Proving a federal agency caused a destruction of evidence is a very difficult task, yet if you can prove it you have a clear path to success at winning your claim.
Celeste M. Butler,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0720090010
Hearing No. 320-2005-00100X
Agency Nos. HS-04-TSA-001003,
TSAF-04-0584
DECISION
Concurrent with its November 17, 2008 final order, the agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. §1614.405(a). On appeal, the agency requests that the Commission affirm its rejection of an EEOC Administrative Judge’s (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. On December 19, 2008, complainant timely filed her cross appeal to the agency’s final order. We have consolidated the appeals for consideration. For the following reasons, the Commission REVERSES the agency’s final order.
ISSUES PRESENTED
The issues presented are whether the Administrative Judge properly framed
complainant’s claim, applied the relevant case law to complainant’s
Rehabilitation Act claim, drew an adverse inference against the agency
and therefore found that complainant had been discriminated against, and
whether the remedies awarded pursuant to that finding of discrimination
were properly determined.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Transportation Security Screener at the Billings-Logan International
Airport in Billings, Montana. She was hired by the agency on December
8, 2002. The position description specified that applicants must be
able to lift and carry up to 40 pounds, which complainant could do.
Complainant first injured her shoulder in February 2003, when she was
assigned to lift bags over 50 pounds. She re-injured her shoulder and
arm at least three more times over the course of the next eight months.
She requested an accommodation of a lifting restriction of 10 pounds
or less, but was denied. Complainant was assigned to positions in both
baggage and passenger screening during this time period.
On September 13, 2003, complainant injured her left arm and hand when
lifting a 72-pound bag. She filed for Office of Workers’ Compensation
Programs (OWCP) benefits, and beginning on September 16, 2003, she
was restricted by her doctor from working, and did not return to work.
She entered a nonpay status on November 1, 2003. On January 4, 2004,
she applied for disability retirement. On January 23, 2004, the agency
sent her a termination notice1, for non-disciplinary reasons, specifying
that she was “unfit to perform the duties of [her] position or any other
position” based on her medical restrictions.
On April 5, 2004, complainant filed an EEO complaint alleging that she was
discriminated against on the bases of sex (female), physical disability
(shoulder injury, arm injury and hives), mental disability (depression
and Post Traumatic Stress Disorder (PTSD)), and age (55) when:
1) between December 2002 and September 2003, she was treated less
favorably than her co-workers when she was assigned to baggage screening
more often than her co-workers; and
2) on January 24, 2004, she was terminated from employment with the
agency.
After 180 days from the filing of her formal complaint had elapsed
without the agency completing the Report of Investigation (ROI),
complainant requested a hearing before an EEOC Administrative Judge (AJ)
on December 13, 2004. The agency completed the ROI on February 2, 2005,
and submitted it to complainant and the AJ at that time. The case was
first assigned to AJ-1, who oversaw the majority of the hearings process,
submissions of motions, and discovery.
Although the agency had defined complainant’s complaint solely in
reference to her termination, AJ-1 issued an Order on February 28, 2006,
in which he found that the complaint also encompassed the “agency conduct
leading up to her termination.” He specifically defined the complaint
as to include issue 1, listed above. He also noted that complainant
had claimed that because she was required to lift more than the weight
specified for the position, and was assigned to baggage screening more
than her younger, male co-workers, her work-related injuries were a
direct result of the discrimination and were the cause of her inability
to perform her job and hence, her termination. In the same Order, AJ-1
denied the agency’s Motion to Dismiss or in the Alternative, Motion for
Findings and Conclusions without a Hearing.
In an Order dated March 24, 2006, AJ-1 also allowed the parties “to
conduct limited discovery for a short additional period of time” on the
Motion of complainant. Complainant requested a copy of the logbook
which contained the work assignments for each screener, covering the
period of time complainant was at the agency, among other information.
In the agency’s response to complainant’s discovery request, it indicated
that any logbook from that time period was no longer available.
Complainant filed a Motion to Compel the agency to produce the logbook. On
May 17, 2006, AJ-1 issued an Order in which he ordered the agency to
produce the logbook, or to provide evidence regarding its destruction,
and a copy of the written policy governing its destruction, or other
evidence which would support the agency’s contention that the information
had been lawfully destroyed. He gave notice to the agency that if it
failed to comply with his Order, the agency could be subject to sanctions
as provided for in 29 C.F.R. § 1614.109(f)(3).
