07a40062
09-15-2005
Theodore Slocum, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Theodore Slocum v. Social Security Administration
07A40062
09-15-05
.
Theodore Slocum,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 07A40062
Agency No. 00-0017-SSA
Hearing No. 370-AO-2317X
DECISION
Following its January 23, 2004 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the bases of his race (Asian) and reprisal
(prior EEO activity). The agency also requests that the Commission
affirm its rejection of the AJ's order to pay compensatory damages and
equitable relief. For the following reasons, the Commission Reverses
the agency's final order.
Complainant, an Administrative Law Judge (ALJ) employed at the agency's
Long Beach North, California facility, filed a formal EEO complaint with
the agency on October 12, 1999, alleging that the agency discriminated
against him on the bases of race (Asian/Japanese) and reprisal for prior
EEO activity when:
(1) On August 4, 1999, he was informed by the Regional Chief
Administrative Law Judge (RCAJ) that he would be reassigned to Stockton,
California, rather than Sacramento, California, as complainant had
requested; and
On August 31, 1999, complainant's reassignment was canceled; on September
17, 1999, cases were transferred from him without his consent; he was
not assigned support staff following the departure of his office clerk
and legal assistant; and his requests for a medical hardship transfer
starting August 18, 1999 were not acted upon and/or granted.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an AJ.
The record reveals that complainant was hired in September 1997, as
an ALJ. He was assigned to the Long Beach North, California office
where he remained until being transferred to Sacramento, California
in December, 1999. The Long Beach North office was established on a
temporary basis in 1997, in response to an anticipated increase in cases.
Complainant and the other ALJs in the Long Beach North office understood
that they would be reassigned to other offices in a few years when that
office was closed. In the fall of 1998, complainant and the other ALJs
in the Long Beach North office were advised in a memorandum from the
office manager that they should contact agency officials about the
office to which they wished to transfer. In response, complainant
wrote a letter to the Chief Administrative Law Judge, indicating that
he wanted to be reassigned to the Sacramento office where his home and
wife were located. The RCAJ then met with complainant and his co-workers
and again requested their transfer choices. In March or April 1999, the
RCAJ proposed transferring complainant to the agency's Stockton office,
a proposal complainant immediately rejected. Complainant once again
indicated that his preference was the Sacramento office. On May 15,
1999, during a visit by the RCAJ, complainant reiterated his interest in
not working in the Stockton office. At that time the RCAJ, acknowledged
complainant's preference, stating that he had �guessed that Stockton
wasn't very high on complainant's priority list.�
The record indicates that complainant was the only one of the eleven ALJs
in the Long Beach North office that was not given the transfer assignment
of his choosing. This included three ALJs who at their request received
assignments either outside of their home area or outside of the region.
The RCAJ testified that he used the following factors in determining
where Long Beach North judges would be transferred: �as close to home
as humanly possible� and �work load ... the availability of staff,
the availability of offices.�
Complainant spoke with RCAJ again on August 18, 1999, he again objected
to being assigned to Stockton. During this conversation, complainant
told the RCAJ that his wife was scheduled for breast cancer surgery
on September 10, followed by additional therapy beginning in October,
and on that basis he was asking for a hardship transfer to the agency's
Sacramento office. At this time, complainant also advised the RCAJ
that he considered his transfer to Stockton to be disparate treatment.
On August 26th, complainant wrote to the RCAJ confirming their August
18th, conversation. The subject of this letter was captioned �my
involuntary assignment to Stockton against my will under protest.� The
body of the letter, however, indicated that complainant would go to
Stockton but that Sacramento was his first choice. Copies of the letter
along with additional information were sent to the Chief Administrative
Judge and the Associate Commissioner. A few days prior to sending the
letter, complainant had been told that he should contact the Acting Chief
Judge in Stockton, which he did. Complainant made arrangements to meet
with the Acting Chief Judge in Stockton, to leave the Long Beach office
on September 17, and to start in the Stockton office on September 20.
