Casie S.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 6, 2017

0120151599 (E.E.O.C. Nov. 6, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Casie S.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120151599

Hearing No. 520-2012-00104X

Agency Nos. NY-09-0328-SSA, NY-09-0627-SSA, NY-09-0758-SSA

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency’s final order dated March 11, 2015, concerning Complainant’s
complaints alleging employment 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons,
we AFFIRM the Agency’s final order.

BACKGROUND

The record indicates that Complainant filed three complaints, cited above, on April 16, 2009,
July 28, 2009, and November 16, 2009, raising the following issues:

(1) Whether she was discriminated against based on disability and in reprisal for prior EEO
activity when on February 20, 2009, she was denied reassignment as an accommodation
and on February 24, 2009, she was threatened by the operations supervisor for making
the request;

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.
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(2) Whether she was discriminated against based on sexually harassed when she was
subjected to a male coworker’s continuous inappropriate behavior; and

(3) Whether she was discriminated against based on sex (female) and in reprisal for prior
EEO activity when on July 14, 2009, she was charged ¼ hour Absence Without Leave.

The record indicates that after the investigation, Complainant requested a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). During a prehearing
conference, on May 7, 2014, Complainant withdrew claim (3). On May 28, 2014, the AJ held a
hearing on remaining claims (1) and (2).

After the hearing, on October 23, 2014, the AJ issued an interim decision finding no
discrimination regarding Complainant’s claims with the exception of her retaliation claim
concerning her supervisor threatening her by saying he would be less “forthcoming” in the future
if she did not remove his name from her reasonable accommodation reconsideration request,
described in claim (1). On January 28, 2015, the AJ held a hearing for the purpose of hearing
evidence related to damages and issued his decision, incorporating the October 23, 2014 interim
decision, finding that Complainant was entitled to compensatory damages in the amount of $500.
Therein, the AJ also ordered the Agency to post a notice regarding the finding of discrimination.
On February 11, 2015, the AJ issued his Order Entering Judgment.

On March 11, 2015, the Agency issued its final order fully implementing the AJ’s decision
finding reprisal discrimination (for a portion of claim (1)) and the remedial award. The record
indicates that on February 25, 2015, the Agency posted the notice ordered by the AJ and paid
$500 in compensatory damages to Complainant on March 4, 2015.

Complainant appeals the portion of the Agency’s final order finding no discrimination and
contends that she is entitled to compensatory damages for more than $500.

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. (Aug. 5, 2015).

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Claim (1): Denial of Reassignment (Transfer)

At the relevant time, Complainant was employed by the Agency as a TeleService Contract
Representative, GS-8, in Jamaica TeleService Center, Region 2, Deputy Commissioner of
Operations, Jamaica, New York. The AJ noted that Complainant injured her right hand outside
of work and while recovering from her hand surgery, a file cabinet fell on her while she was at
work in December 2004. She was then out of work from approximately the time of her injury in
2004, until sometime in 2007. During that time, she was in Georgia near her family and tried to
transfer to a local Agency office in Georgia. When she had to return to work at her office in
Jamaica, New York, she had trouble finding an apartment and she was forced to commute about
an hour and a half if she drove and over two hours if she used public transportation.

Complainant indicated that she had problems with her knees, back, and hand, neurological
related deficits and fibroid tumors. Complainant stated that her commute aggravated her
condition. The AJ stated that on January 23, 2009, Complainant requested a transfer to either the
Poughkeepsie, New York office or the Newburgh, New York office. The Agency asked her to
provide necessary medical documentation to support her request.

Complainant submitted a note from her neurologist dated February 13, 2009, concerning her
lower back and foot pain wherein which the doctor stated that she not use stairs until her
conditions improve. She also submitted a prescription note from a doctor dated December 30,
2008, indicating that: she had been seen for pain in her feet and legs; she had been advised to
avoid heavy lifting (more than 15 pounds) or excessive ambulation while at work; and her
condition would be reassessed at a later date.

The Agency’s medical officer found the foregoing medical documentation ambiguous or
incomplete because it was uncertain what Complainant’s condition was, how long she had it,
why her activities were only restricted at work, and how long these restrictions were
recommended. The foregoing finding was communicated to the Agency’s reasonable
accommodation coordinator. On February 20, 2009, as recommended by the Agency’s medical
officer and the Agency’s reasonable accommodation coordinator, Complainant’s supervisor (S1)
issued a letter to Complainant denying her request for a transfer. Therein, Complainant was also
informed that she could submit additional medical documentation and request a reassessment.
We find that Complainant failed to show that the requested transfer was necessary or in any way
effective to accommodate her claimed disabilities. Furthermore, we find no evidence that the
denial of the reassignment request was motivated by retaliation. We find that substantial
evidence supports the AJ’s finding of no discrimination regarding the denial of the reassignment
request.