The agency responded on May 26, 2006, notifying AJ-1 that it did not
have the logbook, that there was no process or requirement to keep those
records, and that the assignment sheets contained in the logbook were
destroyed on a daily basis at the end of each shift. It represented
that there was no written policy governing destruction of these records,
but rather there was an informal verbal agreement in place.
On June 1, 2006, AJ-1 issued an Order Regarding Issues to be Addressed
at the Hearing, and Order Pursuant to 29 C.F.R. § 1614.109(f)(1).
He specified that the first issue to be addressed at the hearing was the
existence of the logbook, preliminarily finding that there was “at least a
threshold showing that a logbook did exist which contained screener work
assignment information,” and that there was probable cause to believe
that the logbook was destroyed after complainant filed her complaint.
AJ-1 stated that after making a finding at the hearing as to whether the
logbook existed, he would rule on whether the agency should be subject
to sanctions for its destruction, noting that he was considering whether
an adverse inference would be the appropriate sanction. He also ordered
that the agency produce several of its records management and retention
policies which were in effect at the relevant time.
The agency filed a Motion for Reconsideration on June 6, 2006, in which
it argued that it was not until after AJ-1’s Order on February 28,
2006 that the agency was put on notice that complainant’s complaint
encompassed a discriminatory work assignments issue. On June 9, 2006,
AJ-1 held that argument to be without merit in that complainant had raised
with the EEO Counselor, and in her formal complaint, her allegations that
she had been subjected to harassment and a hostile working environment,
and the alleged unequal treatment with regard to work assignments.
AJ-1 held a hearing on June 19 and June 20, 2006. After hearing testimony
regarding the logbook in question, AJ-1 made the following rulings: 1)
a logbook existed; 2) the logbook was improperly destroyed; 3) the agency
was on notice that the logbook existed and should not have been destroyed
after the filing of complainant’s EEO complaint; and 4) the information
contained in the logbook would have reflected unfavorably on the agency.
He further found, making an adverse inference, that the information in the
logbook would have shown that complainant was discriminatorily given more
onerous and burdensome work assignments than screeners of the opposite
sex. The agency was barred from presenting evidence to the contrary.
AJ-1 also ruled that the agency failed to comply with his Order to
produce its records management and retention policies, and failed to
show good cause as to why it did not do so. Another adverse inference
was made, namely that those records retention policies would have shown
that the policies were in effect at the time of complainant’s employment
at the agency, that the policies would have governed the forms which
were part of the logbook, and that those logbook forms would have had
to be retained beyond the date of complainant’s EEO complaint, as they
comprised essential evidence to complainant’s claim.
The case was subsequently reassigned to a second AJ (AJ-2), on July
1, 2008. The agency filed a Request for Reconsideration of Prior
Administrative Judge’s Rulings on August 2, 2008, which AJ-2 denied on
September 25, 2008.
AJ-2 issued a decision on October 8, 2008. In her decision, AJ-2 first
reaffirmed AJ-1’s rulings and sanctions. She noted that the “destruction
of essential evidence when the agency had an absolute duty to preserve
this evidence warrants an adverse inference against the agency.”
She found that the adverse inference made, that the information in
the logbook would have shown that complainant was discriminatorily
given more onerous and burdensome work assignments than people of the
opposite sex, supported a finding that complainant met her prima facie
cases of disparate treatment and hostile work environment. AJ-2 then
found that AJ-1 erred in not extending the adverse inference to age and
to disability as well.
AJ-2 also affirmed AJ-1’s issuance of a sanction as a result of the
agency failing to comply with AJ-1’s Order to provide the documents on
its retention policies. AJ-1 barred the agency from proffering evidence
pertaining to the content of the destroyed logbook, which could have
shown that complainant’s assignments were not more onerous than those
of her younger, male co-workers. As such, AJ-2 ruled that the agency
had failed to articulate a legitimate, nondiscriminatory reason for
complainant’s work assignments, which led to her eventual termination.
