0720060080
09-26-2007
Terry L. Clarke, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Terry L. Clarke,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 07200600801
Hearing No. 170-2004-00040X
Agency No. ARCEHWV02MAY0003
DECISION
Simultaneous with its August 4, 2006, final order, the agency filed
a timely appeal which the Commission accepts pursuant to 29 C.F.R. �
1614.405(a). An Equal Employment Opportunity Commission (EEOC)
Administrative Judge's (AJ) issued a decision2 finding that the agency
violated Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., regarding one allegation,
and awarded attorney fees and compensatory damages. On appeal, the
agency requests that the Commission affirm its rejection of the AJ's
award of attorney fees and costs. Its final order and appeal does
not reject the AJ's finding of discrimination or award of compensatory
damages, and hence these rulings are part of the agency's final order.
29 C.F.R. � 1614.109(i). Complainant appeals the agency's final order,
challenging portions of the AJ's decision. As applicable, complainant
alleged discrimination based on his race (white), sex (male), religion
(Protestant/Methodist, associated with adopted daughter whose birth mother
is Muslim), disability (generalized anxiety disorder), and reprisal for
prior protected EEO activity
ISSUES PRESENTED
Whether the AJ's decision properly (1) granted the agency's motion for a
decision without a hearing finding no discrimination on a portion of the
complaint, (2) declined to adjudicate claims, advising they be pursued
at the agency level, that complainant was discriminated against when
(a) he was not promoted without competition via accretion of duties to
the position of attorney, GS-14, and (b) the Equal Pay Act was violated
by paying him at the GS-13 level; (3) dismissed complainant's claims
that he was discriminated against when (a) rather than promote him via
accretion of duties, the agency competitively announced the position at
the GS-14 level, and (b) rather than selecting him for the position,
the agency canceled the announcement, and (4) whether the claims of
attorney fees and compensatory damages are ripe for adjudication.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an attorney at the agency's Huntington District Corps of Engineers,
Office of Counsel in Huntington, West Virginia.
He filed an EEO complaint, as amended, contending that he was
discriminated against in violation of the Rehabilitation Act, Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.,
when he was discriminated against on the above applicable as follows:
1. he was not promoted without competition via accretion of duties to
the position of attorney, GS-14,
2. the Equal Pay Act was violated by paying him at the GS-13 level,
3. the agency competitively announced the above position at the GS-14
level (on July 8, 2002) [rather than promote him via accretion of
duties],
4. rather than selecting him for the position, the agency canceled the
announcement,
5. his duties were reduced,
6. the agency interfered with his pursuit of the EEO process,
7. he was subjected to demeaning comments,
8. his supervisor disclosed confidential medical information about him,
9. he was harassed and disparately treated regarding time and attendance,
10. he was denied compensation for work performed outside his core hours
from 1996 to 2002,
11. he did not receive a performance award in 2002,
12. his whereabouts were monitored,
13. he was denied administrative support,
14. starting in 2002, he was denied opportunities to serve as acting
District Counsel,
15. in October 2003, he was subjected to a frivolous investigation,
16. he was issued a notice of proposed suspension dated February 5,
2004, which was reduced to a letter of counseling,
17. he was issued a letter of admonishment dated March 19, 2004, which
was to remain in his record for two years, and
18. his attorney qualifications were partially revoked by the agency on
March 19, 2004.
The AJ's decision found a violation of the Rehabilitation Act when
complainant's supervisor disclosed complainant's medical condition to
a co-worker of complainant. This finding became part of the agency's
final order. The AJ's decision dismissed a portion of the complaint
on procedural grounds. The AJ's decision found, without a hearing, no
discrimination on the remainder of the complaint, as amended. Prior to
the ruling complainant opposed summary judgment, and continues to do so
regarding all these claims on appeal.
On appeal, the agency argues that the AJ's decision properly was issued
without a hearing finding no discrimination on the claims it did.
It argues the AJ's procedural rulings were proper. It disputes the
attorney fee award.
ANALYSIS AND FINDINGS
Promotion and pay level claims (# 1-4)
Starting as early as November 12, 2001, management began initiating
written documentation taking steps to promote complainant to GS-14 without
competition through accretion of duties. However, on March 27, 2002,
complainant was informed by his supervisor that instead the position
would be competed via vacancy announcement.