Claim (1): S1’s Threat

The record indicates that after her receipt of the February 20, 2009 denial of reassignment letter,
Complainant sent an email to S1 on February 24, 2009, seeking reconsideration of the decision
denying her transfer request and asked him to forward the request through the chain of
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command. Complainant testified that S1 came to her at the end of that day and “told me that if I
didn’t want trouble I better remove his name from my, you know, what I was appealing – I better
remove his name because, and I said, well, the letter said I should be sending this letter, you’re
my supervisor and he insisted that if I didn’t I would have a lot of trouble.” Complainant
testified that she felt S1’s threat was a “letdown” and she thought her request would be denied as
a result of his action.

S1 testified that at the relevant time he was under a lot of stress and he had to come in to work
because of staffing needs even though he was sick; he did not feel that the February 20, 2009
denial decision had been his; and he felt he was “signing [his] name to a decision that [he] had
no part in doing.” S1 testified: “I just didn’t want to be in the middle of it, and I wanted my
name off the decision. I told her that I would be a little bit less than forthcoming with certain
discussions that we had regarding work;” he spoke in an angry tone; and “I can understand that
she would feel threatened.” S1 further testified that he was called into Complainant’s second
level supervisor’s (S2) office after the incident and was told what he said to Complainant was
inappropriate of which “I agreed and I later apologized to [Complainant].”

S2 testified that at the relevant time, Complainant came to her complaining about the foregoing
incident. S2 then called S1 in and talked to him “that he should think about stepping down from
the supervisor position,” and the following day, S1 informed her that he “wanted to go back to
his former position,” which was a nonsupervisory position (a demotion in grade). S2 testified
that since S1 decided to go back to his former position, she decided not to discipline him for his
conduct.

Complainant admitted that S1 apologized to her and she then “basically . . . moved on,” and that
S1 did not tell her not to submit a request for reconsideration, but “just to take his name off of
what I was submitting.” After the incident, testified Complainant, she went to S2 and submitted
her reasonable accommodation reconsideration request in a timely manner.

The AJ found and we agree that Complainant failed to show that S1 threatened her due to her
disability. We find that substantial evidence supports the finding of no disability discrimination
regarding the February 24, 2009 incident. The AJ found that Complainant was retaliated against
when her supervisor threatened her by saying that he would be less “forthcoming” in the future if
she did not remove his name from her reasonable accommodation reconsideration request.

Compensatory Damages for S1’s Threat

The Commission notes that damage awards for emotional harm are difficult to determine and
there are no definitive rules governing the amount to be awarded in given cases. A proper award
must meet two goals: that it not be "monstrously excessive" standing alone, and that it be
consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848
(7th Cir. 1989). Section 102(a) of the 1991 Civil Rights Act authorizes an award of
compensatory damages for all post-act pecuniary losses, and for non-pecuniary losses, such as,
but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment
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of life, injury to character and reputation, and loss of health. To receive an award of
compensatory damages, Complainant must demonstrate that he has been harmed as a result of
the Agency’s discriminatory action; the extent, nature and severity of the harm; and the duration
or expected duration of the harm. Rivera v. Department of the Navy, EEOC Appeal No.
01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927
(December 8, 1995); EEOC’s Enforcement Guidance: Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-
12, 14 (July 14, 1992) (“Guidance”). Complainant is required to provide objective evidence that
will allow an agency to assess the merits of her request for damages. See Carle v. Department of
the Navy, EEOC Appeal No. 01922369 (January 5, 1993). The award should take into account
the severity and duration of the harm. Carpenter v. Department of Agriculture, EEOC Appeal
No. 01945652 (July 17, 1995).

In determining compensatory damages, the Commission strives to make damage awards for
emotional harm consistent with awards in similar cases. In this case, the AJ considered the facts
that S1 apologized for his action; S1 was quickly removed from his supervisory position;
Complainant and S1 were able to interact with each other in a normal fashion nearly immediately
after the incident; and Complainant was able to proceed with her request for reconsideration of
her denied reasonable accommodation in a timely manner. The AJ determined that
Complainant’s testimony that her physical and mental health dramatically worsened after the
comment was not credible as it was neither supported by any medical documentation nor
corroborated by testimony.

After considering the awards in similar cases and all of the relevant factors discussed above, the
AJ found and we agree that Complainant was entitled to compensatory damages in the amount of
$500. See Complainant v. U.S. Postal Service, EEOC Appeal No. 0120133316 (Sep. 4, 2014)
(complainant awarded $250 when an acting supervisor openly discussed the fact that she filed an
EEO complaint with her coworkers and she provided very little evidence to support a claim of
compensatory damages); Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No.
0120122266 (Oct. 18, 2012) (complainant was awarded $500 when she suffered workplace
paranoia, insomnia, and increased stress as a result of Agency’s per se interference with EEO
process); and Complainant v. U.S. Postal Service, EEOC Appeal No. 0120101454 (Dec. 16,
2010) (complainant awarded $500 who suffered reprisal when a supervisor referenced EEO
activity by saying, “what goes around comes around.”). Based on the foregoing, we find that an
award of $500 meets the goals of not being "monstrously excessive" standing alone and being
consistent with the amounts awarded in similar cases, described above. The AJ noted that
Complainant did not request, nor provide evidence of, pecuniary damages. Complainant does
not dispute this on appeal.