AJ-2 addressed the agency’s arguments that it was not on notice that
it needed to retain the logbook, or any other documents relating to
complainant’s work assignments, that the evidence showed that the logbook
did not exist, and that under the Aviation and Transportation Security
Act (ATSA) complainant’s complaint should be dismissed. AJ-2 found each
of those arguments to be without merit. She concluded that complainant
had proven discrimination by a preponderance of the evidence, finding
that complainant was discriminated against on the bases of sex, age and
disability with respect to work assignments, and when she was terminated
from employment with the agency.
AJ-2 then awarded complainant the following remedies. Complainant would
be entitled to back pay, with interest, and benefits, dating to November
1, 2003, when she entered into a nonpay status, until the date AJ-2’s
decision becomes final. AJ-2 found that complainant was entitled to
$45,000.00 in non-pecuniary compensatory damages. Complainant was
also awarded compensation for loss of future earnings (and benefits),
as opposed to front pay, as she had “suffered an irreparable harm which
rendered her disabled and unable to return to work at the agency or any
other office.” The agency was to compute the amount of lost earnings
by assuming that complainant would have remained with the agency until
retirement, starting from the date AJ-2’s decision becomes final until
such time as she would have retired upon her 62nd birthday (through
October 11, 2010). AJ-2 found that complainant was not entitled to
attorney’s fees as the attorney formerly designated as her representative
had not filed a verified statement of attorney’s fees in support of his
request for $750.00. The agency was also required to post a notice of
discrimination at complainant’s former work place.2
The agency subsequently issued a final order rejecting the decisions
of both AJ-1 and AJ-2. The agency timely filed the instant appeal, and
complainant timely filed her cross-appeal of the agency’s rejection of
the finding of discrimination and award of remedies.
CONTENTIONS ON APPEAL
The agency makes several contentions on appeal. First, the agency
claims that AJ-1 erred when he redefined complainant’s complaint to
encompass the discriminatory work assignments claim, and that therefore
the agency was not on notice that this claim should be part of the EEO
Investigation. It also claims that AJ-1 should not have defined the
complaint to include a claim of hostile work environment, and that such
a claim would be untimely.
The agency had argued before AJ-1 that the ATSA superceded the
Rehabilitation Act and that therefore complainant’s Rehabilitation Act
claim must fail. It concedes that as a result of our ruling in Getzlow
v. Department of Homeland Security, EEOC Appeal No. 0120053286 (June 26,
2007) that that argument is now “untenable.” However, it does posit on
appeal (as it did before AJ-2) that complainant would still need to meet
an ATSA-mandated standard, which complainant cannot meet. The agency
argues that complainant would have to be able to lift up to 70 pounds,
and that her inability to meet that standard justified her termination.
The agency concedes that the vacancy announcement for the Transportation
Security Screener position only specifies the ability to lift up to 40
pounds, but states that this is not the “medical standard.” It urges
the Commission to extend Getzlow to currently-employed screeners as
well as applicants for employment, and find that an inability to meet an
ATSA-mandated employment standard cannot be overridden by the requirement
of the Rehabilitation Act to provide reasonable accommodations.
The agency next argues that the drawing of an adverse inference from
its inability to produce the logbook was inappropriate. It claims that
because it was not truly on notice that discriminatory work assignments
were part of complainant’s claim, and were not part of the accepted claim,
it should not be penalized for the destruction of those records. It also
argues that AJ-1’s ruling that such a logbook even existed was contrary
to the weight of the evidence. The agency states that the evidence shows
that assignments were tracked on a “daily checkpoint position rotation
sheet” and on a “monthly tracker sheet,” both of which were quickly
discarded when done with.
The agency contests the ultimate finding of liability, arrived at
pursuant to the adverse inferences drawn by each AJ. Finally, it argues
that AJ-2’s award of compensatory damages is unsupported by the record,
and that the award of loss of future earnings was in error.
Complainant responds to the agency’s brief by noting that the agency’s
arguments have previously been made before both of the AJs, and were found
by each to be without merit. Complainant argues against the agency’s
argument regarding the proper result when ATSA standards are in conflict
with Rehabilitation Act requirements. She asserts that AJ-1 properly
defined complainant’s complaint to include the discriminatory work
assignments issue. Complainant also argues in support of the AJ’s rulings
regarding the existence of the logbook, and in support of the adverse
inferences drawn as a result of the finding that the logbook existed
and was destroyed, and as a result of the agency failing to provide the
Ordered copies of its records management and retention policies. Finally,
complainant contends that the remedies awarded by AJ-2 are supported by
the record, specifically, that the compensatory damages award and the
award of loss of future earnings were correctly determined.
