John G. Apodaca v. Department of Veterans Affairs
01990542
05-24-02
John G. Apodaca,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01990542
Agency No. 96-0768
Hearing No. 320-96-8354X
DECISION
INTRODUCTION
John G. Apodaca (hereinafter referred to as complainant) filed a timely
appeal from the October 7, 1998, final decision of the Department of
Veterans Affairs (hereinafter referred to as the agency) concerning a
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.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The appeal is timely filed (see 29 C.F.R. § 1614.402(a)) and is accepted
in accordance with 29 C.F.R. § 1614.405.
ISSUE PRESENTED
The issue presented in this appeal is whether complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the bases of disability (stress), sex, religion,<1> and reprisal
(Title VII) when (a) he received a special performance appraisal in July
1994; and (b) when he was admonished, reassigned, and allegedly harassed
in August 1995.
BACKGROUND
Complainant contacted an EEO counselor on August 25, 1995, and filed his
formal complaint on December 4, 1995. The complainant claimed that he
was discriminated against based on disability (stress), sex, religion,
and reprisal (Title VII) when (1) he received a unfavorable special
performance appraisal in July 1994, and (2) he was admonished, reassigned,
and allegedly harassed in August 1995. Following an investigation,
he requested a hearing before an EEOC Administrative Judge (AJ).
The AJ conducted a hearing and issued his decision on June 22, 1998,
finding discrimination based on disability and reprisal with regard to
claim 1 and no discrimination on all other bases and issues. In its
final agency decision (FAD), the agency accepted the AJ’s finding of
discrimination based on reprisal with regard to claim 1 and found no
discrimination as to all other claims. Complainant filed the instant
appeal, without substantive comment.
At the time of the events herein, complainant was a supervisor in
Acquisition and Material Management Service (AMMS), Ft. Lyon, Colorado,
Medical Center. In late 1992, a new Chief, AMMS (S1), was appointed,
who made several changes. First, he selected an employee (E1) under
complainant’s supervision as his deputy, bypassing complainant.<2>
Also, S1 removed many of the supervisory duties from the supervisors
and reassigned them to E1. Complainant cited these and other events<3>
as background to the issues in his complaint, contending that a “witch
hunt was being conducted” against him by S1 and E1 and that he was being
“harassed,” when, e.g., S1 criticized his decisions, his failure to
timely process purchase orders, and his mistake in routing an invoice
to the wrong office. (Complaint, p. 3).
July 1994 Special Performance Appraisal
With regard to (a), because the agency’s final decision found reprisal
discrimination, we briefly state the facts for purposes of review of
the remedy. On about July 11, 1994, complainant received a special
performance appraisal for the three-month period from April 1 to July
7, 1994, accompanied by a memorandum denying his within-grade increase
(WGI) due on August 21, 1994.<4> The appraisal found his performance
“unacceptable” and stated that his level of performance for four of five
elements was less than fully successful. In particular, S1 criticized
complainant’s failure to meet the timeliness and accuracy requirements of
his performance standards. The record shows that complainant was absent
61.5% of the rating period and that he was absent for most of July and
August, returning to a regular work schedule in early September 1994.
He received his WGI on November 23, 1994.
August 1995 Admonishment and Reassignment
In early 1995, complainant was assigned to the Engineering Service
as its principal contractor under the supervision of the Chief of the
Engineering Service (S2). Sometime prior to August 1995, complainant
awarded two contracts that were found to violate the Anti-Deficiency
Act, which prohibits agencies from issuing contracts exceeding the
amount of funds available. See 31 USC § 1341. The agency issued
complainant an admonishment dated August 25, 1995, and he was reassigned
to AMMS effective August 28, 1995.<5> In addition, complainant was
given a performance appraisal for the six-month period from April 1 to
September 11, 1995, rating him “unacceptable,” in that, his performance
for the critical element of Contract Administration was less than
fully successful. His contracting authority and other duties were
temporarily removed, and he was placed on a Performance Improvement Plan
(PIP) for 60 days under the supervision of S1.
