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)).