ANALYSIS AND FINDINGS
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). An AJ’s conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ’s
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).
The decision in complainant’s favor
We first address the agency’s arguments that AJ-1’s rulings, which
resulted in a finding in favor of complainant, were in error.
Definition of the claim
The agency argues that AJ-1 improperly redefined complainant’s claim to
encompass the discriminatory work assignments issue and a hostile work
environment claim. We note that the agency twice argued this to AJ-1
and AJ-2, and its arguments were rejected. We find, yet again, the
agency’s argument in this regard to be without merit. A clear reading
of complainant’s complaint, combined with the EEO Counselor’s Report,
shows that the agency should have been on notice that an allegation of
discriminatory work assignments were part of her claim. As AJ-2 noted in
her decision, the agency self-servingly defined complainant’s complaint
as narrowly as possible.
We note that the EEO Investigator asked questions in many of the
affidavits taken from agency witnesses regarding complainant’s work
assignments. The record is not devoid of evidence on this claim.
The agency’s EEO Investigator neglected to gather the records which would
have documented complainant’s assignment history. That the agency now
regards this oversight as detrimental to its own interests is unfortunate,
as the problem was of its own making.
Adverse inferences drawn by AJ-1
The agency argues that AJ-1’s ruling that a logbook showing complainant’s
daily assignments even existed was contrary to the weight of the evidence.
We note, however, that AJ-1 made a finding regarding the existence of
the logbook after holding an in-person hearing, at which time he was
able to observe the witnesses’ testimony and make findings on their
relative credibility. Post-hearing factual findings are subject to a
substantial evidence standard. We find that the agency has not shown
that AJ-1’s finding regarding the existence of the logbook was so clearly
in opposition to the evidence before him that a reasonable person could
not have come to the same conclusion. An AJ’s findings on credibility
are also given great weight on review. Therefore, we decline to reverse
AJ-1 on this point.
AJ-1 drew an adverse inference from the agency’s refusal/inability
to produce the logbook which would have shown complainant’s daily
assignments, in comparison with those of the other screeners. The agency
claims that because it was not truly on notice that discriminatory work
assignments were part of complainant’s claim, and were not part of the
accepted claim, it should not be penalized for the destruction of those
records. We find it somewhat inexplicable that an agency would destroy
records of employee work assignments on a daily, or even monthly, basis,
given that the regulations found at 29 C.F.R. § 1614.105(a)(1) give a
complainant 45 days from the date of the discriminatory event to contact
an EEO Counselor. Even monthly destruction would not comport with the
agency responsibility to produce documents related to any complainant’s
claim, even one filed within 45 days and accepted a in manner which would
put the agency immediately on notice that those documents were required.
Although the agency argues here that because AJ-1 did not redefine the
claim until February 2006, it was not able to produce the relevant
records, we note that under the policies it asserts were in effect,
it would not have been able to produce the records at any time.
The Commission’s regulations afford broad authority for the conduct of
hearings by Administrative Judges. See 29 C.F.R. § 1614.109 et seq.;
Rountree v. Department of Treasury, EEOC Appeal No. 07A00015 (July
17, 2001). When a complainant or agency fails to comply with an AJ’s
order, an AJ may take action against the noncomplying party pursuant
to 29 C.F.R. § 1614.109(f)(3), up to and including issuing a decision
in favor of the opposing party. See 29 C.F.R. § 1614.109(f)(3)(iv).
Sanctions must be tailored in each case to appropriately address the
underlying conduct of the party being sanctioned. See Hale v. Department
of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). A sanction
may be used to deter the noncomplying party from similar conduct in
the future, as well as to equitably remedy the opposing party. Id.
We find that AJ-1’s issuance of a sanction in the form of an adverse
inference was not an abuse of discretion, and was narrowly tailored to
the agency’s action. We also find that this ruling serves to put the
agency on notice that similar conduct in the future will be unacceptable
with respect to other employees’ complaints.
