as to certain pecuniary
losses attributable to the discrimination. Specifically, he noted a
loss of a savings account due to his eight month unemployment following
his termination; withdrawal from two college courses totaling $357.00;
loss of his G.I. Benefits; as needed loans taken out from his mother's
retirement savings for expenses; gasoline and copying expenses related
to job hunting; costs related to maximizing his credit card limits; as
well as $2,817.66 due to the birth of his daughter on August 28, 1995.<4>
In the AJ's RD, he recommended that complainant be awarded $1,000 for
job-hunting and re-employment costs related to gasoline and copying
expenses. He noted that amounts claimed by complainant as needed for
loans are considered already recovered as back pay. However, the AJ
also recommended that if complainant's reinstatement does not include
retroactive health benefits coverage, he should also receive $2,817.66
for medical expenses related to the birth of his daughter as pecuniary
damages, since these expenses would have otherwise been covered by health
insurance, as a permanent employee of the agency.
We agree with the AJ that complainant is entitled to reimbursement for
his job-hunting expenses related to copying and mailing resumes, although,
no specific documentation, such as receipts relating to these expenses is
contained in the record. Therefore, in accordance with the order below,
the agency shall seek documentation from complainant relating to these
expenses and reimburse complainant for all proven expenses.
However, with respect to the AJ's recommendation regarding costs related
to job-hunting expenses, we find sufficient evidence in the record
that complainant incurred expenses related to gasoline expenses and
traveling costs. We find that complainant documented only approximately
500 miles related to his re-employment. We take official notice that
in 1993, the federal government provided its employees 25 cents per
mile when conducting official business in a personal automobile. See,
Santiago v. Army, EEOC Appeal No. 01955684 (October 14, 1998). As such,
we find the AJ's award of $1,000 excessive. Rather, after a review of
complainant's documentation, we find that he incurred $125.00 related
to travel expenses.
Complainant has not requested, nor has he provided any evidence in
support of, future pecuniary damages.
Although the AJ discussed complainant's claim for monetary damages
relating to the birth of his daughter in the context of compensatory
damages, we do not find the record supports a connection between
the birth of complainant's child and the discriminatory actions of
agency officials. Accordingly, complainant is not entitled to any past
pecuniary damages related to these medical expenses. However, we do
find that these medical expenses are part of complainant's remuneration
as back pay of benefits, which will be discussed below.
Non-Pecuniary Damages
In his decision, the AJ found that $35,000 was an appropriate amount
to compensate complainant for enduring the effects of intentional
discrimination.
In determining the amount of a compensatory damages award, we are guided
by the principle that the award is limited to the sums necessary to
compensate him for the actual harm caused by the agency's discriminatory
action. See EEOC Notice No. N-915.002 (July 14, 1992) at 13.
In order to provide a reasonable award of compensatory damages for
emotional distress and related symptoms caused by the discriminatory
acts, we first look to the nature and severity of complainant's emotional
distress and related symptoms. We consider fairly recent jury and court
awards in cases in which the harm to the plaintiff was similar in nature
and severity to complainant's emotional distress and related symptoms.
We also consider the duration and expected duration of complainant's
emotional distress and related symptoms. We consider the extent to
which complainant's emotional distress and related symptoms were caused
by factors other than the discriminatory act of the agency. See EEOC
Notice No. N-915.002 (July 14, 1992) at 10, n.13, 11-12, 14. Finally,
after considering all of these factors, we decide a reasonable dollar
value to compensate complainant for that portion of his emotional distress
and related symptoms that were caused by the agency's discrimination.
In support of our award, we note that the present case does not solely
deal with a nonselection for a position. Indeed, the case involves a
series of nonselections which culminated in complainant's failure to
convert to permanent status and his ultimate termination from his seven
year temporary employment with the agency. In addition, complainant
watched as Comparative 1, who complainant himself hired, was groomed
for positions, promoted above him, and eventually converted to permanent
status, whereas complainant was not converted, but rather terminated.