August 1995 Harassment
Complainant stated that on August 14, 1995, he was interrupted during a
meeting to take a telephone call informing him that he had violated the
Anti-Deficiency Act. We note, in addition, that there are references
in the record to complainant’s feelings of harassment in early 1993
upon S1’s selection of E1, S1’s reorganization, and some of the events
described, above. In addition, complainant testified that S1 and E1
harassed him and were on a “witch hunt,” went through his desk and files,
and questioned his subordinates and co-workers. (Hearing Transcript
4/15/98 (HT1) 39). In addition, in his investigative deposition (ID),
complainant stated that he was “being ignored or shoved into a corner,”
believed people were talking about him, and referred to S1’s criticisms
(ID 9-10); that he and E1 did not speak to each other (ID 11); that he
was blamed for E1’s errors (ID 12); that S1 encouraged him to apply for
a position in Albuquerque (ID 16); and that S1 was “after me” (ID 17).
Complainant also asserted that S1 was hostile towards him after he was
named as a witness in the EEO matters of two agency employees.
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).
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).
For purposes of this analysis, we will assume without finding that
complainant is an individual with a disability, and even assuming
that complainant established a prima facie case on disability, sex,
religion, and reprisal, applying the McDonnell Douglas analysis, we
find that complainant did not demonstrate that the agency’s reasons
for its actions were based on prohibited considerations of disability,
sex or religion.<6> As to the August 1995 events, the AJ found that
the agency articulated legitimate, nondiscriminatory reasons for its
actions in response to which complainant did not demonstrate pretext.
Our review of the record supports this conclusion.
Claim of Harassment
Complainant also claimed that he was subjected to harassment. The
harassment of an employee based on his/her race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently
patterned or pervasive. McKinney v. Dole, 765 F.2d 1129, 1138-1139
(D.C. Cir. 1985). To prevail on a harassment claim, a complainant must
show that s/he was subjected to harassment because of discriminatory
factors, i.e., sex, religion, reprisal, or disability. In assessing
allegations of harassment, the Commission examines factors such as the
frequency of the alleged discriminatory conduct, its severity, whether
it is physically threatening or humiliating, and if it unreasonably
interferes with an employee’s work performance. Harris v. Forklift
Systems, Inc., 510 U.S 17 (1993). Usually, unless the conduct is severe,
a single incident or group of isolated incidents will not be regarded as
discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). See Bloomer v. Department of Transportation,
EEOC Petition No. 03980137 (October 8, 1999).
To support his claim of harassment, complainant generally described
actions by S1 and E1, and, specifically, he referred to an event in
August 1995 when he was interrupted during a meeting. We find that
complainant’s claims do not describe illegal harassment but instead are
legitimate criticisms of complainant’s work product within the agency’s
legitimate business operations. After a thorough review of the record,
we find that the agency did not discriminate against complainant with
regard to the 1995 events.
Remedy
In relief, the AJ awarded complainant compensatory damages, in
that, complainant had “some emotional distress and harm,” that his
“assertions of proximate cause…are uncontroverted in the record,”
and that he is entitled to recover provable pecuniary and non-pecuniary
compensatory damages. (Decision 32-33). The AJ held that while the
agency was not liable for complainant’s preexisting condition, it was
responsible for the exacerbation thereof, and found that “a reasonable
amount to compensate complainant for the harm suffered is $15,000.”
(Decision 35). In addition, the AJ directed the agency to refrain from
further discriminatory or retaliatory actions; that it pay reasonable
attorney’s fees; that it take action to eliminate the effects of the
July 1994 appraisal; and that it post a nondiscrimination notice.