From August 28th through September 4, 1999, complainant was away
on vacation. Upon his return, he received a letter from RCAJ dated
August 31st, the letter advised complainant that in light of his letter,
his transfer was canceled and he would remain assigned to the Long Beach
North office. Complainant's wife had breast cancer surgery on September
10th, after taking two weeks off, complainant commuted back and forth
from Long Beach to Sacramento to care for his wife.
On or about October 20th, complainant was told by the Long Beach North
Chief Judge that she had been advised by the RCAJ that complainant had
been permanently assigned to her office. Complainant considered this
assignment to be retaliatory, as he was willing to work in Stockton and,
moreover, he understood the Long Beach North office to be an undesirable
place to work. While in Long Beach North, complainant had very little
work to do.
On October 26th, complainant wrote RCAJ reiterating his earlier Sacramento
personal hardship transfer request based upon his wife's breast cancer.
Complainant also included a letter from his wife's treating physician
outlining her care and the need to have her husband present. In the
October 26th letter, complainant pointed out that RCAJ had failed to
respond to his two previous requests. The letter also criticized RCAJ for
making statements to others that complainant could go to Stockton at any
time to be with his sick wife but due to his letter of protest his hands
were tied. Finally, complainant's letter protested as retaliatory his
reassignment to the Long Beach North office on or about October 20th.
On November 8th, complainant learned that the Associate Commissioner
was attempting to have him sent to Sacramento. Complainant was finally
reassigned and started working in Sacramento on December 20, 1999.
Following a hearing, the AJ found that complainant established a
prima facie case of discrimination when: (1) on August 4, 1999, he
was informed by the Regional Chief Administrative Law Judge that he
would be reassigned to Stockton, California, rather than Sacramento,
California, as complainant had requested; (2) on August 31, 1999,
complainant's reassignment was canceled; and (3) his requests for a
medical hardship transfer starting August 18, 1999, were not acted
upon and/or granted<1>. The AJ then found that the agency articulated
legitimate, nondiscriminatory reasons for its actions by stating that
complainant was transferred to Stockton rather than Sacramento for three
reasons: the Sacramento chief judge did not want another judge, there
was not enough work for the existing Sacramento judges, and Stockton
needed another judge. The AJ concluded however, that complainant
established that more likely than not, the reasons provided by the
agency were a pretext for discrimination. In reaching this conclusion,
the AJ found that the evidence showed that the RCAJ did not talk to the
Sacramento chief judge until after he assigned complainant to Stockton
as was evidenced by the Sacramento chief judge testimony that he told
RCAJ that �if its causing a problem, I'll take him.� The AJ concluded
that the weight of the evidence showed that RCAJ did not discuss the
complainant's desire to be assigned to Sacramento until after complainant
had been offered and rejected the Stockton office and had initiated EEO
proceedings in October 1999.
The AJ found that RCAJ's argument that there was insufficient work for
Sacramento judges and that Stockton needed another judge was also not
correct. The evidence showed that there was only a slight difference in
the number of cases being handled by the judges in each of these offices
during the time in question. As such, the AJ found there was no evidence
that Sacramento's case load was an independent basis for not assigning the
complainant there as he requested, nor that Stockton had an urgent need
for another judge. Moreover, the AJ found that even if the Sacramento
Chief Judge had concerns about the impact on the Sacramento office's
workload by placing complainant there, it was evident that the RCAJ
could have remedied that by having more cases assigned to that office,
as he had been doing for other reasons for at least 18 months. The AJ
found that the evidence showed that the RCAJ had transferred someone in
March, 1999, to the Sacramento office. The evidence showed that this
judge wanted to transfer because he did not like Los Angeles and he had
friends and family in the Sacramento area. In sum, the AJ found that
the RCAJ's explanation for sending complainant to Stockton rather than
Sacramento because of case load concerns was not credible.
