EEOC Appeal No. 0720150010
09-02-2016
Mindy O. v. Dep't of Homeland Sec.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mindy O.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0720150010
Hearing No. 551-2010-00127X
Agency No. HS-09-TSA-007272
DECISION
Following its November 6, 2014, 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 Equal Employment Opportunity Commission Administrative Judge's (AJ's) 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. Alternatively, the Agency requests that the Commission reduce the attorney's fee award ordered by the AJ. On December 3, 2014, Complainant filed a cross appeal. For the following reasons, the Commission MODIFIES the Agency's final order.2
ISSUES PRESENTED
The issues presented are (1) whether Complainant filed her appeal in a timely manner, (2) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly disapproved some of Complainant's proposed witnesses; (3) whether substantial evidence of record supports the AJ's decision that Complainant did not establish that the Agency subjected her to a hostile work environment on the basis of sex and in reprisal for prior protected EEO activity, (4) whether substantial evidence of record supports the AJ's decision that the Agency subjected Complainant to per se reprisal, and (5) whether the AJ erred in determining the amount of attorney's fees awarded to Complainant.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer (STSO) at the Pullman-Moscow Regional Airport (PUW) in Pullman, Washington. In an EEO complaint filed on September 30, 2009, and subsequently amended, Complainant alleged that the Agency discriminated against her on the basis of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 with respect to the following matters:3
1. On April 10, 2009, when Complainant reported the threatening behavior of her subordinate, her subordinate became angry and stated, "You and I are done." Complainant later learned that her subordinate blamed her when her manager took disciplinary action against the subordinate.
2. In May 2009, Complainant's supervisor, the Transportation Security Manager (TSM) told one of her co-workers not to ask Complainant for advice because she "doesn't know anything."
3. In May or June 2009, TSM told other supervisors to stare at her, to invade her personal space, and to make it obvious they were watching her.
4. On June 20, 2009, TSM called her "a failure and a disgrace" and forced her to sign a document which removed her from her supervisory duties.
5. On August 9, 2009, TSM interrogated and berated her for more than three hours.
6. On or around August 9, 2009, Complainant was placed on leave restriction.
7. In August 2009, TSM instructed visiting Supervisory Transportation Security Officers (STSOs) to hide the sign-in book so Complainant would not be able to sign in.
8. On August 15, 2009, Complainant received a Notice of Proposed Removal.
9. In September 2009, Complainant was not allowed to attend the fall session of the National Advisory Council (NAC), of which she was a member.
10. In November 2009, Complainant learned that she would not be allowed to attend the winter session of the NAC.
11. In November 2009, Complainant was informed that the procedure for her return to duty would be handled differently from the past and she was not allowed to review all of the documentation her supervisor was providing to management regarding her training.
12. In November 2009, Complainant learned that she was rated unfairly on her fiscal year 2009 performance evaluation.
13. In October or November 2009, the Federal Security Director (FSD) asked Complainant to transfer to another airport and warned her that, if she stayed at Pullman-Moscow Regional Airport, she would be "under a microscope."
14. On November 23, 2009, Complainant received a Notice of Proposed Removal.
15. On December 11, 2009, Complainant was terminated from her position at TSA.
16. On or about February 22, 2010, the December 11, 2009, termination was rescinded and Complainant was issued a new termination letter.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before a Commission AJ. Complainant timely requested a hearing. In a May 3, 2012, Pre-Hearing Order, the AJ approved Complainant and thirteen other individuals as witnesses. She disapproved six of Complainant's proposed 18 witnesses on the basis of relevance, and she directed the parties to develop a stipulation regarding the testimony of another proposed witness. In addition, the AJ stated that two other proposed witnesses, including the former PUW Airport Manager, could testify if time allowed and that another proposed witness could testify as a rebuttal witness if warranted by the cases-in-chief.
The AJ held a hearing on July 30 - August 1, 2012. Complainant and seven witnesses testified on Complainant's behalf; six witnesses testified for the Agency. Subsequently, on June 17, 2014, the AJ held a damages hearing via teleconference. Complainant and two other witnesses testified at the damages hearing.
In a decision dated September 26, 2014, the AJ found the following facts. Complainant began working at PUW in January 2005 and was promoted to the STSO position in August 2006. She and another female STSO (STSO-1) supervised the Transportation Security Officers (TSOs) at PUW. A reorganization placed PUW under the authority of the Pasco, Washington, airport, and TSM, who worked in Pasco, was then placed in charge of PUW and other airports under Pasco's authority. TSM testified that he observed operational and administrative deficiencies at all of the airports.
