01994517
05-11-2001
Wilma J. Hunter, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Wilma J. Hunter v. Department of the Army
01994517
May 11, 2001
.
Wilma J. Hunter,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01994517
Agency No. 09412E0770
Hearing No. 100-96-7279X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) 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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the basis of race
(Black) when:(1) between April 1989 and April 1990, the agency required
her to perform duties of a GS-7 or GS-9; (2) between April 1989 and
1991, the agency did not provide her with job standards, an individual
performance plan and performance appraisals; and (3) the agency subjected
complainant to a hostile work environment by failing to eliminate
racial slurs of management and co-workers, including complainant's
second level supervisor (Supervisor II) stating and referring to
complainant �that N----- will never be promoted;� making racial,
derogatory, and threatening remarks between April 1989 and April 1990;
relocating complainant to another office from March 1990 to October 1990;
failing to provide living accommodations to complainant during temporary
duty beginning in September 1989; forcing complainant to perform certain
work assignments; closely monitoring or watching complainant from March
1990 to October 1990; failing to eliminate physical contact by a third
supervisor in August 1989; and failing to promote complainant to the
GS-7 or GS-9 level. For the following reasons, the Commission affirms
in part and reverses in part the agency's final decision.
The record reveals that complainant was a GS-5 Accounting Technician
at the agency's Mainz, Germany, Military Community, Directorate of
Engineering and Housing. She filed a formal EEO complaint with the
agency on March 29, 1991, alleging that the agency had discriminated
against her as referenced above.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). A hearing commenced on April
8, 1993. On April 9, 1993, the AJ remanded the case to the agency, and
on June 8, 1993, the agency EEO Officer notified the AJ that the parties
had executed a written settlement agreement. Complainant subsequently
alleged that the agency breached the settlement agreement and filed an
appeal requesting that her complaint be reinstated for processing.<1>
The complaint was reinstated and complainant requested a hearing before
an AJ. Following the hearing, the AJ issued a decision on March 2, 1999,
finding no discrimination as claimed on issues (1) and (2). The AJ
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to establish were a
pretext for discrimination.
The AJ stated that testimony at the hearing by complainant's immediate
supervisor (Supervisor I), who began work in complainant's office
in March 1990, indicated that from that date until September 1991,
complainant was the only employee able to perform accounting duties at
the GS-7 level and higher. The record also indicated that the office
suffered from a lack of competent staff prior to March 1990. The AJ
concluded that the fact that complainant was required to perform duties
above her grade level was not because of her race.
The AJ also found that complainant failed to show that the reasons
proffered by the agency for failing to provide complainant with
performance standards, performance appraisals and an individual
performance plan were a pretext for discrimination. Supervisor I
testified that all but one employee in the office, a local national
employee, were without these documents when she reported for duty.
After March 1990, complainant, Supervisor I, and two other supervisors
(Supervisor II and III) all stated that they could not agree on the
appropriate content of complainant's performance standards, and could
not issue performance appraisals without the standards.
The AJ found that complainant was subjected to harassment based on race.
The AJ found that Supervisor II referred to complainant using racial
epithets and directed other derogatory language to her during meetings.
The AJ stated that, although Supervisor II denied using the language,
he was not worthy of belief because his testimony was at odds with
that of complainant and Supervisor I who both testified that, during a
particular meeting, Supervisor II used the racial epithet when making
the statement that complainant would never be promoted. The AJ also
noted incidents in which the racial epithet �N-----� was written on
complainant's car while parked in the enclosed employee lot, and an
application for employment complainant found on her desk in May 1990
contained racial slurs and derogatory racial stereotypes. The agency
argued that complainant fabricated the latter incident because she failed
to specifically describe it in her EEO complaint and affidavit. The AJ
declined to find that the omission impeached complainant's credibility
based on her demeanor at the hearing.
The AJ found no evidence of racially biased motivation in some of the
conduct complainant cited as harassment, namely, offensive hand gestures
aimed at her, the third supervisor striking her with an envelope,
relocating her duty station, denying her living accommodations, and
denying her a promotion. In each, the AJ found that the agency stated
legitimate, nondiscriminatory reasons for its actions. The supervisor
accused of striking complainant also struck a white employee and was
fired for both actions. In addition, complainant's position carried no
promotion potential.
The AJ concluded that, based on the record, the racially motivated conduct
targeted at complainant was sufficiently severe and pervasive to create
an abusive work environment. She noted the number of instances in which
complainant was subjected to racial epithets and insults by Supervisor
II, in addition to the damage to her car and the racially degrading
application form left on her desk The AJ noted evidence in the record
that complainant made several attempts to curb the offensive conduct by
reporting the incidents to various agency officials. Agency officials
confirmed that they heard about the epithet written on complainant's car.
The AJ found the agency's response to the harassment was neither effective
nor appropriate, and therefore imputed liability to the agency.