In its decision, the agency ordered that its files be purged of any
reference to the July 1994 appraisal; to make complainant whole for
the denial of his WGI in 1994; to restore sick and annual leave taken
as a result of the 1994 appraisal; to commit to complainant that it
will cease any reprisal activity; to pay reasonable attorney’s fees; to
consider disciplinary action against S1 and consider giving him training;
and to post a notice of nondiscrimination. With regard to compensatory
damages, the agency found that the record lacked evidence to support an
award of pecuniary or non-pecuniary damages, and it directed complainant
to submit a claim within 60 days.
As set out in more detail below, we find that complainant is entitled to
back pay for the denial of his within grade increase in July 1994, removal
from agency files of all documents with reference to the July 1994 Special
Performance Appraisal, restoration of sick and annual leave from April
through September 1994, and attorney’s fees. In addition, the agency
is directed to post a non-discrimination notice. Although complainant
sought, inter alia, pecuniary and nonpecuniary compensatory damages, and
the AJ awarded him both pecuniary and nonpecuniary compensatory damages,
we find that the record does not support the amount of compensatory
damages granted by the AJ.
Compensatory Damages
Section 102(a) of the Civil Rights Act of 1991 (CRA) authorized awards
of compensatory damages as relief for intentional discrimination in
violation of Title VII and the Rehabilitation Act. 42 U.S.C. §1981a.
See generally Enforcement Guidance: Compensatory and Punitive Damages
Available under § 102 of the Civil Rights Act of 1991, No. N 915-002
(July 14, 1992) (Guidance). Compensatory damages are recoverable
in the administrative process, including resolutions by settlement.
West v. Gibson, 527 U.S. 212 (1999). Compensatory damages are awarded
for losses and suffering due to the discriminatory acts or conduct of
the agency and include past pecuniary losses, future pecuniary losses,
and nonpecuniary losses that are directly or proximately caused by the
agency’s conduct.<7> Guidance at 8.
It is a complainant’s burden to demonstrate, through appropriate evidence
and documentation, the harm suffered as a result of the agency’s actions;
the extent, nature, and severity of the harm suffered; and the duration
or expected duration of the harm. Rivera v. Department of the Navy,
EEOC Appeal No. 01934156 (July 22, 1994), req. to recon. den., EEOC
Request No. 05940927 (December 11, 1995); Guidance at 11-12, 14; see
also, Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). The agency is only responsible for those damages that
are shown to be caused by the agency’s conduct. Carle v. Department of
the Navy, EEOC Appeal No. 01922369 (January 5, 1993); Fazekas v. USPS,
EEOC Appeal No. 01954627 (April 7, 1997); see also Johnson v. Department
of Interior, EEOC Appeal No. 01961812 (June 18, 1998). To recover
damages, the complainant must prove that the agency’s actions were the
cause of the loss. Guidance at 8. Objective evidence in support of a
claim for pecuniary damages includes documentation showing all actual,
out-of-pocket expenses with an explanation of the expenditure and,
for nonpecuniary claims, statements from the complainant and others,
including family members, co-workers, and medical professionals.
Guidance at 9; Carle v. Department of the Navy, supra.
In the matter before us, the AJ found that complainant established
harm and causation and awarded him $15,000 in nonpecuniary damages.
The AJ’s finding, however, was based solely on complainant’s testimony,
there being no documentation in the file addressing entitlement
to compensatory damages. In our review of the record, there is no
showing of any past pecuniary losses, and complainant cannot recover
such damages. With regard to the AJ’s justification for an award of
nonpecuniary damages, we find that complainant’s testimony was very
general and contained little specification as to the harm caused by or
exacerbated by the July 1994 performance appraisal.<8> Here, because
we find that complainant’s testimony regarding his mental and emotional
state in relation to the July 1994 appraisal was limited, we find that
a reduction in the amount awarded by the AJ is necessary. For these
reasons, we award complainant $5,000 in nonpecuniary compensatory damages.
CONCLUSION
Accordingly, the agency’s decision is AFFIRMED, as modified. The agency
is directed to comply with the Order, below.
