01A05315_r
08-23-2002
Ezzard Batiste, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Ezzard Batiste v. Department of the Air Force
01A05315
August 23, 2002
.
Ezzard Batiste,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A05315
Agency No. AL-900000-728
Hearing No. 380-98-8282X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from an agency final order in the above-captioned matter.
In his complaint, complainant claimed discrimination and harassment on
the bases of race (black), national origin (African American), disability
(back), and in reprisal for prior protected activity, regarding the
following incidents:
In October 1997, complainant's supervisor accused him of altering the
e-mail setting and treated him disrespectfully; and
The agency improperly denied complainant's repeated requests (from June
1997 to October 1997) for a suitable chair as a reasonable accommodation
for his lumbar spine disorder.
The agency transferred the complaint to an EEOC Administrative Judge
(AJ), who conducted a hearing, and rendered a decision on May 9, 2000.
Regarding incident 1, the AJ found that neither discrimination nor
harassment was proven by a preponderance of the evidence. Regarding
incident 2, however, the AJ found that a preponderance of the evidence
demonstrated that the agency discriminated against complainant on the
basis of disability. The AJ awarded complainant compensatory damages and
reasonable costs, and ordered the agency to undertake various actions to
prevent future incidents of discrimination against complainant or others,
to include posting a notice about the finding of discrimination and
providing EEO training. On June 23, 2000, the agency issued a final
order fully implementing the AJ's decision.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the Commission AFFIRMS the agency
final order because the Administrative Judge's ultimate findings and
award of remedies are supported by the record.
Finally, although the record reflects that the agency has initiated
compliance with the AJ's order of remedies, to the extent that compliance
has not been completed, we instruct the agency to undertake the actions
set forth in the ORDER below.
ORDER
The agency shall insure that the chair provided to complainant as an
accommodation for his lumbar spine disorder remains in good working
order and to continue to accommodate complainant's inability to lift
over 25 pounds.
To the extent that it has not already done so, the agency shall pay
complainant all costs to which he may be entitled under Federal law in
connection with this complaint, as set forth in 29 C.F.R. � 1614.501,
specifically to include copying of documents and travel reimbursement.
To the extent that it has not already done so, the agency shall pay
complainant compensatory damages as follows:
For the 95-days that the agency failed to provide complainant with
a �decent chair,� resulting in complainant's emotional distress and
physical pain, the agency shall pay complainant $25.00 per each day,
for a total of $2,375.00.
If it has not already done so, the agency shall conduct EEO training
for all responsible management officials identified by complainant in
his complaint, as well as for the staff in the Comptrollers Office and
the Civilian Personnel Office at Elmendorf Air Force Base, to insure
that they are aware of their obligations, responsibilities, and rights
under the EEOC's regulations and EEO law, including the right to work
in an environment free from disability discrimination and to use the EEO
system to remedy perceived violations of EEO laws. 29 C.F.R. � 1614.203
mandates that Federal agencies must be model employers for complying
with disability laws.
The agency shall take no retaliatory action against complainant for filing
this discrimination complaint, and the agency shall insure that in the
future complainant and all other disabled applicants and employees at
Elmendorf Air Force Base are not subjected to the same, similar, or any
acts of disability discrimination.
If it has not already posted a similar notice in a similar manner,
the agency shall post at all facilities within the authority of the
Comptroller's Office and the Civilian Personnel Office, a copy of the
attached notice. The notice should be signed by a duly authorized agency
representative and should be posted immediately upon the agency's receipt
of this decision. The notice should be maintained for a period of at
least 90 days in conspicuous places where the agency customarily posts
notices and it expects its employees and applicants for employment
to see. The agency should take all reasonable steps to insure that
the notices are not altered, defaced or covered by any other material.
The notices should advise employees and applicants of their rights to
be free of employment discrimination and their EEO remedies.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 23, 2002
__________________
Date