William E. Warner, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 21, 2000
01962143 (E.E.O.C. Mar. 21, 2000)

01962143

03-21-2000

William E. Warner, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


William E. Warner v. Department of Justice

01962143

March 21, 2000

William E. Warner, )

Complainant, )

) Appeal No. 01962143

v. ) Agency No. P-91-8012; P-91-8017; P-93-8288

) Hearing No. 340-94-3313X - 3315X

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

______________________________)

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission

from a final agency decision (FAD) concerning his claims that the

agency violated 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).

At the time of the alleged discrimination, complainant was employed as a

GS-7 Recreational Specialist at the San Diego Metropolitan Correctional

Center ("MCC"), San Diego, California. Complainant filed three formal

complaints between June 1991 and June 1993. The issues presented are

whether complainant was discriminated against because of his race (White)

and in reprisal for prior EEO activity when: (1) he was not selected as

a Recreational Supervisor in March 1991 pursuant to vacancy announcement

number 910SDC-25A; (2) negative entries were placed in his performance

logs starting October 1990; (3) he was continuously denied a career

ladder promotion to grade GS-9; and (4) the agency retaliated against

him for testifying in a co-worker's EEO complaint.

After the agency completed the investigation of each of the complaints,

complainant requested a hearing before an EEOC Administrative Judge (AJ).

The AJ consolidated the three complaints and, after four days of hearings

at which twenty five witnesses testified, issued a recommended decision

on September 26, 1995, finding that complainant proved most of his claims

of retaliation. The AJ, however, found that complainant failed to prove

any race discrimination.

On December 5, 1995, the agency issued a FAD accepting the AJ's

findings of no racial discrimination but rejecting the AJ's findings

of retaliation. It is from this FAD that complainant now appeals.

Neither party submitted any contentions on appeal. As explained below,

we find that the AJ's findings are well supported by the evidence of

record and are based on credibility assessment of witness testimony.

We discern no reason to disturb any of the AJ's findings.

The AJ found that complainant failed to prove race or reprisal

discrimination as to issue number 1, and failed to prove race

discrimination as to issues number 2 and 3. Specifically, the AJ found

that complainant failed to prove that he was better qualified than the

non-White selectee for the March 1991 supervisory position; that he was

treated differently because of his race when negative log entries were

made in his performance logs; or that any similarly situated non-White

employee received a career ladder promotion during the relevant time

period. Further, the AJ found that complainant failed to prove reprisal

discrimination regarding three negative log entries made in March and

April 1991 because he did not participate in any EEO activity until his

first EEO contact in May 1991.

However, based upon credibility findings in favor of complainant and

against the responsible management officials, the AJ found that the

agency retaliated against complainant as to the remaining claims in

issues number 2 and 3.<2> The AJ made extensive factual findings

rejecting the agency's articulated reasons as pretexts for retaliation.

The AJ found that the agency officials retaliated against complainant by

making unwarranted negative entries in his performance log on June 14,

1991 (for failing to report to the supervisor regarding his whereabouts);

on June 10, 1992 (for speaking to a recently terminated employee outside

the agency premises); and on May 11, 1994 (for too many cigarette butts

and other trash on the roof and for not enforcing the smoking ban).

In each instance, the AJ found that complainant's EEO activities

occurred in close proximity to the dates when the unwarranted negative log

entries were made: complainant informed the warden on June 7, 1991 that

he intended to file an EEO complaint; an EEO investigator was scheduled

to investigate complainant's first EEO complaint between June 15 and 17,

1992; complainant testified at the hearing of a co-worker's complaint

before an EEOC AJ in February 1994; and a pre-hearing conference was

scheduled regarding the instant complaints for May 18, 1994.

Complainant's acting supervisor in June 1991 testified that she believed

that RMO1 had �targeted' complainant by singling him out to report his

whereabouts to her even though there were other employees who arrived

late and whose whereabouts were not known to her. On June 14, 1991,

RMO1 made a negative entry in complainant's performance log for his

purported failure to report his whereabouts to the acting supervisor on

an hourly basis and his inappropriate response to the acting supervisor.

The acting supervisor did not believe that the negative entry was

warranted. Further, the AJ found RMO1 and RMO2 responsible for making an

inappropriately negative entry for complainant's meeting with a recently

terminated employee when it was apparent that complainant was engaged in

union activity as a shop steward. The AJ found that RMO1 and RMO2 did so

in reprisal for complainant's EEO activity, and not his union activity.

Lastly, the AJ found that complainant's then first-line supervisor and

RMO1 made inappropriate log entries regarding the cigarette butts and

other trash on the roof as well as for failing to enforce the smoking ban.

After the first-line supervisor's log entry regarding the trash and

cigarette butts was rescinded when complainant successfully established

that there were no inmates available to do the necessary clean-up, RMO1

wrote the log entry falsely blaming complainant for failing to enforce

the smoking ban. Witness testimony established that the inmates were

allowed to buy cigarettes at the commissary on the roof and frequently

violated the no-smoking ban and that complainant usually wrote incident

reports about inmates who violated the smoking ban.