Claim (2):

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To establish a claim of a hostile work environment, Complainant must show that: (1) she is a
member of a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; (4) the harassment affected a term or
condition of employment and/or 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. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). We note that sex-based harassment -- that is, harassment not
involving sexual activity or language -- may give rise to Title VII liability if it is “sufficiently
patterned or pervasive” and directed at employees because of their sex. See EEOC Policy
Guidance on Current Issues of Sexual Harassment, No. N-915-050, at Guidance, § C. (Mar. 19,
1990).

Here, Complainant claimed that she was harassed by a male coworker (C1), a Telephone
Communications Specialist, who was responsible for taking care of the phones and computer
systems in the office. Complainant testified that C1 would be in her proximity, gave her “a nasty
look,” sat next to her at a training session on one occasion, leaned over her on the computer for
work related reasons on one occasion, was in the same common area lobby as she was, walked in
her direction as she signed into work one day, came towards her so he could throw something out
in the trash and then walked away from her, walked towards her but did not follow her when she
walked away, and walked by her cubicle. The AJ found that Complainant’s claims were not
sufficiently severe or pervasive to constitute illegal sexual harassment.

Complainant also claimed that C1 “rubbed up against her behind” on July 14, 2009. The AJ,
however, found that Complainant’s testimony about this incident not credible because her
testimony was inconsistent with her prior statements. On July 14, 2009, Complainant sent an
email to S3 stating that “An incident occurred [approximately] 15 minutes ago. I was coming
out of the ladies room and [C1] came toward me and I felt threatened. I quenched up against the
wall because I was afraid… Had I known he was in this area I would have gone to another area
to go to the ladies room…” The AJ noted that in the foregoing email, Complainant did not
mention that she was touched in anyway in light of the fact that she did not hesitate to email S3
to complain every time she merely saw C1 in passing in common areas.

The AJ also noted that on July 15, 2009, Complainant sent another email to her then new
supervisor stating for the first time that “[C1] brushed against me as he passed.” Specifically,
Complainant indicated that on July 14, 2009, as “I was leaving the ladies room I noticed [C1] at
the entry way of the break room at the ladies room I was afraid. I proceeded to the right and
began walking down the hall looking back and he was behind me and I balled up and braced
myself against the wall as he was passing and he brushed against me as he passed. I’d like to do
an incident report. I am not safe here. I would like to request an immediate reassignment to
another work location…”

The AJ noted that in her affidavit, Complainant stated that “… on July 14, 2009, when he
touched me inappropriately when I was running to get away from him...” We note that as relief,
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Complainant requested an immediate transfer to either the Poughkeepsie, New York office or the
Newburgh, New York office, both of which she previously requested as a reasonable
accommodation and was denied.

The AJ further noted that at the hearing, Complainant testified “As I started walking going in the
other direction that’s when he came up right behind me and rubbed against my behind, and I just
took off screaming….” The AJ also noted that in the EEO Counselor’s Report, the Counselor
stated that Complainant claimed that “on July 14, 2009, as she was coming out of the ladies’
room, [C1] came towards and she felt threatened.” Furthermore, stated the AJ, Agency officials,
who saw Complainant immediately after the incident, testified that Complainant never said that
she was touched by C1 when they saw her as she was yelling in the hallway afterwards.

Based on the foregoing, the AJ found Complainant’s testimony about the July 14, 2009 incident
not credible. The AJ further found that Complainant failed to show that C1 ever brushed up
against her or that she ever told management officials on July 14, 2009, that C1 ever touched her.
Looking at the totality of the circumstances, the AJ also found that management’s failure to
investigate the incident was not significant because C1’s conduct toward Complainant was not
sufficiently severe or pervasive to create a hostile work environment. We find substantial
evidence supports the AJ’s finding that Complainant failed to establish a claim of a hostile work
environment.

Remedies

We find no reason to order any further remedies because all relief has been granted. The Agency
has paid the compensatory damage award and posted the notice of discrimination. The Agency
has already considered (and rejected) discipline for S1. There is no indication Complainant was
represented by an attorney in the complaint process. We agree with the AJ that EEO training is
not required under the circumstances because S1 was quickly removed from his supervisory
position (and would not be in a position to take this type of discriminatory action), S1 had no
further incidents with Complainant of this nature, S1 apologized to Complainant (although no
apology would be necessary as relief), and S1 acknowledged he made a mistake

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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

November 06, 2017
Date