01990204
04-14-2000
Tremonte Renfro, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs Agency.
Tremonte Renfro v. Department of Veterans Affairs
01990204
April 14, 2000
Tremonte Renfro, )
Complainant, )
) Appeal No. 01990204
v. ) Agency No. 960185
) Hearing No. 140-96-8133X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant claims that she was harassed and discriminated against on
the basis of race (black) as evidenced by the following incidents:
(1) she was denied overtime from June 23, 1996 to July 1, 1996;
(2) she did not receive a job description or explanation of
her duties;
(3) her supervisor (S) treated her in a disparaging manner,
communicating with her through another employee instead
of directly; and,
(4) she was coerced into retirement.
For the reasons that follow, the Commission REVERSES IN PART, and AFFIRMS
IN PART, the agency's final decision (FAD).
The record reveals that complainant, a Automation Clerk Typist at
the agency's Fayettesville, North Carolina Medical Center, filed a
formal EEO complaint with the agency claiming that the agency had
discriminated against her as referenced above. Complainant contends
that after she asked to be relieved of timekeeping responsibilities,
this assignment was transferred to a white co-worker (CW), but she
(complainant) was not given any work to do in its place. Consequently,
CW earned overtime for performing her usual duties in addition to the
timekeeping duties. Complainant also claims that S treated her in a very
hostile and derogatory manner, "scolded her like an animal," shunned her
and communicated with her indirectly through CW, and failed to provide
her with a clear idea of what she was expected to do. Complainant also
contends that S made numerous remarks pressuring her to retire, compelling
her to contact the personnel office and completed the paperwork for an
August 30, 1996, retirement. However, prior to this date, complainant
worked for another supervisor,<2> and deferred her retirement until
January 1997, taking advantage of the agency's "buy-out" program.
At the conclusion of the complaint investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued
a decision finding discrimination regarding incidents 1 and 3, but no
discrimination regarding incidents 2 and 4.
The AJ concluded that complainant established a prima facie case of race
discrimination regarding incidents 1, 3, and 4, finding that complainant
was a member of a protected class and that she presented persuasive
evidence to demonstrate that she suffered disparate and adverse treatment
regarding each of these incidents. However, the AJ determined that a
prima facie case of race discrimination regarding incident 2 had not
been established because the record contained complainant's position
description and performance appraisals based on that description.
The AJ then concluded that the testimony of the agency's witnesses was
sufficient to articulate legitimate, nondiscriminatory reasons for
S's actions. Specifically, regarding incident 1, the AJ found that
agency witnesses testified that complainant did not request overtime,
and also that she did not require overtime to finish her assignments.
Regarding incident 3, the AJ found that the agency presented testimony
that S had a reputation for treating all people in the same respectful
manner; and concerning incident 4, she found the agency presented
testimony that complainant appeared to be happy about her January 1997
retirement and buy-out award.
In her pretext analysis, the AJ held that S admitted that complainant
had asked for overtime at least once during the pertinent period, but
the record showed that she never received overtime pay during this time.
Moreover, the AJ found that as soon as S was challenged about CW's use
of overtime, it abruptly stopped, suggesting that she did not need it
to complete the extra timekeeping assignment, contrary to S's testimony.
The AJ determined that this was sufficient to establish that the agency's
proffered reasons were a pretext for race discrimination, and that S
was motivated by racial animus toward complainant, warranting a finding
of discrimination.
Regarding incident 3, the AJ found that S's testimony lacked credibility
when she denied mistreatment of complainant, noting her hostile and
agitated demeanor during this portion of the testimony, and further
found that none of her character witnesses had actually observed S and
complainant interact. On the other hand, the AJ found that certain of
complainant's witnesses provided highly credible and probative testimony
regarding S's disparate treatment of black subordinates in general, and
complainant in particular, concluding that pretext had been established,
and that a finding of discrimination was warranted.
However, when addressing incident 4, the AJ found that although
complainant's August 1995 plan for retirement was very likely coerced
by S, her subsequent actual retirement in January 1997, was not because,
with the exception of one month, she had not been under S's supervision
since December 1995. According, the AJ determined that a finding of
discrimination was not warranted regarding incident 4.