Complainant initially sought EEO counseling on May 3, 2002, alleging
that he was discriminated against based on his race and sex when he was
denied a promotion to GS-14. Complainant noted that the agency had taken
steps to promote him through accretion of duties, but then stopped and
decided it was going to compete the position. Complainant alleged to
the EEO counselor that he was told by his supervisor that the accretion
promotion would have gone through with no problem had it been proposed
for co-worker 1 (white female) or co-worker 2 (black male). On May 9,
2002, complainant withdrew his EEO contact of May 3, 2002, citing his
emotional state with his father's diagnosis, the opportunity to compete
for the GS-14 position, and the potential adverse impact it would have on
his supervisors and the well being of the office. He reinitiated contact
with the EEO counselor regarding his complaint, as amended, on May 29,
2002. Complainant, inter alia, alleged claims 1 and 3 in his subsequent
original complaint. See Investigative File (IF) pages 4, 29-31.
Styling claims 1 and 3 as competitively announcing the position at the
GS-14 level rather than promoting complainant via accretion of duties,
the agency dismissed them for failure to state a claim, reasoning they
concerned a preliminary step to take a personnel action of selecting an
environmental attorney, GS-14. 29 C.F.R. � 1614.107(a)(5). It also
reasoned they failed to state a claim because complainant was not
harmed.
In a November 5, 2004, reply motion entitled "Agency Comments on
Partial Dismissals and Partial Response to the Complainant's Motion to
Clarify Issues," the agency argued that complainant untimely sought EEO
counseling on claims 1 and 3 because he learned that the agency decided
to compete the position rather than promote complainant via accretion
of duties on March 27, 2002, but did not seek EEO counseling regarding
the matter until May 29, 2002, beyond the 45 day time limit to do so.
29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The AJ's decision ruled
that claims 1 and 2 were continuing violations, but finding they were
added by amendment and not like and related to the original complaint,
advised that complainant could pursue them at the agency EEO level.
Complainant did so. The claims were set forth for investigation under
agency number ARCEHWV05JAN06382, and are pending before an EEOC AJ at
the Cleveland Field Office under EEOC No. 530-2006-00054X.
Shortly after the above agency motion, the AJ ruled that complainant
failed to timely initiate EEO contact on claim 3. The agency then argued
that claim 4 should be denied because it was not like or related to any
accepted claim, and failed to state a claim. The AJ dismissed claim 4
without reciting a specific grounds.
The AJ's decision incorrectly found claim 1 was initially raised in an
amended complainant and not like or related to a claim in the original
complaint because it was alleged in the original complaint as recited
above.3 Moreover, we find claim 4 states a claim (and to resolve any
doubt, explicitly find claims 1 and 3 also state a claim). Claims 1, 3,
and 4 all ultimately regard the same thing, denial of a GS-14 position
to complainant. Complainant contends that rather than promote him via
accretion of duties, which it initially took steps to do, the agency
discriminatorily stopped this process and competed the job, for which
he applied, and then withdrew the competition and did not promote him.
This states a claim, i.e., failure to promote complainant. Hillman
v. Department of Defense, EEOC Appeal No. 01A14319 (June 14, 2002).
We now turn to the timeliness of claim 3. Where there is an issue of
timeliness, "[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness." Guy,
v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992)). Complainant timely raised the competition matter,
which he learned on March 27, 2002, was going to occur; (as well as
claim 1) with an EEO counselor on May 3, 2002.
However, for reasons that will be explained in more detail in the
interference with the EEO process section of this decision, we find that
the agency has not met its burden of showing claim 3 was untimely raised
with an EEO counselor. According to complainant, on May 8, 2002, his
supervisor heavily pressured him in a lengthy conversation to withdraw
his EEO claim by telling him it would severely hamper complainant's
chances of getting promoted, it disappointed and perplexed management,
and so forth. The supervisor corroborated enough of complainant's account
in his testimony, as will be described below, that we find that equity
requires that the May 3, 2002 contact not be considered withdrawn for
timeliness purposes. Accordingly, we find complainant timely initiated
EEO contact on claim 3. This is not a ruling on the merits of the
interference with the EEO process claim, where, different from procedural
timeliness, complainant has the burden of proof. Claim 3 is timely.