On April 19, 2009, Complainant, who was member of the Agency's National Advisory Council (NAC), was at PUW for a flight to Washington, D.C., via Seattle. A Lead Transportation Security Officer (LTSO-1) who was acting as an STSO and a TSO (TSO-1) told Complainant that they thought that another TSO (TSO-2) had alcohol on his breath. Complainant testified that she believed that LTSO-1 had the situation under control and would notify managers, and TSO-1 testified that Complainant told LTSO-1 "to call somebody to do something about this." LTSO-1 testified that he reported the matter to Complainant "[a]s a first step" and that he called TSM later in the day. Complainant called STSO-1 from Seattle. STSO-1, who was not working that day, called LTSO-1 later in the afternoon. After learning that LTSO-1 had not yet reported the matter to TSM, STSO-1 called TSM.
Because of this incident and visiting supervisors' reports that PUW was not complying with Agency procedures, the Federal Security Director requested an administrative inquiry into the problems at PUW. The Spokane International Airport (GEG) Administrative Officer and Inquiry Officer (AO) issued a June 4, 2009, report finding, inter alia, that PUW personnel were not performing unpredictable screenings, were not using a formal rotation schedule, waited 13 months to create and use attendance binders that TSM requested in April 2008, tolerated tardiness, and violated the Agency's uniform policies. He also found that Complainant and STSO-1 did not always respond to management requests in a timely manner and that LTSO-1 should have reported the TSO-2 suspected-alcohol incident to TSM immediately. In addition, AO found that TSM had not spent sufficient time with PUW employees and recommended that TSM spend at least one day per week at PUW.
By memorandum dated June 14, 2009, TSM notified employees that, effective immediately, all PUW supervisory functions would be performed by three visiting supervisors: an STSO from Yakima (STSO-2), an STSO from Pasco (STSO-3), and a recently promoted STSO who had been a TSO in Seattle (STSO-4). In another June 14 memorandum, which Complainant received on June 20, 2009, TSM temporarily removed Complainant from her STSO duties. He issued a similar memorandum to STSO-1. Complainant has alleged that, when TSM gave her the memorandum on June 20, 2009, he called her "a failure and a disgrace."
FSD testified that TSM recommended that he permanently demote Complainant and STSO-1 to TSO positions. He demoted STSO-1 to an LTSO position because she accepted responsibility for the conduct that had occurred at PUW and wanted to be a part of the solution rather than the problem.
On August 9, 2009, before FSD had decided on the discipline for Complainant, Complainant was involved in an "improper screening" incident. According to STSO-3, she saw Complainant running the X-ray equipment even though Complainant was not certified to do so. STSO-3 stopped the screening procedures, put STSO-4 on the X-ray equipment in place of Complainant, and had the passengers go through the equipment again. Complainant testified that she thought that STSO-4 was "shadowing" her and that she therefore could run the X-ray equipment. STSO-4, however, testified that he was not shadowing Complainant and that he had told her that she would not be screening the flight because TSM wanted to meet with her.
TSM and STSO-3 subsequently met with Complainant. According to STSO-3's notes, the meeting lasted approximately three hours. TSM and Complainant discussed several matters, including the X-ray incident, Complainant's Performance Accountability and Standards System (PASS) evaluation, and TSM's issuance of an August 9, 2009, leave-restriction memorandum.
On August 10, 2009, TSM met with the PUW staff. TSM testified that the meeting was to "raise the awareness of the expectations of the Agency as far as TSA employees' responsibilities and conduct and what options were available to leadership to address performance and conduct deficiencies." He also testified that his attempt at relationship-building had failed, that he wanted employees to understand the options for achieving compliance with Agency policy, and that he "wanted them to understand how it works, the inner workings of the policies, the expectations, and raise their awareness." According to TSM, he reviewed the Employee Responsibilities and Conduct Handbook with the employees and read some sections verbatim. With respect to Section M, Eliminating Discrimination and Creating a Model Work Environment, TSM stated that he provided information about the Office of Civil Rights and contact information for "the HR Specialist, the Office of the Ombudsman, the [Integrated Conflict Management System] Coordinator that would help them with the information to file that type of concern." TSM testified that he discussed the Agency's policy against retaliation and employees' right to file grievances. In addition, he testified that he explained that a named attorney in the Office of Chief Counsel (OCC-1) reviewed proposed disciplinary actions for legal sufficiency.
Complainant testified that TSM had the handbook with him, but she did not recall that he read from it. According to Complainant:
[TSM was] just was talking about how there were avenues to make complaints but that if anybody did make a complaint, he would make sure that they received further and further more serious discipline before their complaints were even heard and that if it took him months or years that he would make sure that we received this discipline, up to and including removal. And that he ran everything by his friend, [OCC-1], to make sure that it was going to be sufficient to dispense the discipline, I guess.