The agency's final decision adopted the AJ's findings of no
discrimination on issues (1) and (2) and rejected the AJ's decision
finding discrimination on issue (3). Complainant appealed. On appeal,
the agency argues that complainant failed to establish a prima facie case
because she did not show that she was in fact subjected to racial slurs
and racially biased incidents as cited by the AJ. The agency questioned
whether complainant was present when Supervisor II used a racial epithet
to refer to complainant in front of Supervisor I. The agency also noted
again that complainant did not specifically mention the application form
in her complaint.
Pursuant to 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, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws regarding issues (2) and (3). Regarding
issue (2) we find that the agency's response to complainant's claim that
she was denied performance standards and appraisals indicates that the
lack of such was not due to complainant's race. Regarding issue (3)
we find ample evidence in the record supporting the AJ's finding of
a hostile work environment based on race. Complainant's claims that
Supervisor II directed racial slurs, epithets and insults towards her,
and that unknown agency employees defaced her car with a racial epithet
and left the racially offensive form on her desk demonstrate actions
sufficiently severe to create a hostile work environment. On these
issues we discern no basis to disturb the AJ's decision.
However, regarding issue (1), we find that complainant was required to
work at a GS-7 or 9 level while being paid at a GS-5 level because of
her race. Supervisor I testified that she was astounded upon seeing
complainant's work, that complainant was a GS-5. Supervisor I testified
that complainant greatly assisted her in gathering financial information
and putting together the fiscal year budget report. She stated that
complainant performed accounting duties at the GS-7 level and higher.
The agency does not deny that complainant worked at a level beyond
her grade or dispute whether that level was a GS-7 or GS-9. The agency
responds only that complainant's position carried no promotion potential.
Agency officials also admitted that no one else in the office could
perform those higher level duties, thus substantiating complainant's claim
that she worked at a higher grade level than that with which she was paid.
We are not persuaded that the agency had no ability to either change
complainant's duties so that she only performed GS-5 work, or employ
means to upgrade her position to one commensurate with her efforts.
The agency could have requested a desk audit, or provided a temporary
pay increase, by granting the temporary promotion to GS-7 submitted
for complainant by Supervisor I. We find that Supervisor II's use
of a racial epithet while referring to complainant and stating that
she would never be promoted is indicative of a management decision to
deny complainant pay commensurate with her work because of her race.
The Commission orders that complainant be paid at the GS-9 level because
the agency admitted that complainant worked beyond her GS-5 level, but
failed to provided information as to whether that work was at a GS-7
or GS-9 level. The Commission thus views the statements provided by
complainant and Supervisor I regarding her level of work in the light
most favorable to complainant.
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's decision with respect to issue (2) and REVERSES the decision
finding no discrimination on issues (1) and (3). The agency is instructed
to comply with the order as set forth below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. Within 30 days of the date this decision becomes final, the agency
shall provide complainant with back-pay representing the difference
between GS-5 pay and GS-9 pay, with interest, including any increases in
pay and set raises, retirement benefits (if applicable), and any other
benefits to which she would have been entitled, for the period April
1989 through April 1990.
2. The agency shall ensure that complainant does not work under the
supervision of Supervisor II.
3. The agency shall provide appropriate EEO training for the agency
officials involved in supervising complainant and the employees who
worked with complainant. This training shall include information on
actions constituting harassment and employer liability for harassment.<2>
4. The agency shall award appropriate attorney's fees, as set forth
below.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Mainz, Germany, Military Community,
Directorate of Engineering and Housing 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 (H0900)
If complainant 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 11, 2001
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq..has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY, OR IN REPRISAL FOR PROTECTED
ACTIVITY with respect to hiring, firing, promotion, compensation, or
other terms, conditions or privileges of employment.
The United States Department of the Army, Mainz, Germany, Military
Community, Directorate of Engineering and Housing supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The United States Department of the Army, Mainz, Germany, Military
Community, Directorate of Engineering and Housing has been found to have
discriminated against an employee based on race by failing to promote
the employee and by subjecting the employee to harassment and creating a
hostile work environment. The agency has been ordered to retroactively
promote the employee and to conduct training on all relevant EEOC rules
and regulations for all responsible officials and employees. The United
States Department of the Army, Mainz, Germany, Military Community,
Directorate of Engineering and Housing will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The United States Department of the Army, Mainz, Germany, Military
Community, Directorate of Engineering and Housing 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 1614
1 See Hunter v. Department of the Army, EEOC Appeal No. 01941115 (August
4, 1994).
2 Complainant is not entitled to compensatory damages because the
incidents leading to her claims occurred prior to November 1991, the
effective date of the Civil Rights Act of 1991, 42 U.S.C. � 1981a,
which provided the remedy of compensatory damages for federal employees..