ORDER
To the extent it has not already done so, the agency is ordered to take
the following remedial actions:
(A) With regard to the denial of complainant’s within grade increase
in July 1994, the agency shall determine the appropriate amount of back
pay, with interest, and other benefits due complainant, 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 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.”
(B) Within 60 days of the date this decision becomes final, the agency
shall remove from complainant’s official personnel file the July 1994
Special Performance Appraisal and all documents that reference it.
(C) Within 60 days of the date this decision becomes final, the agency
shall restore to complainant sick and annual leave from April through
September 1994 taken as a result of the July 1994 Special Appraisal.
(D) Within 60 days of the date this decision becomes final, the agency
shall pay complainant $5,000 in nonpecuniary compensatory damages.
(E) The agency shall consider taking disciplinary action against S1 with
regard to his discriminatory action of the July 1994 Special Performance
Appraisal. The agency shall report its decision. 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. The agency
shall also give S1 a minimum of 12 hours of EEO training, with special
emphasis on the duty not to retaliate against individuals who engage in
EEO activity.
(F) The agency is further directed to submit a report of compliance, as
provided in the statement entitled “Implementation of the Commission’s
Decision.” The report shall include supporting documentation of the
agency’s calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
The agency shall provide a copy of this report, along with supporting
documentation, to complainant.
POSTING ORDER (G0900)<9>
The agency is ordered to post at the Ft. Lyon, Colorado, Medical Center
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 (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 (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 Hadden, Director
Office of Federal Operations
_05-24-02_________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
___________
Date
______________________
Equal Opportunity Assistant
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 with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privilege of
employment.
The Department of Veterans Affairs, Ft. Lyon Medical Center, supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under the law.
It has remedied the employee affected by the Commission’s finding of
reprisal discrimination by ordering the agency to purge its files of
offending documents, to provide back pay, to restore sick and annual
leave, to pay nonpecuniary compensatory damages, and to pay reasonable
attorney’s fees. The Department of Veterans Affairs, Ft. Lyon Medical
Center, will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all federal equal employment laws and will not subject employees to
reprisal discrimination.
The Department of Veterans Affairs, Ft. Lyon Medical Center, 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 participated in proceedings pursuant to, Federal
equal employment opportunity law.
Date Posted:
Posting Expires:
1This basis was added at the hearing.
2At the time, complainant contacted an EEO counselor regarding the
selection, but he did not proceed with a formal complaint. S1 was
notified of the EEO contact.
3Complainant also described events in early 1992 when AMMS staff employees
contacted an EEO counselor and filed an EEO complaint against him.
In response to the complaint, the Medical Center Director required
that all staff meet to address issues raised by the EEO complaint.
These meetings went on for approximately six months, at which staff
aired their ongoing complaints against complainant. Complainant also
stated that in March 1993, he was blamed for not incorporating some
required changes into a construction contract, and S1 removed some of
his supervisory duties, citing poor staff supervision and communication.
4The AJ stated that complainant received the special performance appraisal
on May 11, 1994. This was in error; the document received on May 11
was his annual performance plan.
5The record indicates that disciplinary action was taken against S2,
as well.
6Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d,
545 F.2d 222 (1st Cir. 1976). For complainant to prevail, s/he must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Once complainant has
established a prima facie case, the burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful, the burden reverts back to the
complainant to demonstrate by a preponderance of the evidence that the
agency’s reason(s) for its action was a pretext for discrimination.
At all times, complainant retains the burden of persuasion, and it is
his/her obligation to show by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
7Punitive damages are not available from a federal employer.
8In general, a discriminating employer is liable for the exacerbation
of a complainant’s pre-existing conditions that are causally related to
the discriminatory act. See Guidance at 11.
9This order only applies if the agency has not already posted a
nondiscrimination notice with regard to this case.
See also: Quality step increase
