01995432
10-03-2000
Truett Stith, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Truett Stith, )
Complainant, )
) Appeal No. 01995432
v. ) Agency Nos. 97-0599, 97-1207
) Hearing Nos. 280-98-4064X, 280-98-4065X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the basis of age (DOB: 11/28/38)
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.<1> Complainant alleges he was
discriminated against when:
(1) on March 22, 1992, he was nonselected to the Boiler Plant Operator
WG-10/11 position;
(2) on December 8, 1994 he was nonselected to the Boiler Plant operator
WG-8/10/11 position, Announcement #94-30;
(3) on January 12, 1995 he was nonselected to the Boiler Plant Operator,
WG-8/10/11 position, Announcement #94-40;
(4) on February 14, 1995 he was nonselected to the Boiler Plant Operator,
WG-10/11 position, Announcement #94-41; and
(5) in December 1996, management officials made a non-competitive
selection to the Boiler Plant Operator position, WG-10.<2>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission MODIFIES the agency's FAD.
The record reveals that complainant, a heating and air-conditioning
equipment mechanic, WG-10, at the agency's Medical Center in Topeka,
Kansas, filed a formal EEO complaint with the agency on November 24, 1997,
alleging that the agency discriminated against him as referenced above.
At the conclusion of the investigation, complainant was provided a
copy of the investigative reports and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
recommended decision (RD) finding discrimination only in reference to
claims 2 and 5. The agency, through its FAD, adopted the AJ's finding
of discrimination, but modified the remedial relief and compensatory
damages orders of the AJ. On appeal, complainant contends that the FAD
failed to order the appropriate relief.
ISSUE PRESENTED
The issue presented herein is whether the agency ordered the appropriate
relief.
BACKGROUND
After a hearing the AJ found that complainant was discriminated against
on December 8, 1994 when he was not selected to a Boiler Plant Operator
position, WG-8/10/11, and that complainant was again discriminated against
in December 1996, when the agency made a non-competitive selection to
the Boiler Plant Operator position, WG-10. While conceding the finding
that discrimination did occur, the FAD, the RD, and the complainant's
submission on appeal, reach different conclusions as to the appropriate
relief.
The AJ recommended retroactive placement of the complainant (then a
WG-10) into the upward mobility WG-8 Boiler Plant Operator position,
retroactive to the date he would have been hired had he not been
discriminated against. The AJ further recommended that the agency
determine the appropriate amount of back pay and benefits pursuant to
29 C.F.R.�1614.501. The AJ also found that complainant was entitled
to attorney's fees pursuant to 29 C.F.R.�1614.501(e)(2). The AJ then
found that complainant was not entitled to compensatory damages because
complainant did not request them.
The FAD modified the AJ's remedy. The FAD ordered the agency to offer
complainant the position of Boiler Plant Operator, WG-8, retroactive
to, December 8, 1994 through November 30, 1996 with all benefits he
would have received but for the discrimination. The FAD concluded that
complainant was not entitled to back pay because the complainant would
not have suffered a loss in pay, since he was nonselected for a position
of a lower pay grade. Therefore, the FAD indicated that complainant
was not entitled to back pay.
The FAD also directed the agency to offer complainant the position of
Boiler Plant Operator, WG-10 retroactive to December 1, 1996 with any and
all benefits including subsequent promotion to WG-11. Finding that the
nonselection for this position would not have meant a difference in pay,
since complainant was already a WG-10, the FAD found that the complainant
was not entitled to back-pay for the time that he would be considered
a WG-10. However, the FAD ordered the agency to compute the appropriate
amount of back pay and benefits retroactive to the date that complainant
would have been promoted to Boiler Plant Operator, WG-11. The FAD further
concluded that complainant requested compensatory damages, but noted
that compensatory damages are not available in age discrimination cases.
On appeal, the complainant requests inter alia compensatory damages,
back pay, front pay and attorney's fees.
ANALYSIS AND FINDINGS
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). We note that findings of law
are subject to our de novo review. EEOC Management Directive 110 (MD)
Chapter 9-15 (1999).
Equitable Relief
The Commission finds that complainant has established that he was
discriminated against on December 8, 1994, when he was nonselected to
Boiler Plant Operator, WG-8/10/11, Announcement #94-30. The Commission
also finds that complainant has established that he was discriminated
against in December 1996 when management officials made a non-competitive
selection to Boiler Plant Operator, WG-10.