In that regard, several Commission decisions have awarded compensatory
damages which involved a pattern or series of discriminatory events
over time, and have involved emotional distress symptoms similar to
complainant's. Feris v. Environmental Protection Agency, EEOC Appeal
No. 01983167 (September 18, 1998)($35,000 for anger, anxiety, damage
to self-esteem, and sleeplessness due to agency's repeated failure
to provide sign language interpreter as an accommodation); Willena
v. Department of Interior, EEOC Appeal No. 01961812 (June 18, 1992)
($35,000 for frustration and anger which led to irritability, due to race
and reprisal discrimination when she received unfair work assignments,
a fully successful performance rating and subjected to harassment);
Olsen v. Department of Defense, EEOC Appeal No. 01956675 (July 29, 1998)
($16,000 for depression, anxiety, sleep deprivation, worry, marriage and
family problems, due to a pattern of reprisal and age discrimination, when
he was given a low rating on his performance evaluation which downgraded
his promotional potential, and was not selected for a position).
The present case can be distinguished from Commission decisions which
have not involved a series of events, but rather one or two events,
such as a nonselection or a low rating on a performance appraisal.
Lucious Pryor v. United States Postal Service, EEOC Appeal No. 01961884
(February 5, 1998) ($5,000 for trouble sleeping, anxiety and lost weight
for nonselection and failure to reinstate due to discrimination based
on mental disability); Dunita Harris v. Department of Agriculture,
EEOC Appeal No. 01966746 (December 11, 1998) ($2,000 for stress,
crying episodes, low self-esteem due to nonselection); Rountree
v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995)
($8,000 for depression, feelings of inadequacy, increased irritation,
decreased enjoyment of life due to lowered performance rating and loss
of bonus pay).
There is no evidence that complainant has suffered from a pre-existing
mental or emotional condition prior to his employment with the agency.
Furthermore, there is no evidence that complainant will be suffering
from the emotional distress caused by the agency into the future.
In support of this award, we note that although complainant's problems
with S1, which led to Comparative 1's promotion over complainant and
his ultimate conversion began as early as 1990, his injury is mainly
attributable to actions which also occurred after the effective date of
the Civil Rights Act of 1991. The AJ's $35,000 compensatory damage award
incorrectly covered pre-Act conduct. In view of this, we find an award of
$30,000 as non-pecuniary damages entirely appropriate in order to remedy
complainant for the emotional distress caused by the discriminatory acts
of the agency that occurred following the Civil Rights Act of 1991.
As discussed above, after an examination of the work environment
as a whole, the injury sustained by complainant resulted in anger,
pain, anxiety about his family's financial predicament, insomnia,
irritability, crying, as well as some weight gain. Complainant also
testified that he would have seen a psychiatrist had it not been for his
financial predicament. The AJ found that complainant's wife credibly
testified that complainant's speech impediment worsened, that he could
not concentrate on his college courses, and that there was an increased
strain on their marriage. Complainant's mother testified that complainant
became depressed and more argumentative, and that she needed to lend
her son money from her retirement savings in order for him to pay for
the family's finances. Finally, complainant's Minister testified that
he counseled complainant due to the events described above, and noted
that complainant became pressured, depressed, confused and anxious.
Accordingly, we find that the evidence presented by complainant supports
his claim for compensatory non-pecuniary damages in the amount of $30,000.
Additional Equitable Relief
In his RD, the AJ found that in order to remedy complainant for the
effects of the discrimination, the agency should offer complainant
reinstatement to agency employment and a retroactive promotion to the
permanent position of a WG-10 Electronics Mechanic, or a comparable
position. Furthermore, complainant should receive appropriate back pay,
including all increases in pay and step increases, as well as all other
promotions he would have received absent discrimination. In addition,
complainant should receive any other benefits of employment including
seniority, health insurance, and leave. Finally, the AJ awarded
attorney's fees and ordered that the agency post a notice. We agree
with the AJ's recommendation in this regard.
