01970458
03-12-1999
Joseph L. Kinnison, Appellant, v. Bruce Babbitt, Department of the Interior, (Bureau of Indian Affairs), Agency.
Joseph L. Kinnison, )
Appellant, ) Appeal No. 01970458
v. ) Agency No. BIA 94-002
Bruce Babbitt, ) Hearing No. 310-95-5442X
Department of the Interior, )
(Bureau of Indian Affairs), )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. See EEOC Order No. 960.001.
The issue presented is whether the EEOC Administrative Judge (�AJ�)
properly determined that appellant was only entitled to an award of
declaratory relief, injunctive relief, attorney's fees and costs on the
basis that the agency had meet its burden of establishing that the same
actions would have been taken even absent the unlawful retaliation.
Appellant timely sought EEO counseling and filed his instant complaint,
in which he contended that he was subjected to reprisal for testifying
with respect to another employee's EEO complaint. The alleged reprisal
included being humiliated by his supervisor on numerous occasions,
threatened with the loss of his position, told he was incompetent,
and given a low performance rating for fiscal year 1993. The agency
accepted and processed the complaint in accordance with all procedural
prerequisites. The complaint was then heard before an EEOC Administrative
Judge ("AJ") who thereafter issued a recommended decision ("RD") finding
that appellant had been subjected to reprisal. However, the AJ also
found that the agency had meet its burden of establishing that the same
actions would have been taken even absent the unlawful retaliation.
Accordingly, as relief, the AJ only recommended that the agency post a
notice and pay appellant's reasonable attorney's fees. (Appellant was
no longer employed by the agency at the time of the hearing.) After the
agency issued its FAD adopting the RD, appellant timely appealed and
complains that he has not received justice or been made whole for the
time and effort, and mental strain, of pursuing his complaint.
The record reflects that, in July 1992, appellant joined the agency
as a Supervisory Highway Engineer, GS-12, supervising approximately 50
employees, including two subordinate supervisors. Appellant's supervisor,
the Area Roads Engineer, took the actions of which appellant complained.
In January 1993, appellant gave testimony to an EEO Investigator in
connection with an EEO complaint filed by another employee. Appellant
contended that in April 1993, his supervisor informed him that he (the
supervisor) knew everything that appellant had said when he testified
and that the supervisor acted agitated about the testimony.
While the supervisor denied making this statement, the AJ found that he
had done so. The AJ further found that the supervisor stated to another
employee (the Design Engineer) that appellant and another person had
not been truthful in their testimony to the EEO Investigator.
With respect to appellant's allegation that the supervisor humiliated
him, appellant cited various examples, including an incident where the
supervisor called appellant and one of appellant's subordinates into the
supervisor's office and said that appellant had done some maps incorrectly
and that the subordinate was to redo them. However, the subordinate later
told appellant that they had been done correctly. As another example, the
supervisor also stated in a group meeting that appellant had communicated
improperly with a tribal member, although appellant maintained that the
supervisor had been with him when the communication was made, and did
not offer any criticism at that time. In addition, appellant contended
that the supervisor threatened him with the loss of his position when,
while appellant was still serving his probationary period, the supervisor
told him that he would not be recommended for a permanent position.
(However, appellant was converted into permanent employee status after
completing his probationary period.) With respect to the 1993 performance
rating, the supervisor rated appellant's overall performance as �Fully
Successful,� and appellant contended that his performance merited a higher
rating. Further, in August 1993, when appellant submitted an application
for another position, the supervisor rated him as �Satisfactory� on all
elements except for one element concerning management ability, for which
he rated appellant as �Rarely Successful.�
After reviewing the testimony of appellant, the supervisor, the Design
Engineer and a Construction Engineer, the AJ found that there �was a
deep-seated conflict between� appellant and his supervisor. RD at 10.
The AJ found that this conflict was �fueled by several things.� Id.
For example, appellant's second level supervisor (the Assistant Area
Director, who was retired) had averred that not only did professional
differences come up weekly between appellant and the supervisor, but
that each accused the other of poor engineering. On investigation,
the Assistant Area Director concluded that appellant's accusations were
not meritorious. In addition, the Assistant Area Director and the
supervisor both believed that appellant contacted the Oklahoma State
Board of Registration in April 1993 to complain that the supervisor
was not a registered engineer in the State of Oklahoma. As a result,
the Board contacted the supervisor and, while it was later determined
that State registration was not required to perform his duties as a
Federal employee, this episode caused the supervisor �a considerable
embarrassment.� Report of Investigation at 100.
The Design Engineer also testified that the supervisor was a very
demanding perfectionist who was harsh on number of individuals, and that
appellant and the supervisor �got along like oil and water.� Hearing
Transcript (�HT�) at 90. The Design Engineer testified that appellant
told him that he (appellant) had reported the supervisor's lack of a
State engineering license to the State Board.
The Construction Engineer testified that the supervisor �browbeat� and
�talk[ed] down to� his subordinates �like he was talking to a kid,� and
�was mean all the time.� HT at 67-71. The Construction Engineer did
not notice that the supervisor �became [any] meaner� to appellant at
any point during appellant's tenure. HT at 71.
There also was testimony to the effect that appellant was an average
engineer, and that the supervisor instructed his subordinates to rate
their subordinates as no more than �Fully Successful� even if they did
the best possible job.
