0720130004
01-29-2013
Judith E. Renner, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Judith E. Renner,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0720130004
Hearing No. 443-2006-00090X
Agency No. P-2005-0298
DECISION
Following its August 20, 2010, final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).1 On appeal, the Agency requests that the Commission affirm its rejection of the portion of the EEOC Administrative Judge's (AJ) decision which found discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and ordered relief. On September 24, 2010, Complainant filed a timely appeal from the portion of Agency's final order affirming the AJ's finding of no discrimination and ordering no relief.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Education Technician at the Agency's Federal Correctional Institution (FCI) in Oxford, Wisconsin.
Complainant filed an EEO complaint dated August 8, 2005. The AJ defined the issues as whether the Agency discriminated against Complainant based on reprisal for prior protected EEO activity under Title VII when:
1. on or about April 2005, her overall annual performance rating was reduced from "outstanding" to "exceeds";
2. she was augmented to custody posts more frequently than her co-workers;
3. she was required to submit a list of her upcoming medical appointments to management;
4. the Agency disregarded her psychologist's recommendation that she be allowed to work from 6 AM to 2:30 PM on her augmentation days; and
5. she was refused entrance to the institution prior to her start time.
Following an investigation by the Agency Complainant had a hearing before an EEOC AJ. The AJ found discrimination on issues 1 and 5, ordered equitable relief, damages, attorney fees and costs, and found no discrimination on the remaining issues. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved discrimination and related relief, and adopting his finding of no discrimination.
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, at � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
On issues 1 and 5, the AJ found that Complainant established a prima facie case of reprisal discrimination because she filed a prior EEO complaint alleging sex discrimination in December 2004, her first and second line supervisors (the rater and reviewer) were aware of the prior complaint, and the timing of the adverse actions in issues 1 and 5 was sufficiently close to the EEO activity to create an inference of discrimination and would likely dissuade a reasonable worker from making or supporting a charge of discrimination.2
The AJ found that the Agency gave legitimate, nondiscriminatory reasons for its actions in issues 1 and 5. Specifically, on issue 1 the Agency explained that the April 2005 overall appraisal rating which covered the period of April 1, 2004 to March 31, 2005, was justified because Complainant's ratings had been inflated.3 We note that the rating official also explained that for the above appraisal Complainant was on borderline between an overall rating of exceed and outstanding, and what tipped her to exceed was that she had performed additional duties in the prior year. On issue 5 the Agency explained that Complainant was denied admittance to the facility at 6 AM because her start time on the two days in question in November and December 2005 was 8 AM, and it was Agency policy that no one was allowed to enter before her start time. Complainant's usual start time was 6 AM, but on augmentation days it was 8 AM.
The AJ found that the Agency's explanations for its actions in issues 1 and 5 were pretext to mask reprisal discrimination. The AJ found that Complainant's 2004 and 2005 annual appraisals both had ratings of outstanding and exceeds on three job elements each (a total of six job elements), but the earlier overall annual performance appraisal rating was outstanding. We add that Complainant also received an overall rating of outstanding for her 2002 and 2003 appraisals. Hearing transcript (HT at 54, 55). All these appraisals had the same rating and reviewing officials. The AJ found that the Agency admitted Complainant's performance did not decline, and her second line supervisor admitted her prior appraisal rating of outstanding was deserved. The AJ found that the Agency's explanation that the rating was lowered because the first line supervisor inflated his ratings was not credible. The AJ reasoned that the responsible management officials sought advice from Human Resources on what overall rating to give Complainant, and did not do this for other employees, singling her out. Human Resources advised that the ratings were inflated. In response to the Agency's argument that the first and second level supervisors lowered the overall annual appraisal ratings of two other employees from outstanding to exceed from 2004 to 2005, the AJ found this was of no particular matter.
The AJ found that the Agency's explanation that it did not allow Complainant entry into the facility prior to her start time because it was Agency policy not to do so was pretext because it allowed others to do so. The AJ cited Complainant's testimony of another employee being allowed admittance prior to his start time. H.T. at 98-99, 248. This was corroborated by the testimony of Complainant's first line supervisor. H.T. at 387.
On appeal, the Agency argues that the two retaliation findings do not amount to adverse actions as a matter of law. We disagree. See Johnson v. Department of the Navy, EEOC Appeal No. 01983555 (July 9, 1995) (receiving a rating of exceeds fully successful rather than outstanding states a claim of discrimination). Also, Complainant testified that she could have received a monetary or time off award if she got an outstanding rating. H.T. at 57, 58. Discriminatory denial of an award, which is compensation, states a claim. On reprisal claims, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. We find that the actions in issues 1 and 5 meet this standard.
