Truett Stith, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 3, 2000
01995432 (E.E.O.C. Oct. 3, 2000)

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.