The FAD rejected that part of the AJ's decision which found
discrimination, but adopted that part which found no discrimination.
Neither the agency nor complainant submitted a statement regarding the
instant appeal.
In its FAD, the agency finds that the AJ erred when she determined that
CW was "similarly situated" to complainant because they had different
pay grades and different jobs. The FAD also found that the AJ erred in
her credibility determination regarding S, and found that complainant
failed to establish a prima facie case of harassment due to a hostile
work environment. Finally, the FAD determined that the AJ erred in
her recommended remedy of back pay regarding the denial of overtime,
averring that complainant lost no pay during the pertinent time period.
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 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).
Initially, we note that the AJ does not address the issue of harassment,
instead finding discrimination with respect to only the denial of overtime
and S communicating with complainant through CW. However, the AJ does
address complainant's harassment evidence (coercion to retire, sabotage of
the computer, S's "scolding" of complainant for work errors and attendance
problems, and a birthday cake incident). As noted, the FAD undertakes
its own analysis and finds that complainant fails to set forth a prima
facie case of harassment. Notwithstanding the fact that the AJ fails to
specifically make a finding of harassment, she does analyze complainant's
harassment evidence and concludes that it demonstrates that S treated
complainant in a hostile and disparaging manner due to racial animus.
Furthermore, reviewing the evidence concerning both the described
incidents and overall "environment" in the office, we conclude that,
when viewed as a whole, S's treatment of complainant was sufficiently
severe and pervasive as to constitute harassment based on a hostile
work environment. See Rideout v. Department of the Army, EEOC Request
No. 01933866 (November 22, 1995)( citing Harris v. Forklift Systems, Inc.,
510 U.S. 17, 22 (1993)) req. for recons. den. EEOC Request No. 05970995
(May 20, 1999). Moreover, we find the fact that complainant felt so
intimidated by S that she felt pressured to retire, at least in the first
instance, is especially persuasive evidence that she was subjected to
harassment by S. Accordingly, we MODIFY the RD to include our finding
that complainant prevailed on her harassment claim, and we REVERSE the
FAD's determination that complainant failed to establish a prima facie
case of harassment based on race due to a hostile work environment.
With the exception of failing to address complainant's harassment claim,
the Commission finds that the AJ's RD otherwise summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Moreover, although we concede that CW may not have been "identically"
situated to complainant, we find that the AJ's analysis instead
appropriately focused on the evidence of pretext in finding that S was
motivated by discriminatory intent. See U.S. Postal Board of Governors
v. Aikens, 460 U.S. 711 (1983) and Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978). We also find that the AJ's award of back pay
for the pertinent period was appropriate because the Commission has long
held that back pay includes overtime pay that was discriminatory denied.
See Wrigley v. USPS, EEOC Petition No. 04950005 (February 15, 1996).
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
REVERSES the FAD in that part which rejects the AJ's findings of
discrimination and complainant's harassment claim, and AFFIRM the FAD
in that part which adopts the AJ's finding of no discrimination.
ORDER
1. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Charlotte, North Carolina EEOC
District Office. Thereafter, the Administrative Judge shall issue a
decision on these issues in accordance with 64 Fed. Reg. 37,644, 37,657
(1999) (to be codified at 29 C.F.R. � 1614.109), and the agency shall
issue a final action in accordance with 64 Fed. Reg. 37,644, 37,657-58
(1999) (to be codified at 29 C.F.R. � 1614.110) within forty (40) days of
receipt of the Administrative Judge's decision. The agency shall submit
copies of the Administrative Judge's decision and the final agency action
to the Compliance Officer at the address set forth below.
2. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 64 Fed. Reg 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501), 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."
2. The agency is ordered to conduct EEO training for all responsible
management officials, to the extent practicable in light of S's departure
from the agency.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Fayettesville, North Carolina,
Medical Center 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.
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).
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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
April 14, 2000
_______________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 On 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 S was detailed to another office from December 1995 to June 1996. Then,
in July 1996, complainant was permanently assigned to another office.