On appeal, the Agency disagrees with the AJ's characterization of the evidence regarding issues 1 and 5, and argues that the record shows there was no discrimination. It argues, for example, that it did not single out Complainant when management sought the advice of Human Resources on the appropriate overall rating for Complainant. It cited management's fear that Complainant would file an EEO complaint if she did not receive an overall rating of outstanding, and argued that since management believed she warranted an overall exceed rating, it ran things by Human Resources for assurance this was correct. The Agency also argues that the AJ inexplicably and impermissibly discounted crucial comparator evidence showing that the overall ratings of two other employees who were rated by the first and second line supervisors also decreased from outstanding to exceed from 2004 5o 2005.
In his decision the AJ suggested he was troubled by Complainant's first and second line supervisors discussing Complainant's EEO complaint and potential to file another one while completing her performance appraisal, and questioned why other appraisals were not run by Human Resources to see if they were inflated. While we agree with the Agency that the evidence on the comparative employees is probative, its value is diminished because the two comparative employees received ratings, respectively, of exceed in three of five job elements, and four of five job elements. The record shows that with these ratings there was no discretion but to rate the comparative employees overall as exceed, while there was discretion on what overall rating to give Complainant because her job element ratings were evenly divided between exceed and outstanding.
On issue 5, in its final order the Agency found there is no evidence that the comparative employee who was permitted entrance into the facility at 6 AM had a start time of 8 AM on the day in question. Based on the testimony of Complainant and the first level supervisor, there is substantial evidence to support the AJ's finding on the start time.
While the Agency makes strong arguments, we find that the AJ's findings of discrimination on issues 1 and 5 are supported by substantial evidence.
In March 2005, the FCI in Oxford, Wisconsin established augmentation procedures whereby non-custody staff temporarily covered vacant correctional posts at the facility. The AJ found that the record did not show a significant difference between the time Complainant and her co-workers were assigned augmentation duties, and hence found no discrimination on issue 2. On issue 3 the AJ found that the record showed Complainant was asked to submit a list of her upcoming appointments to management because she kept requesting schedule changes [on her augmentation days]. The AJ found that the Agency asked for the list to assist with scheduling, not to retaliate. On issue 4 the AJ found that the Agency initially denied Complainant's requests to leave work early at 2:30 PM on her augmentation days because she did not explain the real reason she needed to leave early, not reprisal.4
In her appeal brief Complainant disputes the AJ's characterization of the evidence on issues 2, 3 and 4.5 We find that the AJ's findings on these issues are supported by substantial evidence.
As relief, the AJ ordered the Agency to change the overall rating in Complainant's performance appraisal which covered the period of April 1, 2004 to March 31, 2005 to outstanding, and to conduct her future annual performance appraisals on the same terms and conditions as it conducts them for her co-workers. The AJ ordered the Agency to provide Complainant any benefit she would have received had she been rated outstanding in the above appraisal. The AJ awarded Complainant attorney fees of $27,032, $600 for expert witness fees, and $1,204.17 in travel costs.
Based on Complainant's testimony that she suffered from migraine headaches, stomach illness, anxiety, depression and interruptions of her sleep patterns and received professional treatment for some of her ailments as a result of the Agency's actions, and that the Agency was only liable for damages arising from its unlawful conduct, the AJ awarded Complainant $10,000 in non-pecuniary compensatory damages.
On appeal, the Agency generally argues that because there was no discrimination, Complainant is not entitled to any of the relief ordered by the AJ.
Like she argued in her post-hearing brief to the AJ, Complaint argues on appeal that she should be restored leave she took as a result of the Agency's discrimination. The AJ did not award this remedy. In her affidavit, Complainant contended that she was forced to use leave because the Agency did not honor her health care provider's recommendations on her schedule. The AJ's decision not to award Complainant restoration of leave is supported by substantial evidence. Complainant has not shown she took leave as a result of being discriminated against in connection with issues 1 and 5.
On appeal, the parties do not contest the AJ's calculation of attorney fees, expert witness fees, and costs. Accordingly, the AJ's finding on these matters is affirmed.
Complainant argues on appeal that she is entitled to more than $10,000 in damages. She argues that her testimony indicated she that the entire course of the Agency's conduct made her physically sick and emotionally distraught, and refers to testimony that she dreaded coming to work and was constantly on edge which impacted her family relationships.
Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) Non-pecuniary losses are losses that are not subject to precise quantification including emotional pain and injury to character, professional standing, and reputation. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination. An award of compensatory damages for such losses should reflect the nature and severity of the harm and the duration or expected duration of the harm. Id.
A review of the record shows Complainant claimed she suffered injuries for conduct which was found to be discriminatory, as well as conduct where discrimination was not found. The AJ suggested this in explaining his damages award.
A proper award of nonpecuniary compensatory damages should consistent with the amount awarded in similar cases. See Ward-Jenkins v. Department of Interior, EEOC Appeal No. 01961483 (March 4, 1999). We find that the AJ's award of $10,000 in non-pecuniary compensatory damages was sufficient to compensate Complainant for her emotional harm. See Taber v. United States Postal Service, EEOC Appeal No. 0120083624 (May 3, 2012) (complainant, who was discriminated against when he was passed over for a temporary higher level detail but not when he was denied overtime was awarded $10,000 in non-pecuniary damages where she suffered depression and anxiety which manifested as sleeplessness, stress, marital strain, humiliation, emotional distress, loss of self-esteem, and excessive fatigue).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order and AFFIRM the AJ's decision, albeit with the addition of some additional equitable relief, ordered below.
ORDER
The Agency is ordered to take the following remedial actions:
1. Change Complainant's overall rating to "Outstanding" for the Employee Performance Appraisal covering the period of April 1, 2004 to March 31, 2005;
2. Provide Complainant any benefits she would have received had she received a rating of Outstanding on the above appraisal in April 2005. If the benefit would have been a monetary award, pay Complainant the award with interest, retroactive to when she would have received the award;
3. Pay Complainant $10,000 in non-pecuniary damages;
4. Issue a check to Complainant's attorney paid to the order of Complainant and her attorney for $27,032 in attorney fees, $600 for expert witness fees, and $1,204.17 in travel costs (total $28,836.17);
5. If they are still employed by the Agency's Federal Bureau of Prisons, provide training to the people identified as Complainant's first and second line supervisors above (as of the time of the hearing, they were no longer located at the FCI in Oxford, Wisconsin) on how to identify and prevent reprisal discrimination based on EEO activity; and
6. If they are still employed by the Agency's Federal Bureau of Prisons, consider disciplining those responsible for the discrimination on issues 1 and 5.
The Agency shall provide the relief ordered in items 1 through 4 above within 60 calendar days after this decision becomes final, and complete items 5 and 6 above within 150 calendar days after this decision becomes final.
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, which must be copied to Complainant, shall include supporting documentation that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Federal Correctional Institution (FCI) in Oxford, Wisconsin 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 (H0610)6
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 (M0610)
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), at 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
January 29, 2013
__________________
Date
1 On September 29, 2009, the AJ mailed a copy of his decision finding discrimination, and awarding damages and other equitable relief, along with the hearing transcripts to the parties. In the decision, the AJ directed Complainant's attorney to submit a fee petition for attorney fees and costs, and wrote he would make a decision thereon thereafter. On October 23, 2009, the Agency's Complaint Adjudication Office (CAO) wrote a letter to the AJ, which it copied to Complainant, representing that in a telephone conversation with CAO the AJ indicated his decision was not full and complete until the matter of attorney fees and costs was decided. In the above letter the CAO wrote that it understood that the time limit for the Agency to make a final order was not triggered until the AJ issued an order on attorney fees and costs. The record does not show that anyone replied to the above letter. The AJ made his decision on attorney fees and costs on July 9, 2010.
2 We add that Complainant contacted an EEO counselor regarding the instant complaint in June 2005, that the counselor interviewed Complainant's first and second line supervisors about the complaint, respectively, in June 2005 and July 2005, and the two incidents in issue 5 occurred in November and December 2005.
3 The first line supervisor explained that his performance log ratings, upon which the appraisal is based, had become more liberal over the years. Report of Investigation, at 90.
4 When Complainant gave the real reason, her request was granted.
5 The Agency argues that because Complainant filed her appeal on September 24, 2010, her brief which was filed on October 25, 2010, was filed beyond the 30 day time limit, and is untimely. 29 C.F.R. � 1614.403(d). We note that the 30th day, October 24, 2010, fell on a Sunday. Accordingly, the appeal brief was timely filed on October 25, 2010. 29 C.F.R. � 1614.604(d).
6 This applies to fees and costs incurred after Complainant's attorney submitted her fee petition to the AJ.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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