EEOC Regulation 29 C.F.R. �1614.501(c)(5) provides that when an agency,
or the Commission, in an individual case of discrimination, finds that
an employee has been discriminated against, the agency shall provide
full relief, which shall include "full opportunity to participate in the
employee benefit denied (e.g., training, preferential work assignments,
overtime scheduling)." Accordingly, the complainant is entitled to the
WG-8 Boiler Plant Operator position retroactive to December 8, 1994.
Complainant is not entitled to back pay for the WG-8 position because
the Commission finds that the discriminatory personnel action did
not result in the withdrawal, reduction, or denial of all or part of
the pay, allowances, and differentials otherwise due the complainant.
5 C.F.R. �550.804(a). Likewise, the complainant is also entitled to
the Boiler Plant Operator, WG-10 position retroactive to December 1,
1996 with any and all benefits which must include promotion to WG-11.
We therefore find that complainant is entitled to back pay, retroactive
to the date that he would have been promoted to Boiler Plant Operator
WG-11, as outlined in the order below.
On appeal, complainant requested front pay. We find that front pay
is not an appropriate remedy in the instant case. As a general rule,
reinstatement into an appropriate position is preferred to an award of
front pay. Romeo v. Dept. of the Air Force, EEOC Appeal No. 01921636 (July
13, 1992). However, the Commission has identified three circumstances
where front pay may be awarded in lieu of reinstatement: (1) where no
position is available; (2) where a subsequent working relationship between
the parties would be antagonistic; or (3) where the employer has a record
of long-term resistance to anti-discrimination efforts. Keys v. Dept. of
Defense, Defense Logistics Agency, EEOC Request No. 05870464 (May 6,
1988); York v. Dept. of the Navy, EEOC Appeal No. 01930435 (February 25,
1994). Further, the Commission has previously held that if placement
in an appropriate position is not possible, the employer must find a
way to make the victim of discrimination whole until such placement can
be accomplished. 29 C.F.R. Part 1613, Appendix A, Subsection 3; Tyler
v. U.S. Postal Service, EEOC Request No. 05870340 (February 1, 1988).
The record fails to demonstrate that complainant could not be placed in
an appropriate position. Accordingly, complainant is not eligible for
front pay.
Compensatory Damages and Attorney's Fees
Although complainant has requested compensatory damages and
attorney's fees, we note that federal sector complainants prevailing
on discrimination or reprisal claims under the ADEA cannot recover
compensatory damages or attorney's fees. Falks v. Department of Treasury,
EEOC Request No. 05960250 (September 5, 1996); Taylor v. Department
of the Army, EEOC Request No. 05930633 (January 14, 1994); Patterson
v. Department of Agriculture, EEOC Request No. 05940079 (October 21,
1994).
CONCLUSION
Accordingly, we modify the FAD with training and notice requirements as
outlined by the following order.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall immediately offer to place complainant in the
position of Boiler Plant Operator, WG-8, retroactive to December 8,
1994 through November 30, 1996 with any and all benefits that he would
have received. Also within thirty (30) calendar days of the date this
decision becomes final, the agency shall offer to place complainant in
the position of Boiler Plant Operator, WG-10, retroactive to December 1,
1996 with any and all benefits including subsequent promotion to WG-11.
The agency shall compute the appropriate amount of back pay and benefits
due from the date that he would have been promoted to Boiler Plant
Operator, WG-11. 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."
3. The agency shall commit to the complainant in writing that it will
cease from engaging in the unlawful employment practice found in this
case, namely, age discrimination, that it will not engage in similar
unlawful employment practices, that it will provide the complainant a
work place free from hostility, offensive conduct or abuse and that no
reprisal will be taken against the complainant for filing and pursuing
this or any other complaint under Federal EEO law.
4. The agency shall provide a minimum of eight (8) hours of remedial
training for all managers and supervisors located at the Department of
Veterans Affairs Medical Center, Topeka, Kansas facility, to ensure that
acts of age discrimination do not recur, that no retaliatory acts are
taken against any employee who opposes unlawful discrimination and that
persons reporting instances of alleged age discrimination are treated in
an appropriate manner. The training shall include workplace supervisory
and managerial responsibilities under equal employment opportunity laws.
5. 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 Medical Center in Topeka, Kansas
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
October 3, 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
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 Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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 Veteran's Administration Medical Center in Topeka, Kansas,
(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 against an employee
by not selecting him for a position because of his age, in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The facility has been ordered to give the
selecting officials involved training regarding the requirements of the
law referred to in this posting and to ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all Federal equal employment laws.
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 16141 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 At the hearing, complainant withdrew his claim as to the March 22,
1992 nonselection.