COMMISSION HIGHLIGHTS

Digest of EEO Law, Volume XI, No. 4

I

FOUR $10,000 COMPENSATORY DAMAGES AWARDS WHERE DISCRIMINATION WAS BLATANT

Burrough, Grayson, Neeland, Sands v. Department of Defense (Defense Commissary Agency), EEOC Appeals Nos. 01955462, 01955351, 01955691, 01955520 (February 27, 1998).

Appellants, all African Americans, filed individual complaints when the agency changed the position title of three similarly situated white employees from cashier to clerk, but did not change the position title of the appellants. Appellants had more seniority. The change resulted in increased pay and promotional opportunities for the three white employees. An EEOC Administrative Judge's recommended findings of discrimination were adopted by the agency in individual final agency decisions (FADs). The FADs also included determinations on compensatory damages awards. Appellants appealed the remedies.

The Commission issued a joint decision addressing all four appeals. The Commission determined that three of the appellants were entitled to additional pecuniary damages for documented out-of-pocket expenses, including expenses incurred after the issuance of the agency's FADs. The Commission also found that each of the four appellants was entitled to an increase of $10,000 in nonpecuniary damages. The Commission explained that it reached this amount after considering not only the nature and severity of the emotional distress and related symptoms, but also the fact that the harm was caused by the agency's "blatant discrimination" in bypassing more senior African-American cashiers to promote whites. In addition, the Commission decided to make the amount the same for each because they were discriminated against based on the same issues, at about the same time, by the same agency officials. The Commission directed the agency to modify the appellants' remedies accordingly.

II

COUNSELOR'S CONDUCT WAS PER SE VIOLATION OF REPRISAL REGULATIONS

Pruette v. United States Postal Service, EEOC Appeal No. 01951567 (March 10, 1998).

Appellant filed an EEO complaint of sex discrimination and reprisal alleging that during the EEO counseling of a prior complaint, she was subjected to demeaning, insulting, and harassing statements by the EEO Counselor. The EEOC Administrative Judge (AJ) who conducted a hearing on the complaint recommended a finding of discrimination. The AJ found that at a counseling meeting in March 1992, the EEO Counselor attempted to intimidate appellant from further pursuit of her complaint, by warning her that she had no case and that to proceed would expose her and her family to public humiliation. The EEO Counselor also warned appellant that if there was even one more complaint against her (from coworkers), she would be immediately and severely disciplined. Finally, the EEO Counselor made a pejorative statement with sexual connotations about appellant's behavior. The AJ decided that because these actions occurred at a counseling meeting, where appellant was participating in the EEO process, they were direct evidence of reprisal. The AJ also found that the pejorative statement constituted direct evidence of sex discrimination. The agency did not adopt the AJ's findings in its FAD, and instead found no discrimination. Appellant appealed.

On appeal, the Commission agreed with the findings of the AJ and concluded that the Counselor's actions interfered with the EEO process. The counseling session was a per se violation of the Commission's regulations prohibiting restraint and interference in the EEO process, the Commission found. Given the crucial role of Counselors, stated the Commission, they must conduct themselves with the utmost objectivity and decorum. The Commission stated that it condemned the Counselor's actions, and found that the agency's EEO Director should have immediately looked into this Counselor's behavior as soon as appellant lodged her complaint. The agency was ordered to conduct training of all EEO Counselors in the division where the reprisal took place.

III

HOSTILE WORK ENVIRONMENT BASED ON RACE, NATIONAL ORIGIN, AND SEX

Cooper v. United States Postal Service, EEOC Appeal No. 01954737 (February 27, 1998).

Appellant filed an EEO complaint alleging race (Asian), national origin (Korean), and sex discrimination, and retaliation, in that her coworkers and her supervisor harassed her continuously. Appellant also alleged that management sanctioned the harassment by their inaction and by their statements to her when she reported the misconduct. An EEOC AJ conducted a hearing on her harassment complaint. Testimony from appellant and coworkers showed frequent race-based and national origin-based name-calling and an incident involving sex-based obscenities. A survey conducted by an outside investigator produced reports of numerous racial slurs, derogatory nicknames, and derogatory gender-related remarks made to or about appellant. In addition, appellant and two coworkers testified extensively to management actions criticizing appellant's work. There was also testimony that managers were present during certain specified incidents, and joked about them.