The Commission has held that an award of back pay should compensate a
prevailing complainant for loss of health insurance coverage by either:
(1) reimbursing him for health insurance premiums paid to continue in
an agency-sponsored insurance plan or to secure alternative coverage;
or (2) paying him for uninsured medical expenses incurred during the
relevant period up to the amount the agency would have contributed to
his health insurance premiums. Harrington v. Tennessee Valley Authority,
EEOC Petition No. 04920010 (December 10, 1993). As such, the agency
is required to pay, as part of its back pay award, the medical expenses
complainant incurred from the time he was terminated until the time he
was able to secure health insurance.<5> See Clyde Huyck v. Department
of Defense, EEOC Request No. 05980159 (July 10, 1998). Although the
AJ's decision references that complainant incurred $2,817.66 in medical
expenses related to the birth of his daughter, we do not find such
documentation contained in the record. Therefore, in accordance with
the Order below, the agency shall seek documentation from complainant
relating to these medical expenses and reimburse complainant for all
proven medical expenses.
CONCLUSION
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the final agency decision which concluded that
no discrimination had occurred. In order to remedy complainant for its
discriminatory actions, the agency shall comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall reinstate complainant to the permanent position
of WG-10 Electronics Mechanic, or a substantially equivalent position,
retroactive to January, 1992, the approximate date which most temporary
workers were converted to permanent status.
The agency shall issue a check to complainant in the amount of $30,125.00,
for both past pecuniary and non-pecuniary compensatory damages, within
sixty (60) calender days of the date this decision becomes final.
Within twenty five (25) days of the date this decision becomes final,
the agency shall request the complainant to submit within thirty (30)
calendar days of receipt, the following information:
a) a verified statement of his uninsured medical costs incurred during
the relevant period; and
b) further documentation relating to job-hunting expenses, such as copying
costs and related charges, due to complainant's need to seek and obtain
new employment.
Within ten (10) calendar days upon receiving the complainant's statement,
the agency is ORDERED to issue a check to the complainant for the
undisputed amount of the medical and job hunting costs incurred by the
complainant, with interest.
The complainant may petition for enforcement or clarification of
the amount regarding the medical costs in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, including
the $2,817.66 for medical expenses relating to the birth of complainant's
daughter, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. 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 statement entitled "Implementation of
the Commission's Decision."
The agency shall provide complainant interim relief in accordance with
the paragraph below.
The agency shall post a notice in accordance with the paragraph below.
The agency shall pay complainant's reasonable attorney's fees in
accordance with the paragraph below.
The agency shall provide immediate training to Comparative 1, S2, and
the Lt. Colonel, regarding their obligations and responsibilities under
the federal employment discrimination laws.
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 the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Directorate of Support, U.S. Army
Transportation Center & Fort Eustis, Fort Eustis, Virginia 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.
INTERIM RELIEF (F1199)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.502(b)).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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:
April 11, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________________
Date Equal Employment Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
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., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 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 Directorate of Support, Fort Eustis, Virginia, U.S. Department
of the Army, (hereinafter referred to as "facility") supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The facility has been found to have discriminated on the bases of race
and disability, when it repeatedly failed to select, promote and convert
an individual into a permanent position, which ultimately led to his
termination from employment. The facility was ordered to reinstate the
employee into a permanent WG-10 Electronics Mechanic position, award
him all back pay and benefits, with interest, as well as compensatory
damages. The agency was also ordered to pay complainant's reasonable
attorney's fees. Furthermore, the agency was ordered to post this
notice and to provide training to the responsible officials on the
current state of the law on employment discrimination.
The facility 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 The "stopper list" refers to a list that provides a hiring preference
to certain current or former employees that were either subject to a
reduction in force or downgrade.
3The AJ found that the agency's exhibit purporting to represent
Comparative 2's veteran's preference was illegible.
4 The AJ noted that these medical expenses were submitted post-hearing
as the infant's birth occurred only days prior to the reconvened hearing
on damages. The AJ also noted that these expenses can be considered
remuneration under the reinstatement award, since complainant is
considered converted to permanent, full time status with the right to
elect among insurance coverage.
5Although complainant's wife had health insurance at the time of the
birth of his daughter, medical expenses related to the birth of his
daughter were not covered because the pregnancy was deemed a pre-existing
condition.