AJ-1 also ruled that the agency failed to comply with his Order to produce
its records management and retention policies, and failed to show good
cause as to why it did not do so. We find that the adverse inference
drawn from the non-production of those records retention policies was
also within the AJ’s discretion. AJ-1, in response to the agency’s
assertion that the logbook records had been destroyed, gave the agency
an opportunity to establish that it had lawfully destroyed those records
in accordance with agency records retention policies. The agency did
not comply with AJ-1’s Order to produce those policies. Therefore, we
find it reasonable that AJ-1 drew an adverse inference that the records
retention policies would have reflected unfavorably on the agency.
ATSA applicability
The agency argues that the ATSA makes it impossible for complainant to
claim that the agency had to reasonably accommodate her restrictions,
thereby rendering her not a qualified individual with a disability.
We need not reach the agency’s arguments on the Rehabilitation Act and
the ATSA, as a finding for complainant on the basis of her disability
would add nothing further to the remedies awarded on the bases of sex
and age.
Finding should be reversed
Finally, the agency argues that the ultimate finding of liability and an
entry in favor of complainant is unwarranted by the record. It rests
this argument upon its contentions regarding the inappropriateness of
the adverse inferences drawn against it, which we have already addressed.
We find that the findings of AJ-1 and AJ-2 were supported by the record
and the adverse inferences drawn, and we decline to reverse the ruling
in favor of complainant.
Remedies awarded
As a remedy pursuant to the finding in favor of complainant, AJ-2 awarded
back pay, compensatory damages, and loss of future earnings, and ordered
the agency to post a notice at complainant’s former workplace.
Back pay
We note that the record shows that complainant had been appointed to a
temporary position for a term of five years, not to exceed December 8,
2007, as she started her employment with the agency on December 2, 2002.
In the absence of evidence that complainant would have been reappointed
to the position at the end of the five-year period, we find that back
pay should be cut off as of that date. We also note that the decision
of the MSPB awarding complainant disability annuity benefits will affect
the amount of back pay which will be awarded pursuant to this decision.
Loss of future earnings
An award for the loss of future earning capacity considers the effect
that complainant’s injury will have on her ability in the future to earn
a salary comparable with what she earned or would have earned before the
injury. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995); McKnight v. General Motors Corp., 973 F.2d 1366, 1370
(7th Cir. 1992); Williams v. Pharmacia Inc., 956 F. Supp. 1457, 1467
(N.D. Ind. 1996). An award of damages for lost earning capacity comports
with Title VII’s goal of providing make-whole relief to the victims of
discrimination. Williams, 956 F. Supp. at 1466 (citing Albemarle Paper
Co. v. Moody, 422 U.S. 405, 417-19 (1975)). The Commission previously has
awarded future pecuniary damages for the loss of future earning capacity.
See Brinkley v. United States Postal Service, EEOC Request No. 05980429
(August 12, 1999); Finlay v. United States Postal Service, EEOC Appeal
No. 01942985 (April 29, 1997). However, the Commission requires that
the impairment of earning capacity be shown with reasonable certainty or
reasonable probability, and there must be evidence which will permit the
fact finder to arrive at a pecuniary value for the loss. See Minardi
v. United States Postal Service, EEOC Appeal No. 01981955 (October 3,
2000). We find that the evidence presented in this case is adequate to
support an award for loss of future earnings. AJ-2 limited the award
to the date when complainant reached the retirement age of 62, which
would occur in October 2010. Complainant’s medical evidence supported
her contention that she would not be able to return to the workplace,
or to earn a salary comparable to that before her injuries.3
Compensatory damages
AJ-2 awarded complainant $45,000.00 in compensatory damages. We find
this amount to be supported by the record and evidence, and existing case
law. AJ-2 found that the discrimination reactivated complainant’s PTSD
symptoms, with complainant experiencing “anger, fear, depression, anxiety,
hopelessness, poor concentration, physiological reactivity, nightmares and
sleeplessness, and hives.” She found that while complainant previously
suffered from hives, the agency’s actions exacerbated the condition
and complainant needed to increase her medication dosages, in order
to try to hold the condition in check. Complainant had a permanent
lifting restriction of 10 pounds as a result of the discriminatory
work assignments. AJ-2 limited complainant’s award to $45,000.00 as a
result of complainant’s failure to testify to her emotional distress.