Claims 1 and 2 were set for investigation separately from this case,
and are pending before an EEOC AJ. Claims 3 and 4 are like and related
to claim 1. Given the current procedural posture, we are recommending
that claims 3 and 4 be remanded to the EEOC Cleveland Field Office for
consolidation for processing with claims 1 and 2. However, we will leave
the consolidation choice to the EEOC AJ who has claims 1 and 2 because
the AJ is in a better position to know if consolidation is procedurally
practicable at this point. If not, claims 3 and 4 will be remanded with
the instant complaint back to the hearings unit.
Claim regarding interference with the EEO process (# 6)
We must also determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record on the merits claims
on all but one allegation. The Commission's regulations allow an AJ to
issue a decision without a hearing when he or she finds that there is no
genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure set forth in Rule 56
of the Federal Rules of Civil Procedure. The U.S. Supreme Court has
held that summary judgment is appropriate where a court determines that,
given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court's function is not to weigh the evidence but rather
to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. An issue of fact is "genuine"
if the evidence is such that a reasonable fact finder could find in
favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of
the case.
Complainant contends that on May 7, 2002, he was called by his supervisor
at home and told he wanted to talk to him about the EEO claim. According
to complainant, when he replied that he could not talk because he was
putting his daughter to bed, the supervisor said he really needed to
talk to him badly before he did anything stupid. While the supervisor
acknowledged that he had already learned of the EEO contact, he testified
that he did not think he raised the EEO claim, and did not know what he
said about stupid. Investigative Transcript (IR), Vol I, p. 122.
Complainant claimed that on May 8, 2002, while at an off-site meeting,
his supervisor showed up and asked him to go talk in the supervisor's car.
Complainant claimed that during this approximately two hour conversation,
the supervisor tried to persuade him to drop the EEO claim by saying
he was disappointed and could not believe he filed the claim, he
and the Commander were perplexed by it, the supervisor nearly cried
and claimed he could be fired, and advised if the claim continued it
would jeopardize complainant's chance of getting the GS-14 promotion,
but if it was dropped he would help assure complainant's promotion
via competition. Complainant's father was recently diagnosed with a
terminal medical condition. Complainant stated that he raised his
feelings about it with the supervisor who advised him to spend the
short remaining time with his father and that an EEO complaint would
be troublesome to pursue. The supervisor acknowledged discussing the
EEO complaint in this conversation. When asked about the conversation,
the supervisor testified that he was surprised complainant filed an EEO
claim, and he believed he discussed this with complainant, as well as his
fear that it would spur at least co-worker 1 to file an EEO complaint
and deepen internal office fights which would be very difficult to
stomach. Testifying that he did not recall the exact language he used,
the supervisor said that he did not know if he told complainant he and
the Commander were perplexed and disappointed he filed the EEO claim,
but he may have. IR, Vol I, pages 124-126.
The next day, May 9, 2002, complainant withdrew his EEO contact,
citing his emotional state with his father's diagnosis, the opportunity
to compete for the GS-14 position, and the potential adverse impact
it would have on his supervisors and the well being of the office.
Complainant reinitiated contact with the EEO counselor regarding his
complaint, as amended, on May 29, 2002.
After a careful review of the record, we find that the AJ erred when
she concluded that there was no genuine issue of material fact regarding
claim 6 (this analysis does not include the per se violation finding).
In finding no genuine issue of material fact with interference in EEO
process, the AJ's decision found that despite the supervisor's attempts,
complainant did not discuss his EEO allegations with him and there
was no chilling effect on the process. In finding no chilling effect,
the decision recited complainant's reasons in his withdrawal letter and
that he reinitiated EEO contact on May 29, 2002. But there are genuine
issues of material fact here because complainant's version of events
indicates he was heavily pressured by his supervisor to withdraw his
EEO claim, the supervisor's testimony corroborated some of the facts
in complainant's version of events, and complainant's reasons for the
alleged pressured withdrawal are consistent with some of the language in
his withdrawal letter. While complainant reinitiated EEO contact on May
29, 2002, this delay raised questions of timeliness, delaying at length
the processing of the promotion claim. We remind the parties, however,
that while the burden of showing a claim is untimely is on the agency,
the burden of showing discrimination is on complainant.