STSO-1 testified that TSM mentioned that he was good friends with OCC-1 and "was talking about these EEO complaints, and he was just telling us, you know, 'If you do this, I will get you. It may take two months, two years, five years, but I will get you.'" LTSO-1 testified that TSM explained the EEO process "[i]n his own words" and said "that nothing would stick to him" and that "[h]e's had so many before in the past." According to another LTSO (LTSO-2), TSM reviewed the grievance process; stated, "[Y]ou can use whatever processes you want but in the end I keep good records"; and noted "that he worked with . . . the attorney and anything you did would end up - would go nowhere because he knew what he was doing and did things right." A TSO (TSO-3) testified that TSM told the employees their "options" but said that if they "decided to do any of them his buddy [OCC-1] in Legal would handle that for him so we better - just better not grieve anything if we know what's good for us."
Two days later, Complainant and other employees met with the Integrated Conflict Management System (ICMS) Coordinator. According to Complainant, "everybody" reported feeling "intimidated" by TSM. Complainant testified that she called FSD the next day and that he knew that "EEO complaints had been filed."
On August 15, 2009, Complainant received a Notice of Proposed Removal based on the August 9, 2009, X-ray incident. The Assistant Federal Security Director (AFSD), who delivered the Notice, stated in his affidavit that he "had very limited involvement with the proposal" and that TSM handled the matter and "coordinated it though legal counsel." FSD placed Complainant on administrative leave on August 15 and continued the administrative leave on September 28, 2009. While she was on administrative leave, Complainant was not allowed to attend the fall session of the NAC.
On September 3, 2009, TSM issued a Notice of Proposed Removal to STSO-4 for "allow[ing] a previously decertified TSO to operate the X-ray . . . ." FSD, who found that "the allegations [were] not sustained" and that STSO-4's "explanation [was] credible," rescinded the proposed removal on September 23, 2009.
Complainant testified that she met with FSD "five or six" times while she was on leave and that she and her attorney participated in settlement discussions with FSD and OCC-1. According to Complainant, she was told that she could transfer to Spokane as a supervisor but "would be under a microscope" if she stayed at PUW. Complainant, who was concerned about the expenses associated with moving to Spokane, rejected the transfer offer.
In November 2009, Complainant learned that TSM was transferring to another facility. She asked FSD if she could return to work, and he directed her to report to work as a TSO on November 4, 2009. Complainant has asserted that the recertification procedures for her return were handled differently from the past, that she was not allowed to attend the winter session of the NAC, and that TSM rated her unfairly on her Fiscal Year 2009 PASS evaluation.
On November 19, 2009, AFSD issued Complainant a new Notice of Proposed Removal that rescinded and replaced the August 15, 2009, Notice. The new Notice charged Complainant with conducting an unauthorized checkpoint screening by operating the X-ray equipment on August 9, 2009; failing to report a suspected violation with respect to the April 19, 2009, suspected-alcohol incident; failing to follow directions by not maintaining time-and-attendance records; lack of candor during a July 6, 2009, meeting with TSM; misrepresentation of time-and-attendance reports; and failure to comply with Agency policies and procedures. FSD issued Complainant a Notice of Removal on December 11, 2009. On February 19, 2010, an Acting Federal Security Director rescinded the December 2009 Notice of Removal and issued a new Notice of Removal, effective February 22, 2010.
In her decision, the AJ concluded that Complainant did not prove that the Agency subjected her to discrimination or harassment on the basis of sex. The AJ also concluded that Complainant did not prove that the Agency took the alleged actions in reprisal for Complainant's prior protected EEO activity. In addition, the AJ found that the evidence did not establish that the incidents underlying allegations 1, 3, and 7 actually occurred.
With respect to Complainant's sex-discrimination claim, the AJ determined that Complainant did not show that the Agency treated her the way that it did because of her sex. The AJ found that the evidence established that TSM was unhappy with Complainant's and STSO-1's leadership and held them responsible for the "culture of laxness" at PUW. She concluded that the practices that made Complainant and STSO-1 popular with the PUW employees were the very practices that TSM found to be intolerable. For example, TSM objected to allowing employees to "flex" their schedules rather than marking them tardy. He also objected to permitting employees to incur overtime by working three 13.5-hour days while having four days off from work.
Further, the AJ found that the testimony of three visiting STSOs, two of whom were female, undermined Complainant's assertion that TSM had problems with Complainant and STSO-1 because they were women. One of the visiting supervisors (STSO-5) observed several deficiencies and asked to be removed from PUW before the end of her planned stay because there was resistance to her efforts and "[i]t was becoming a not very pleasant place to be." STSO-5 stated that TSM was "tough. I don't know that he was any tougher on a female than he was a male." STSO-3 likewise thought that TSM was "stern" but "held everybody accountable for the same standards." She, too, observed several operational deficiencies at PUW. Similarly, STSO-2 testified that he observed such deficiencies as staff not conducting unpredictable screenings and not using a sign-in sheet.