As noted above, the AJ found that the supervisor had confronted appellant
about his testimony in the other individual's EEO complaint, and that
the supervisor stated to the Design Engineer that appellant and another
person had not been truthful in their EEO testimony. The AJ found that
these actions constituted direct evidence that the supervisor harbored an
animus toward appellant based on his prior protected EEO activity.<1>
Therefore, the AJ determined that a retaliatory animus was �one of
the factors which played a role in [the Supervisor's] treatment of
[appellant].�
Accordingly, for the appropriate analysis of the evidence in this
complaint, the AJ cited to, inter alia, Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), and noted that the Civil Rights Act of 1991 (�CRA�),
which became effective on November 21, 1991, reversed the Price Waterhouse
approach to liability. Under the CRA, an employing agency is liable for
discrimination once a prohibited basis is found to be a motivating factor
in an employment decision.<2> Because the supervisor made retaliatory
statements, and the AJ found that such statements were sufficiently linked
with his treatment of appellant, the AJ found that appellant's protected
EEO activity was a motivating factor in the supervisor's treatment of
appellant. Pursuant to the CRA, liability is established once the trier
of fact has accepted direct evidence. EEOC Policy Guidance on Recent
Developments in Disparate Treatment Theory, No. 915.002, July 14, 1992,
Section III.
Further, once a complainant proves that discrimination or retaliation
was a motivating factor, the burden of proof shifts to the employer
to establish that it would have taken the same action absent the
discrimination or retaliatory animus. See EEOC Policy Guidance,
supra. Here, after reviewing the testimony, the AJ concluded that the
agency had met its burden to establish that, even in the absence of a
retaliatory animus, the supervisor would have subjected appellant to
the treatment which he found humiliating and would have issued the same
performance rating. In this regard, the AJ stated that she found that
the most credible testimony offered at the hearing was provided by the
Design Engineer and the Construction Engineer, who testified that the
supervisor's treatment of appellant did not change during appellant's
tenure and that the supervisor treated everyone below him in a similar
manner. The Commission notes that it generally will not disturb the
credibility determination of an AJ where, as here, such determinations
are based on the observation of the witnesses. Esquer v. United States
Postal Service, EEOC Request No. 05960096 (September 6, 1996); Willis
v. Department of the Treasury, EEOC Request No. 05900589 (July 26, 1990).
Under these circumstances, the relief permitted pursuant to the CRA is
limited. For example, an employer making this showing is not required
under the CRA to pay compensatory damages, or to be subject to any order
requiring backpay or reinstatement. See, e.g., EEOC Policy Guidance,
supra; Parvin v. Department of Veterans Affairs, EEOC Request No. 05950017
(June 20, 1996); Hill v. United States Postal Service, EEOC Appeal
No. 01970305 (September 1, 1998). The employer is, however, required to
pay appropriate attorney's fees and may be ordered to post a notice. Id.
In its FAD, the agency adopted the RD, and stated that the agency
would post the notice recommended by the AJ and would pay appellant's
reasonable attorney's fees upon receiving a statement of fees and costs
in accordance with 29 C.F.R. �1614.501. However, to ensure that such
actions were in fact taken, the Commission sets forth such relief in
the Order set forth below. The Commission notes that the CRA permits
an award of injunctive relief and, while appellant has since left the
agency's employment, the Commission finds that requiring training for the
supervisor regarding the protection of the rights of employees engaged
in protected EEO activities is in the nature of injunctive relief.
Accordingly, the Commission modifies the FAD to require such training.
For the reasons set forth above, the Commission discerns no basis to
disturb the AJ's findings in this matter. Therefore, it is the decision
of the Commission to AFFIRM the FAD as modified and, to the extent it
has not already done so, the agency shall provide appellant the relief
ordered below.
ORDER (D1092)
To the extent it has not already done so, the agency shall:
(1) Process any statement of attorney's fees and costs that is timely
filed by appellant's attorney for services rendered through the issuance
of the final agency decision in this matter, pursuant to the provisions
of 29 C.F.R. �1614.501. Appellant is advised that pursuant to this
regulation, such a statement must be filed within 30 days of receipt
of this decision, and must include the information specified in the
regulation. A copy of either a final agency decision on the award, or
an agreement by the parties resolving the award, whichever is applicable,
shall be submitted to the Compliance Officer as referenced below.
(2) Conduct training for the supervisor regarding his obligations under
Title VII of the Civil Rights Act of 1964.
(3) Post a notice at the Muskogee Area Office, Muskogee, Oklahoma,
in accordance with the Posting Order below.
(4) 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 verifying
that the foregoing corrective actions have been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Muskogee Area Office, Muskogee,
Oklahoma, facility 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.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request
containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 12, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1As noted by the AJ, direct evidence is an action or statement which
reflects a discriminatory or retaliatory attitude, and which correlates
to the challenged acts. See Parvin v. Department of Veterans Affairs,
EEOC Request No. 05950017 (June 20, 1996) (citing Caban-Wheeler v. Elsea,
904 F.2d 1549, 1555 (11th Cir. 1990)).
2Section 107 of the CRA, Pub. L. 102-166, adding Section 703(m) to Title
VII of the Civil rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.