The evidence regarding her entitlement to compensatory damages was drawn
from the medical records in the Report of Investigation. We affirm
AJ-2’s award of compensatory damages. See McNeese-Ards v. Department of
Veterans Affairs, EEOC Appeal No. 0720090027 (April 15, 2010) (Commission
awarded $45,000.00 to complainant upon showing that she had experienced
depression, loss of sleep, severe emotional distress, and anxiety as
a result of the retaliatory conduct of the agency); Hem v. Department
of Agriculture, EEOC Appeal No. 0720060012 (March 10, 2008) (Commission
awarded $50,000.00 in non-pecuniary compensatory damages where complainant
established that he suffered emotional distress, depression, and anxiety
as a result of the agency’s discriminatory conduct); Bowden v. Department
of Veterans Affairs, EEOC Appeal No. 01A00360 (June 22, 2000) (Commission
awarded $45,000.00 in non-pecuniary, compensatory damages where the agency
subjected complainant to harassment which resulted in exacerbation of
depression, injury to professional standing, character, reputation, and
credit rating, humiliation, physical manifestations, loss of self-esteem,
and marital and family problems).
Attorney’s fees
We affirm AJ-2’s finding that complainant was not entitled to attorney’s
fees for the work of her previous attorney in the earlier stages of her
complaint processing. The record does not contain a verified statement
of work performed, the prevailing rate or the attorney’s hourly fee.
This determination, however has no impact on the award of attorney’s fees
that we make in connection with work performed during the processing of
this appeal.4
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the agency’s
rejection of AJ-2’s decision finding discrimination on the bases of sex,
age, and disability and REMAND for further processing in accordance with
our Order below.
ORDER
1) The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant since November 1, 2003,
pursuant to 29 C.F.R. §1614.501, no later than sixty (60) calendar days
after the date this decision becomes final. Complainant’s entitlement
to back pay shall terminate on December 8, 2007. The complainant shall
cooperate in the agency’s efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The 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 referenced in the statement entitled
“Implementation of the Commission’s Decision.”
2) The agency shall determine the appropriate amount of lost future
earnings, with interest, and other benefits due complainant from the
date of December 9, 2007 through the date of complainant’s intended
retirement, October 11, 2010, pursuant to 29 C.F.R. §1614.501, no later
than sixty (60) calendar days after the date this decision becomes final.
The complainant shall cooperate in the agency’s efforts to compute the
amount of lost future earnings and benefits due, and shall provide all
relevant information requested by the agency. If there is a dispute
regarding the exact amount of lost future earnings and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The 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 referenced in the statement entitled “Implementation of
the Commission’s Decision.”
3) The agency shall pay complainant $45,000.00 in non-pecuniary
compensatory damages.
4) The agency shall provide training to the involved management officials
regarding their responsibilities under EEO laws, with a special emphasis
on records retention, and on the Rehabilitation Act.
5) The agency shall consider taking appropriate disciplinary action
against the responsible management officials. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the Compliance Officer. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency’s employ, the agency shall
furnish documentation of their departure date(s).
6) The agency shall post a notice in accordance with the paragraph below.
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 Billings-Logan International
Airport 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 (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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
______5/27/10____________
Date
1 There was some dispute over whether complainant was still in her
probationary period at the time of the termination letter. The agency
reissued the termination notice on January 6, 2005.
2 Pursuant to a decision of the Merit Systems Protection Board (MSPB),
complainant was found to be entitled to Civil Service Retirement System
disability annuity benefits, retroactive to her last day of pay. Butler
v. Office of Personnel Management, MSPB Docket No. DE-831E-05-0191-I-1
(July 5, 2005).
3 We note that the decision of the MSPB on July 5, 2005, also supports
complainant’s contentions that she would not be able to return to any
position at the agency.
4 We note that attorney’s fees are not available for work done on claims
of age discrimination, and the amount of attorney’s fees awarded would
be limited to the extent that any work done exclusively in support of
complainant’s age claim could be separated from that in support of her
appeal as a whole.
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0720090010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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