In addition, the AJ concluded that TSM recommended the temporary demotions of Complainant and STSO-1 because he held them responsible for the deficiencies cited in AO's June 4, 2009, report. She found that, to the extent that TSM treated TSO-2, LTSO-2, and STSO-4 more favorably than he treated Complainant, he did so for nondiscriminatory reasons. TSO-2 was "as ingratiating as possible to TSM," TSO-2 and LTSO-2 were the only employees who attended TSM's supervisor-application training, and STSO-4 was a new STSO with no prior supervisory experience. Moreover, TSM recommended that the Agency remove STSO-4 as well as Complainant after the August 9, 2009, X-ray incident, and STSO-4 accepted FSD's suggestion that he transfer to a different airport.
The AJ noted that employees essentially were divided into "two camps": PUW TSOs and LTSOs who supported Complainant and STSO-1, and visiting STSOs who supported management. She quoted extensively from the affidavit testimony of the ICMS Coordinator, whom the AJ described as a neutral party "who spent a considerable amount of time trying to facilitate communication and build bridges between Complainant and TSM." In her affidavit, the ICMS Coordinator stated that she unsuccessfully attempted to get Complainant and TSM "to have an open discussion" with each other; that she met with PUW employees after the August 10, 2009, staff meeting and the employees "were very distressed, angry, and disheartened"; that employees were loyal to Complainant and believed that TSM used a "Director/Enforcer" management style; that morale had "disintegrated"; and that "[m]ales were equally distressed." The AJ concluded that employees found TSM's "militaristic" leadership style to be abusive and that female employees disliked TSM's style even more than male employees disliked it. She noted, however, that "demonstrating that female officers disliked [TSM's] management style even more than male officers did is not the same as proving that [TSM] treated females more harshly than similarly situated males." Accordingly, the AJ found that Complainant did not establish that the Agency subjected her to disparate treatment or harassment on the basis of sex.
With respect to Complainant's reprisal claim, the AJ found that TSM was aware of Complainant's protected EEO activity by May 2008 and that FSD was aware of it by August 2009. The AJ concluded that TSM took the actions cited in allegations 2, 4, 5, 6, and 12 because he "had a poor opinion of Complainant's performance, conduct, and leadership" and that Complainant did not show that these reasons were pretextual. For example, with respect to the leave restriction, the AJ found "considerable evidence" that Complainant would call in sick when TSM visited PUW. She also found that TSM imposed leave restrictions on employees who had not filed EEO complaints. In addition, the AJ concluded that there was no evidence that the Master Security Training Instructor, who provided the training at issue in allegation 11, was aware of Complainant's prior EEO activity.
The AJ noted that the remaining allegations (8, 9, 10, 13, 14, 15, and 16) related to Complainant's removal. She found that it was appropriate for the Agency not to allow Complainant to attend the fall and winter NAC sessions while she was on administrative leave and the Agency was considering her removal. She further found that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's removal and that Complainant did not show that the reasons were a pretext for reprisal. The AJ concluded that the Agency removed Complainant because of the August 9, 2009, security breach; Complainant's handling of the suspected-alcohol incident; the failure to maintain attendance records; and not complying with Agency policies, including not conducting unpredictable screenings. She noted that three visiting STSOs, AO, and TSM had cited deficiencies in Complainant's performance. The AJ also noted that the Inquiry Officer who conducted a July 2009 administrative inquiry to investigate Complainant's allegations of PASS abuse and misconduct criticized Complainant's and STSO-1's "attitude of, "It is our airport and we are more than capable of running it without management interference. . . ." The AJ found that FSD's reliance on input from outside observers was reasonable and that Complainant did not show that the reliance was a pretext for reprisal.
With respect to allegation 13, the AJ noted that she had conditionally granted the Agency's motion to exclude FSD's comments on the ground that they were made during settlement negotiations. The AJ also noted, however, that she had asked FSD at the hearing why he would allow Complainant to be transferred to another airport if she was so terrible that she should be fired. FSD responded that Complainant "could have a great career" but "needed closer supervision," which she could receive at the other airport. Although it was not clear whether the proposed transfer was part of settlement negotiations or part of FSD's deliberations on whether to remove Complainant, the AJ found that "nothing about [FSD's] decision to remove Complainant after she refused to transfer . . . appears retaliatory." FSD wanted to change the work culture at PUW. The AJ concluded that, when Complainant declined the transfer offer, FSD removed her because he did not believe that other discipline would have been effective. She found that FSD's explanation was consistent with his decision to transfer STSO-4 to another airport. In addition, the AJ found FSD "to be a consistent and credible witness with an open demeanor." Further, noting that FSD allowed STSO-1 to remain at PUW because she accepted responsibility for her mistakes and that he promoted STSO-1 back to an STSO position while her EEO complaint was pending, the AJ found that reprisal was not the cause of Complainant's and STSO-1's "different paths."