Other than the incidents of May 7 and 8, 2002, which work in conjunction
with each other, we agree with the determination of the AJ that
there are no genuine issues of material fact regarding interference
with the EEO process, and there was no discrimination. For example,
the paralegal stated she was repeatedly told by co-worker 1 that she
hoped the paralegal would not portray her in a negative light in the
EEO process. Assuming the truth of the matter, this does not rise to the
level of discrimination. The paralegal reported to the same supervisor
as complainant, not to co-worker 1, and no alleged threats were made.
IT, Vol II, pages 172-173. While inappropriate, it does not rise to the
level of a violation of the law. Regarding other incidents, we agree,
for the reasons set forth in the AJ's decision, that these matters do
not as a matter of law rise to the level of interference.
Claim regarding disclosure of confidential medical information (#8)
Complainant claimed that his supervisor disclosed confidential medical
information about him to a co-worker. The AJ's decision found a violation
of the Rehabilitation Act regarding this matter, and this finding became
part of the agency's final order. This finding of discrimination is
affirmed.4 We view this as one claim.
Remaining merits claims (#5, 7, 9-18)
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, we affirm the agency's final order,
because the Administrative Judge's (AJ) issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
On remand, we will not make a determination here calculating compensatory
damages and attorney fees and costs. While complainant's appeal does not
challenge the award of $3,000 in compensatory damages for the finding of
discrimination in claim 8, which became part of the agency's final order,
he does ask, in light of his contention that there were other alleged acts
of discrimination, for additional compensatory damages. The amount of
damages and fees and costs will be affected by whether there is a finding
of discrimination on claim 6, and hence it is premature to calculate them.
We will not rule on other corrective actions or remedies at this time.
Conclusion
The final order implementing the AJ's decision finding a per se violation
of the Rehabilitation Act is affirmed. The AJ's decision, as implemented,
dismissing claims 3 and 4 on procedural grounds is reversed. The final
order implementing the AJ's finding of no discrimination without a
hearing on the portion of claim 6 described above and claim 8 is vacated.
The final order implementing the finding of no discrimination without
a hearing on the remainder of the complaint, as amended, is affirmed.5
A determination calculating compensatory damages and attorney fees and
costs is premature. The complaint, as amended, is remanded in accordance
with the order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of the
date this decision becomes final. The submission shall contain a cover
letter identifying the recommendation in this decision that claims 3 and
4 be consolidated with claims 1 and 2, which are before an AJ at EEOC's
Cleveland Field Office (part of the Philadelphia District Office), but
that AJ will make the decision to consolidate depending on whether it
is procedurally practicable. The agency is directed to submit a copy
of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final for processing on
the remanded claims, attorneys fees and costs, and compensatory damages.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue
a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and
the agency shall issue a final action in accordance with 29 C.F.R. �
1614.110.
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
September 26, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 In separate interlocutory orders, the AJ made various procedural and
merits rulings, and then issued a final decision with appeal rights.
Because the previous rulings were interlocutory, they merge with the
AJ's final decision, and all these rulings are referred to here as the
AJ's decision.
3 Complainant, however, did expand the time frame of the failure to
accrete claim.
4 29 C.F.R. � 1630.14 (c)(1) provides, in pertinent part, that
"information obtained under paragraph 1630.14(c)...regarding the medical
condition or history of any employee...shall be treated as a confidential
medical record." By its terms, this requirement applies to confidential
medical information obtained from "any employee," and is not limited
to individuals with disabilities. See Hampton v. United States Postal
Service, EEOC Appeal No. 01A00132 (April 13, 2000); Forde v. United
States Postal Service, EEOC Appeal No. 01A12670 (October 9, 2003);
see also EEOC Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations (October 10, 1995).
5 This does not apply to claims 1 and 2, which were not summary judged
and are pending before another AJ.
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0720060080
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036