A former warden (between July 1992 and March 1994) testified that it

was unusual for someone with a fully successful evaluation not to get a

promotion to the next grade in a career ladder position. The AJ found

that complainant had received overall fully successful performance

evaluations since 1989, and since the 1991-92 performance appraisal he

had not received any minimally satisfactory ratings on any element of his

performance appraisals. Complainant's first-line supervisor recommended

complainant for a career ladder promotion at least as early as 1993.

The AJ did not find the agency's explanation for complainant's failure

to receive the career ladder promotion believable. For example, the

AJ found that complainant was not responsible for the alleged delays

in the inmates' ability to reach the roof for recreation because the

delays were due to poor building design and scheduling of the inmates

for recreation time.

After holding three days of hearings for the liability phase, the AJ

held a one-day hearing to consider complainant's claim for compensatory

damages. The AJ found that complainant's testimony established that he

had suffered from mild emotional distress since April 1992 as a result of

the agency's retaliatory actions. The AJ found that complainant suffered

from sleeplessness, headaches, nausea and chest pains during the period

in question. However, the AJ found that complainant only once sought

medical help for his ailments and that there was insufficient objective

evidence to support his claim that his social and familial relations

were harmed by the agency's retaliatory actions or that he suffered any

tangible pecuniary losses.<3>

As remedy, the AJ recommended rescission and expungement of the June 1991,

June 1992 and May 1994 negative log entries from complainant's personnel

records; a promotion to GS-9 retroactive to the date of his April 1992

performance appraisal with backpay; any computer training necessary for

complainant to perform at the GS-9 level; reasonable attorney's fees

and costs; notice posting; and a moderate sum of compensatory damages

for complainant's psychological and physical distress.

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).

After a careful review of the record in its entirety, we find that the

AJ's recommended decision sets forth the relevant facts and properly

analyzes the appropriate regulations, policies and laws. Based on the

evidence of record, the Commission discerns no basis to disturb the

AJ's findings, particularly when those findings are based on the AJ's

assessment of the credibility of witness testimony. We also affirm

the AJ's award of nonpecuniary compensatory damages for psychological

and physical distress caused by the discrimination, and we deem a

sum of $5,000.00 appropriate in view of the AJ's recommendation that

complainant should be awarded a moderate sum for compensatory damages.

Considering that nonpecuniary damages must be limited to an amount

necessary to compensate complainant for the actual harm he endured due

to discrimination, we find this sum adequate and consistent with the

amounts awarded by us in similar cases. See, e.g., White v. Department

of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997); April

v. Department of Agriculture, EEOC Appeal No. 01963775 (June 5, 1997);

Demeuse v. United States Postal Service, EEOC Appeal No. 01950324 (May

27, 1997).

Accordingly, the FAD is AFFIRMED to the extent that the agency adopted

the AJ's findings of no racial discrimination. The FAD is, however,

REVERSED to the extent that the agency found no retaliation, and the

agency is ORDERED to comply with the terms of the Order below.

ORDER

1. Within fifteen (15) calendar days of the date this decision becomes

final, the agency shall rescind and expunge all negative log entries

between June 1991 and May 1994 from complainant's official personnel

record;

2. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall promote complainant to a GS-9 Recreational

Specialist position retroactive to the date of his performance appraisal

in April 1992, with backpay, interest, seniority, and all other benefits

in accordance with 29 C.F.R. 1614.501(c). If there is a dispute regarding

the exact amount of back pay and other monetary benefits, the agency shall

issue a check to complainant for the undisputed amount within thirty (30)

calendar days of the date the agency determines the amount it believes

to be due. 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 set forth below.

3. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall notify complainant in writing whether he is

required to attend any computer training, and if so, it shall give

complainant a reasonable opportunity to complete such training on official

time and at the agency's expense.

4. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall issue complainant a check for $5,000.00 in

nonpecuniary compensatory damages. See West v. Gibson, 119 S.Ct. 1906

(1999).

5. Within sixty (60) calendar days of the date this decision

becomes final, the agency shall provide training to the responsible

management officials in the prohibitions against reprisal for protected

activity under Title VII of the Civil Rights Act of 1964, as amended.

Documentation evidencing completion of such training shall be submitted

to the Compliance Officer within thirty (30) calendar days thereafter.

6. The agency shall post at the San Diego Metropolitan Correctional

Center, San Diego, California, 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 within ten (10) calendar

days of the expiration of the posting period.

7. 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.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney, he 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(e).

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

complainant. If the agency does not comply with the Commission's order,

complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). 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, 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 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 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:

3/21/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 The AJ found that neither of the two principal agency officials

responsible for discrimination were credible witnesses. She found that

RMO1 (complainant's first-line supervisor between June 1990 and 1991 and

his second-line supervisor since June 1991) and RMO2 (an Associate Warden

of Operations) lacked credibility. Their testimony was contradicted

by documentary evidence and inconsistent with the testimony of other

witnesses. On the other hand, the AJ found that there were no large

discrepancies between complainant's testimony and that of the other

witnesses, nor did complainant avoid answering questions, "fail to

remember," or otherwise appear less than forthright.

3 The AJ inappropriately rejected complainant's claim for $500.00 for

office supplies and photocopying costs incurred in the processing

of this case. The AJ considered this as a claim for pecuniary

compensatory damages, rather than as a claim for costs for the successful

prosecution of complainant's complaints. Upon remand, the agency shall

consider complainant's claim for these costs appropriately under 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)).