The AJ also found, however, that Complainant established that the Agency subjected her to per se reprisal when TSM made retaliatory statements during the August 10, 2009, meeting. Relying on witness testimony, and particularly that of LTSO-2, the AJ concluded that TSM's statements "were specifically intended to deter the employees from engaging in EEO activity." The AJ found that, although TSM paid "lip service" to employees' rights to pursue EEO complaints or grievance procedures, TSM's "emphasis on his careful record-keeping and the 'legal sufficiency' review performed by 'his good friend' [OCC-1] had the purpose of dissuading employees from challenging the disciplinary actions he was proposing to implement, absent improved compliance with [Agency] policies and procedures." She concluded that TSM's "stated commitment to pursuing disciplinary action over months or years, despite EEO complaints, was intended to convince the employees of the futility of exercising their EEO rights." Accordingly, citing Commission precedent, the AJ found that TSM's comments constituted per se reprisal.
As a remedy for Complainant's successful reprisal claim, the AJ ordered the Agency to pay Complainant $8,000.00 in non-pecuniary compensatory damages. She also ordered the Agency to provide training for TSM regarding the Agency's duties under Title VII and to post a notice informing employees of the finding of reprisal.
In addition, the AJ ordered the Agency to pay Complainant $20,148.52 in attorney's fees and costs. The AJ noted that Complainant had requested $62,360.50 in fees and $1,923.31 in costs, for a total of $64,283.81. The fee request, however, included "redacted items." Based on her calculations the AJ determined that the fee request actually amounted to $38,770.00. That amount included 175.7 hours of legal work at the rate of $200.00 per hour for Complainant's attorney, six hours of legal work at the rate of $180.00 per hour for an associate attorney, 23.8 hours of work at the rate of $100.00 per hour for a third-year intern, two hours of work at the rate of $75.00 per hour for a second-year intern, and .4 hours of work at the rate of $50.00 per hour for a legal assistant. The AJ determined that the associate attorney's hours related to damages evidence and that the interns performed work under the supervision of Complainant's attorney. The AJ found that the requested hours and hourly rates were reasonable. She also found that the reprisal claim concerning the August 10, 2009, meeting was separate from Complainant's sex-discrimination and other reprisal claims. The AJ concluded that, although several witnesses testified about the meeting and other issues, the claims did not involve a common core of facts and "the per se reprisal claim could stand entirely on its own." Therefore, the AJ applied a 50 percent downward adjustment to the lodestar calculation and awarded Complainant $19,385.00 in attorney's fees.
The AJ agreed with the Agency's argument that Complainant was not entitled to reimbursement for overhead costs. Accordingly, the AJ reduced the requested amount and awarded $763.52 in costs.
On November 6, 2014, the Agency issued a final order rejecting the AJ's finding of a per se reprisal violation. It simultaneously filed this appeal. On November 18, 2014, the Agency requested an extension of time within which to file a supporting brief. On November 21, 2014, the Commission's Office of Federal Operations (OFO) granted the request and notified the parties that the Agency's brief was due January 12, 2015, and Complainant's brief was due February 11, 2015. By letters dated November 26, 2014, OFO informed the parties that it had docketed the Agency's appeal as EEOC Appeal Number 0720150010. Complainant subsequently filed a cross appeal. By letters dated January 9, 2015, OFO notified the parties that Complainant had filed her appeal on December 3, 2014, and that the Commission would adjudicate both appeals under docket number 0720150010.
CONTENTIONS ON APPEAL
On appeal, the Agency argues that the AJ erred as a matter of law because she did not apply the "but for" causation standard that the Supreme Court discussed in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. __, 133 S. Ct. 2517 (2013). The Agency contends that Commission precedent, which holds that the "but for" causation standard discussed in Nassar does not apply to federal-sector retaliation claims, "is wrong." The Agency also contends that substantial evidence does not support the AJ's finding of per se reprisal.
Further, the Agency argues that there should be an additional 25 percent across-the-board reduction in the award of attorney's fees because Complainant prevailed on only one, non-complicated claim. According to the Agency, the per se reprisal claim was "completely separate" from the allegations involved in Complainant's hostile-work-environment claim. In addition, the Agency argues that Complainant should not be compensated for the work of the associate attorney and two interns because Complainant did not submit evidence about their legal backgrounds.
In response to the Agency's appeal, Complainant, through her attorney, argues that the AJ could not have applied the Nassar decision to her case because the Supreme Court issued the decision after the evidentiary hearing in this case. She also argues that the "but for" standard is irrelevant here, where TSM's statements had the effect of intimidating employees and constituted per se reprisal. In addition, Complainant contends that the Agency's request for a reduction in the award of attorney's fees "is misplaced."