The AJ also did not find the RCAJ's testimony credible regarding his
not understanding complainant's August 26 letter, wherein complainant
indicated that he was prepared to �work in Stockton in good faith, while
trying to get reassigned to Sacramento as soon as possible: I will go
to Stockton under protest and duress since my wife's health requires
me to be with her in Sacramento (some 400 miles from Long Beach).�
The RCAJ indicated that from the letter he understood that complainant
meant that he was not going to Stockton. The RCAJ also indicated that
he received advice from the Chief Judge or his counsel that the agency
could not transfer someone once they had protested their assignment.
The AJ found that despite having this alleged basis in law or regulation
for refusing to send complainant to Sacramento, the RCAJ said nothing
of it to complainant, and the sum total of his response to complainant
was that �in view of your protest, your transfer... is cancelled and
you will remain assigned to the Long Beach North Hearing Office.� The
AJ found that the agency was unable to produce anyone who was able to
identify any rule that would have imposed a duty on the RCAJ to invalidate
complainant's transfer to Stockton because it was under protest.
The AJ found that the evidence showed that RCAJ did not act on
complainant's request for a hardship assignment and failed to tell others
that complainant had made such a request. The AJ found that there
was no basis for the RCAJ to not have quickly approved complainant's
hardship request based upon the merits and the past practices of the
RCAJ in handling the transfer requests of other Caucasian judges. The
AJ also found that the RCAJ had not been truthful when he indicated
that the authority to approve complainant's request had been passed on
to someone else. The AJ found that the agency failed to show that any
other judge was treated in the same manner as the complainant.
Regarding complainant's retaliation claim, the AJ found that the RCAJ's
post-EEO actions toward complainant, were retaliation for complainant's
initiation of a process which the RCAJ thought had cast unjust aspersions
on him.<2>
The AJ found that complainant had been discriminated against based on race
and retaliated against. The AJ ordered that complainant be provided the
following relief. Non-pecuniary compensatory damages in the amount of
$20,000, reimbursement for airfare - $1,760.82, reimbursement of rent -
$3,667.00, reimbursement for Long Beach expenses - $42.51, attorney's
fees - $442.50, costs - $1,418.06, and reinstatement of all annual and/or
credit leave taken on 8/23, 8/27, 9/14, 9/20, 10/1, 10/6, 10/12, 10/15,
10/22, 11/10, 11/15, 11/19, 11/23, 11/29, 12/10, and 12/16.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred by not discussing the agency's contention
that complainant did not suffer an adverse employment action. The agency
also contends that the AJ provided no analysis relative to complainant's
reprisal claims, yet he found that complainant established a prima facie
case of discrimination based on race and reprisal. The agency contends
that there is no evidence that complainant was entitled to be laterally
reassigned to the location that he preferred or that the agency had
a duty to reassign him based on his personal preference. The agency
maintains that the cancellation of complainant's reassignment to Stockton,
did not affect his employment status in any material way. Further,
the agency maintained that complainant failed to present evidence as
to how the agency routinely handles ALJ hardship transfer requests,
the AJ's conclusions on the issue of �similarly situated� status was
not supported by substantial evidence and the AJ erred when he used
the �substantial evidence� standard to evaluate complainant's claims
of pretext. Finally, the agency contends that complainant's claims of
pretext are not supported by a preponderance of the evidence.
The complainant submitted a cross appeal, which argues that the AJ erred
when he awarded only $20,000 in non-pecuniary compensatory damages.
Complainant contends that the award should have been much higher in light
of the mental anguish and hardship that he endured as a result of the
agency's discrimination. Complainant contends that the award should have
been at least $50,000.
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.
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination and award of equitable relief.
The findings of fact are supported by substantial evidence, and the
AJ correctly applied the appropriate regulations, policies, and laws.
We find that the agency's contentions on appeal are not supported by
the record. In the final analysis, all of the other AJ's in the Long
Beach North office were transferred to the location of their choice except
complainant and the agency provided no credible reason as to why he was
treated differently than the others. The evidence also shows that after
complainant contacted an EEO Counselor, his transfer to Stockton was
rescinded, he was told that he was being permanently assigned to the
Long Beach North office and he was humiliated in front of his peers.