The AJ issued recommended findings of no discrimination, which were adopted by the agency. The AJ and agency reasoned that the conduct was not severe or pervasive enough to create an abusive working environment. On appeal, the Commission found the opposite. The Commission characterized many of the statements made to appellant as overtly racist or with "derogatory and patently offensive meanings related to appellant's national origin." The Commission also decided that the incidents were numerous, frequent, and continuing. Therefore, the Commission ruled that the record clearly established a discriminatory hostile environment based on race, national origin, and sex.

The Commission decided that the agency was repeatedly made aware of appellant's claims of harassment, but failed to take prompt and effective action. The agency did on occasion conduct talks on the matter, and once counseled a coworker who made a particularly egregious statement. However, observed the Commission, the remarks and nicknames apparently continued unabated. The Commission admonished the agency as it appeared that management allowed the harassment because of negative views that managers had about appellant's performance. The Commission stated that every employee is entitled to a harassment-free workplace, regardless of his or her popularity and level of performance. The agency was directed to restore any leave appellant took in direct response to or avoidance of the hostile environment. The Commission also ordered the agency to provide training for all personnel at the facility, and to determine whether disciplinary action against any of the individuals is appropriate.

IV

INADEQUATE CORRECTIVE ACTION MADE AGENCY LIABLE FOR SEXUAL HARASSMENT

Palmer v. Department of Justice, EEOC Appeal No. 01953022 (February 27, 1998).

Someone posted a number of cartoons on a Border Patrol station bulletin board which appellant believed were sexually suggestive and aimed at her. Someone also posted cartoons and graffiti in a "port-a-potty" at the border checkpoint used by appellant, a Border Patrol Agent. Appellant filed a complaint of sexual harassment in November 1992. In August 1992, when her name appeared next to one of the bulletin board cartoons, appellant had taken the cartoon to her first-level supervisor. In October 1992, appellant sent management a copy of a memorandum detailing incidents of cartoons at the checkpoint. She continued to report subsequent cartoons and graffiti. Management responded beginning with the August incident by notifying upper management, by talks to employees at muster gatherings, and by speaking with two employees about their possible involvement. Periodic surveillance of the checkpoint port-a-potty was increased, and graffiti that was found was immediately removed. A memo warning that sexual harassment would not be tolerated was issued to all employees at the station.

The agency in its FAD stated that it was understandable that the cartoons and graffiti would upset appellant, and made her work environment uncomfortable. The FAD concluded that management took appropriate remedial measures. The Commission on appeal agreed with the statement that the cartoons were upsetting, and rose to the level of a hostile work environment. The Commission disagreed with the agency's statement that it took prompt remedial action, and found instead that the agency's actions were inadequate. The Commission found that management both failed to understand, and to convey to employees, the serious nature of the harassment that was occurring. The Commission considered evidence such as the grumbling of both employees and supervisors when there were EEO inquiries, and the fact that management did not take any actions to prevent the appearance of offensive graffiti. Because the agency failed to take more aggressive actions, the Commission found the agency liable for the harassment that followed appellant's August 1992 report. In addition to individual relief directed for appellant, the agency was directed to conduct training for all employees in the sector addressing the agency's prohibitions against sexual harassment.

V

ATTORNEY'S FEES AT RTR STAGE

McKinney v. Department of the Army, EEOC Request No. 05970112 (February 27, 1998).

A new attorney began representing appellant while appellant's appeal was pending before the Commission. The appellate decision found that disability discrimination was operating in the nonselection at issue, but concluded that appellant would not have been placed in the position even absent the discrimination. The appellate decision provided for attorney's fees. The new attorney filed a request to reconsider, which was later denied. While the RTR was pending, the new attorney filed a petition for fees and costs with the agency. The agency issued a FAD rejecting the petition in its entirety. This appeal followed.

The Commission stated that to the extent appellant would be considered a "prevailing party," the designation would be based on the appellate decision. It could not be based on the RTR, as the RTR merely affirmed the appellate decision and rejected the appellant's argument that he was entitled to individual relief. Therefore, appellant was not a prevailing party as a result of any work performed by the new attorney. The Commission affirmed the agency's FAD rejecting the fees petition.