With respect to her own appeal, Complainant argues that the AJ denied her due process because ten of her proposed witnesses "were not allowed to testify due to EEOC budget and time constraints." She contends that a TSO (TSO-5) "was scheduled as a rebuttal witness, but because of time constraints was not allowed to testify" regarding the X-ray incident. Complainant asserts that, "in large part because the Agency spent the better part of the three-day hearing allotment putting on its witnesses, there was no time for Complainant's rebuttal witnesses to testify." She also asserts that Agency counsel sent away one of her proposed witnesses, the former PUW Airport Manager, when he arrived at the hearing. She quotes from a notarized witness statement in which the PUW Airport Manager asserted that TSM was responsible for "a significant deterioration in TSA team morale," that there was "a toxic work environment" at PUW, and that he "believe[d] that the discipl[i]nary actions taken against [Complainant] were unmeritted [sic] and the result of retail[a]tory management practices by [TSM]."4
In addition, Complainant asserts that the AJ erroneously considered the ICMS Coordinator to be a neutral party. She also asserts that TSM subjected her to "tyranny" and threatened and intimidated the PUW female supervisors. Complainant argues that the Agency treated her differently from the way that it treated similarly-situated male employees and that "[h]er removal was the culmination of the intimidation and reprisal she had endured."
In response to Complainant's appeal, the Agency argues that Complainant did not file her appeal in a timely manner. It also argues that the Nassar decision applies retroactively. In addition, the Agency contends that the AJ properly excluded irrelevant testimony. With respect to the PUW Airport Manager, the Agency asserts that Complainant had the opportunity to call him as a witness on the last day of the hearing but did not do so. In response to Complainant's assertion that Agency counsel sent the Manager away from the hearing site, the Agency states that the Manager "was not an Agency employee, and, as such, he was never under the Agency's control."
In a subsequent submission, Complainant reiterated her assertion that Agency counsel sent the PUW Airport Manager away from the hearing site. She submitted a notarized statement in which the Manager stated that he had not been notified of the time for his testimony, that he "called prior to [his] arrival to determine what time [he] would be testifying and was informed the time had not been determined," that he went to the hearing site and knocked on the door, and that a person whom he believed to be an Agency representative told him "at that time that [his] testimony would not be required and that [he] could leave." In response, the Agency argued that Complainant may not submit new evidence on appeal, that the Manager was not under Agency control, that it was Complainant's obligation to secure the Manager's testimony, and that Complainant should have informed the Manager of the correct time and date for him to report to the hearing. The Agency asserted that Complainant and her attorney were present when the Manager arrived at the hearing site and that Complainant did not object to the AJ's "decision to continue with the pending witness examination rather than take [the Manager] out of order." Complainant replied that she was not afforded due process because circumstances beyond her control prevented the Manager from testifying on her behalf.5
STANDARD OF REVIEW
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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether 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. See 29 C.F.R. � 1614.405(a). 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 for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Timeliness of Appeal
Pursuant to 29 C.F.R. � 1614.402(a), an appeal must be filed within 30 days of receipt of the final agency action. A document is timely filed if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. Id. � 1614.604(b).
Here, the Agency issued its final order on November 6, 2014, and Complainant filed her appeal on December 3, 2014. Therefore, Complainant's appeal, which was filed within 30 days of the Agency's final order, was timely filed.
Denial of Witnesses
An Administrative Judge has broad discretion in the conduct of hearings and has authority to limit the number of witnesses so as to exclude irrelevant and repetitious evidence. EEO MD-110, Chap. 7, at � III.D. Having reviewed the evidence of record and Complainant's arguments on appeal, we find that the AJ did not abuse her discretion by disapproving six of Complainant's proposed 18 witnesses on the basis of relevance. We further find that the AJ did not abuse her discretion when she determined that two of the proposed witnesses, including the former PUW Airport Manager, could testify if time allowed and that a third (TSO-5) could testify as a rebuttal witness if warranted. The record does not support Complainant's assertion that the AJ improperly denied her the opportunity to call necessary witnesses.
Further, based on the record before us, we cannot say that Complainant was improperly denied the opportunity to call the former PUW Airport Manager as a witness. As noted above, we find that the AJ acted within her discretion when she determined that the Manager could testify if time allowed. Complainant asserts that Agency counsel sent the Manager away from the hearing site, but she has not explained what, if any, steps she took to arrange for the Manager's appearance at the hearing. Moreover, having reviewed the Manager's notarized statements, we do not find that Complainant has shown that the Manager would have provided persuasive evidence of discrimination. For example, although the Manager opined that TSM engaged in retaliatory practices, he did not link the alleged retaliation to Complainant's protected EEO activity. Similarly, the Manager's opinion that there existed a "toxic work environment" and poor morale at PUW does not constitute evidence of discrimination based on sex or reprisal. We find that the evidence of record does not establish an abuse of discretion in the conduct of the hearing.
Harassment Based on Sex and in Reprisal for Prior Protected EEO Activity
Complainant has alleged that the Agency subjected her to a discriminatorily hostile work environment and retaliated against her for protected EEO activity with respect to several incidents and her removal from the Agency.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 � 8.II.D at 8-11-16 (May 20, 1998).