Accordingly, we find that complainant established a prima facie case of
reprisal. Finally, the Commission agrees that complainant demonstrated
that the agency's articulated reasons were pretext for discrimination.
Regarding complainant's cross-appeal, the Commission finds that
non-pecuniary compensatory damages in the amount of $20,000 was
inappropriate based on the severity of the harm and the length of time
complainant suffered the harm. The Commission finds that non-pecuniary
compensatory damages in the amount of $50,000 is more appropriate. We
note that this amount meets the goals of not being motivated by
passion or prejudice, not being "monstrously excessive" standing
alone, and being consistent with the amounts awarded in similar cases.
The Commission finds that the weight of our prior decisions supports an
award of $50,000.00 in the instant case. See Holliday v. Department of
Agriculture, EEOC Appeal No. 01A03047 (June 12, 2002) (Commission awarded
$50,000.00 in non-pecuniary damages where due to a retaliatory work
environment complainant suffered emotional distress daily for at least
14 months, experiencing loss of enjoyment of life, loss of professional
standing and forced early retirement); and see Bowden v. Department of
Veterans Affairs, EEOC Appeal No. 01A00360 (June 22, 2000) (Commission
awarded $45,000.00 in non-pecuniary damages where the agency subjected
complainant to harassment which resulted in exacerbation of depression,
injury to professional standing, character, reputation, and credit rating,
humiliation, physical manifestations, loss of self-esteem, and marital
and family problems).
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
reverses the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER
To the extent that it has not already done so, the agency is ordered to
provide the following relief to complainant:
Reimbursement for airfare in the amount of $1,760.82;
Reimbursement for rent in the amount of $3,667.00;
Reimbursement for Long Beach expenses in the amount of $42.51;
Attorney's fees in the amount of $442.50;
Costs in the amount of $1,418.06;
Non-pecuniary compensatory damages in the amount of $50,000.00;
Reinstatement of all annual and/or credit leave taken on 8/23, 8/27,
9/14, 9/20, 10/1, 10/6, 10/12, 10/15, 10/22, 11/10, 11/15, 11/19, 11/23,
11/29, 112/10 and 12/16;
The agency shall conduct training on Title VII, as amended, for the RCAJ
involved in denying complainant's transfer to the Sacramento office
within 60 days of this Decision. The Commission does not consider
training to be a disciplinary action;
Within thirty (30) days, the agency shall consider taking disciplinary
action against the RCAJ who denied complainant's transfer and hardship
request. 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; and
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 Sacramento 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 all facilities where Long Beach North
employees were reassigned 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you
to file the action without payment of fees, costs, or other security.
See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��
791, 794(c). The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____09-15-05______________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found violations
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. (Title VII), occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The Social Security Administration, confirms its commitment
to comply with these statutory provisions.
The Social Security Administration, supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Social Security Administration, Long Beach North, California,
facility has been found to have discriminated against an employee based
on his race and in retaliation when he was not transferred. The Social
Security Administration, has been ordered to provide compensatory damages
and restoration of leave to the affected employee and provide training
regarding EEO laws under Title VII to appropriate managers. The Social
Security Administration, will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The Social Security Administration, 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
1 The AJ found that complainant was not discriminated against when on
September 17, 1999, cases were transferred from him without his consent;
and when he was not assigned support staff following the departure
of his office clerk and legal assistant. The Commission agrees with
this finding.
2 The AJ found that failing to act on complainant's hardship requests was
an act of retaliation, the RCAJ not telling anyone that the Chief Judge in
Sacramento had offered to let complainant work in the Sacramento office,
the RCAJ led complainant and others to believe that complainant might
be permanently assigned to Long Beach and the RCAJ also appears to have
made an effort to leave the impression with colleagues of complainant
that it was complainant's choice to remain in Long Beach rather than to
be with his sick wife in Sacramento telling them that complainant �can
go to Stockton at any time.