In this case, we find that substantial evidence of record supports the AJ's determination that Complainant did not establish that the Agency subjected her to discrimination on the basis of sex or in reprisal for prior protected EEO activity with respect to the 16 incidents raised in her formal complaint. We agree with the AJ's finding that the evidence did not show that the actions at issue in allegations 1, 3, and 7 occurred. We also agree with the AJ's finding that Complainant did not show that the Agency's articulated reasons for the actions at issue in allegations 2, 4, 5, 6, and 12 were a pretext for discrimination. Substantial evidence establishes that TSM took the actions because of concerns about Complainant's performance rather than because of her sex or protected EEO activity. The evidence shows that TSM and visiting STSOs found operational deficiencies at PUW. Complainant and STSO-1, as the supervisors at PUW, were held responsible for those deficiencies.
Further, substantial evidence of record supports the AJ's findings with respect to the remaining allegations. Complainant has not shown that the Agency discriminated against her on the basis of sex or reprisal regarding the fall and winter NAC sessions or her November 2009 return to duty and training. Similarly, Complainant has not shown that the Agency removed her from the Agency because of her sex or prior EEO activity rather than because of the X-ray and suspected alcohol incidents and the lack of compliance with Agency policies. With respect to Complainant's allegation that FSD discriminatorily asked her to transfer to another airport, we note that FSD testified that Complainant could receive closer supervision at the other airport. We also note that the AJ, who had an opportunity to observe FSD's demeanor, expressly found FSD to be a credible witness. Complainant has not established that the Agency discriminatorily removed her or subjected her to harassment on the basis of sex or in reprisal for prior protected EEO activity.
Per Se Reprisal
Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (complainant told that filing an EEO suit was "wrong way to go about getting a promotion"). Agencies have a continuing duty to promote the full realization of equal employment opportunity in their policies and practices. 29 C.F.R. � 1614.101(a). This duty extends to every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Agencies are obligated to insure that managers and supervisors perform "in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity." 29 C.F.R. � 1614.102(a)(5); see also Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010) (per se violation found where supervisor mentioned EEO complaints had been filed and said, "What goes around, comes around"); Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009) (per se violation found when a labor management specialist told the complainant, "as a friend," that her EEO claim would polarize the office); Binseel v. Dep't of the Army, supra. When a supervisor's behavior has a potentially chilling effect on the use of the EEO complaint process - the ultimate tool that employees have to enforce equal employment opportunity - the behavior is a per se violation.
In this case, substantial evidence supports the AJ's determination that TSM made statements during the August 10, 2009, staff meeting that were intended to discourage employees from engaging in protected EEO activity. TSM's statements regarding record-keeping, legal sufficiency, and the supposed futility of exercising statutorily protected rights were clearly designed to have a chilling effect on the use of the EEO process. These comments, which on their face discourage employees from participating in the EEO process, constitute per se retaliation.
There is no merit to the Agency's assertion that the AJ erroneously failed to apply the decision in Southwestern Medical Center v. Nassar, 530 U.S. __, 133 S. Ct. 2517 (2013) ("but for" causation applies to Title VII's anti-retaliation provision in section 704, 42 U.S.C. � 2000e-3), to this matter. As the Agency has acknowledged, and as we have repeatedly held, it is the Commission's position that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal-sector applicants or employees under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Nita H. v. Dep't of Interior, EEOC Petition No. 0320110050 (July 16, 2014); see also Complainant v. Dep't of Homeland Sec. EEOC Request No. 0520140014 (Sept. 9, 2015); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720140014 (Aug. 19, 2015), request for recon. denied, EEOC Request No. 0520160043 (Feb. 5, 2016); Donny F. v. Dep't of Homeland Sec., EEOC Appeal No. 0720130035 (Oct. 20, 2015); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720140037 (May 29, 2015).
Moreover, as explained above, TSM's comments by themselves constitute reprisal because they were reasonably likely, and in fact clearly intended, to deter a reasonable employee from engaging in protected activity. See Joey B. v. Dep't of Justice, EEOC Appeal No. 0120152864 (May 6, 2016) (Agency engaged in per se reprisal when manager openly criticized the filing of EEO complaints during a meeting). TSM's statements demonstrate, at best, an ignorance of his responsibilities under EEO laws and, at worst, blatant disregard for the rights of individuals under those laws. As the AJ correctly held, TSM's comments constituted per se reprisal.
Attorney's Fees
Title VII authorizes an award of attorney's fees to a prevailing party. See 29 C.F.R. � 1614.501(e)(2)(ii)(B). A prevailing party for this purpose is one who succeeds on any significant issue and achieves some of the benefit sought in bringing the action. Davis v. Dep't of Transp., EEOC Request No. 05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
An attorney's fees award ordinarily is determined using the "lodestar" method, under which the number of hours reasonably expended is multiplied by a reasonable hourly rate. See 29 C.F.R. � 1614.501(e)(2)(ii)(B); see also EEO MD-110, Chap. 11, at � VI.F.1 (citing Hensley v. Eckerhart, 461 U.S. at 434 (1983)). An AJ has discretion to determine the amount of any adjustment to the lodestar and may add or subtract a lump sum or a percentage from the lodestar figure. EEO MD-110, Chap. 11, at � VI.F.2.e. The degree of success is a factor in calculating the award. Id. at � VI.F.1.h. The hours spent on unsuccessful claims should be excluded from the calculation only when the unsuccessful claims are distinct in all respects from the successful claims. Id. at � VI.F.1.g. (citing Hensley (claims are unrelated when they involve "distinctly different claims for relief that are based on different facts and legal theories")). Attorney's fees are available for work pursuing a claim for damages. Id. at � VI.H.4.
In this case, Complainant alleged that the Agency subjected her to a hostile work environment because of her sex and in reprisal for protected EEO activity. The AJ, who found that Complainant established that the Agency subjected her to per se reprisal with respect to TSM's comments at the August 10, 2009, staff meeting, determined that an award of attorney's fees was appropriate and that the requested hours and rates were reasonable. In light of Complainant's degree of success, the AJ reduced the lodestar calculation by 50 percent.
We are not persuaded by the Agency's argument that there should be an additional 25 percent reduction in the attorney's fees awarded to Complainant. Although the AJ stated that the per se reprisal claim could stand on its own, she also noted that several witnesses testified about the matter. The AJ appropriately considered the degree of success when she reduced the award by 50 percent. Similarly, the AJ appropriately considered that the associate attorney performed work related to damages evidence and that the legal interns performed work under the supervision of Complainant's attorney. We find, therefore, that the AJ did not abuse her discretion when she awarded Complainant $19,385.00 in attorney's fees.
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. We AFFIRM the Agency's acceptance of the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination or harassment on the basis of sex or in reprisal for protected EEO activity with respect to several actions between April 2009 and February 2010. We REVERSE the Agency's rejection of the AJ's finding that the Agency subjected Complainant to per se reprisal and REMAND the matter to the Agency for further action in accordance with this decision and the Order below.
ORDER
The Agency is hereby ORDERED to take the following remedial actions:
1. Within one hundred twenty (120) calendar days of the date this decision becomes final, the Agency shall pay Complainant $8,000.00 in non-pecuniary compensatory damages.
2. Within one hundred twenty (120) calendar days of the date this decision becomes final, the Agency shall pay Complainant $19,385.00 in attorneys' fees. The Agency will also calculate and award any additional attorney's fees and costs that were incurred during the instant appeal. Complainant will cooperate with the Agency in providing it with information and documentation necessary for calculating any additional attorney's fees and costs, as described in the section below titled "Attorney's Fees."
4. Within one hundred twenty (120) calendar days of the date this decision becomes final, the Agency shall pay Complainant $763.52 in costs.
5. Within one hundred and twenty (120) calendar days of the date this decision becomes final, the Agency shall provide at least eight (8) hours of in-person training to the responsible management official (TSM) regarding his responsibilities with respect to Title VII, with special emphasis on the topic of reprisal/retaliation and his responsibilities under the federal sector EEO process.
6. The Agency shall post a notice of the finding of discrimination, pursuant to the paragraph below entitled "Posting Order."
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 (G0914)
The Agency is ordered to post at its Pullman-Moscow Regional Airport facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 2, 2016
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Agency, which stated in the final order that it did "not fully implement" the AJ's order, did not specifically address the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination or harassment on the basis of sex or in reprisal for protected EEO activity with respect to several actions between April 2009 and February 2010. We interpret the final order to implement the AJ's finding of no discrimination with respect to those matters.
3 Complainant also alleged that the Agency discriminated against her on the basis of age. She withdrew that allegation during the investigation of her complaint.
4 The PUW Airport Manager's statement was one of several written statements that Complainant submitted to the AJ prior to the June 17, 2014, damages hearing. On June 13, 2014, the AJ informed the parties that she had reviewed the statements, that she would not consider additional testimony on the merits of Complainant's claims, that some of the information in the statements was relevant to damages, and that she would consider the relevant evidence.
5 Commission regulations provide that a complainant's brief in support of an appeal must be submitted within 30 days of filing the notice of appeal, an agency brief in support of an appeal must be submitted within 20 days of the notice of appeal, and a brief in opposition to an appeal must be filed within 30 days of receipt of the brief supporting the appeal. 29 C.F.R. � 1614.403. The regulations do not provide for subsequent submissions. See id. The Commission has exercised its discretion and has considered the parties' late submissions to the extent that they address the PUW Airport Manager's proposed testimony.
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