EEOC Appeal No. 0720140021
08-19-2015
Complainant v. Dep't of Homeland Sec.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0720140021
Hearing No. 480-2010-00187X
Agency No. HS-CBP-003784-2009
DECISION
Following its January 31, 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 EEOC Administrative Judge's (AJ) finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Border Patrol Trainee/Intern at the Agency's Imperial Beach Station in San Diego, California.
On May 5, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (cognitive/learning impairment) and reprisal for prior protected EEO activity when:
1. Complainant was subjected to a hostile work environment from February 2009 to July 28, 2009.
2. Complainant was denied reasonable accommodations following his February 20, 2009 request.
3. On July 28, 2009, Complainant was terminated from his position.
4. Following his termination, Complainant was subjected to additional acts of harassment when four Agency employees accompanied Complainant to his home, parked near Complainant's residence for approximately 45 minutes, and one of the employees warned another to "watch your back" in Complainant's presence.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
A hearing was held on October 1 and December 19, 2012, at which five witnesses testified. On February 7, 2013, the Agency and Complainant submitted their proposed findings of fact and conclusions of law. Thereinafter, the record was closed.
On December 19, 2013, the AJ issued a final decision on liability, damages and attorney's fees, concluding that Complainant had established unlawful disability discrimination and retaliation for prior EEO activity when he was harassed between February and July 2009, the Agency delayed and then denied his request for reasonable accommodation, he was terminated from his position on July 28, 2009, and he was subjected to further harassment at his home on the day of his termination.1 Among other things, the Agency was ordered to reinstate Complainant under specified training conditions with back pay and interest, to compensate him for any tax consequences as a result of his award, to provide him with front pay (up to three years) until his reinstatement, and to expunge all references to his termination from his personnel records. In addition to equitable relief, the AJ determined that Complainant was also entitled to $52,250 dollars in non-pecuniary compensatory damages for pain and suffering commencing in February 2009 and through his period of unemployment that ended in December 2009. Finally, Complainant was awarded attorney's fees in the amount of $33,868.75 and $1,854 in legal costs.
In reaching this decision, the AJ determined that the evidence revealed the following facts pertinent facts:
Complainant was hired by the Agency as a Border Patrol Trainee/Intern, which required him to complete a two-year period of training beginning on August 29, 2008. After passing his initial training at the Border Patrol Academy in Artesia, New Mexico, he reported for his next phase on February 8, 2009, at the Agency's facility in San Diego, California.
In San Diego, Border Patrol Agents served as Complainant's Field Training Officers (FTOs). The FTOs served as Complainant's instructors, assigned daily work and training assignments, evaluated his performance, scored his tests and quizzes, closely monitored his field work, and completed training reports assessing Complainant's performance. The FTOs prepared Field Observation Reports/Field Training Records, which were reviewed by Complainant's management to determine if Complainant should be terminated or converted to a career employee. These reports were prepared either weekly or bi-weekly and were given considerable weight in management's decision to retain or terminate the Trainees/Interns.
The AJ found that on February 11, 2009, Complainant advised the Supervisory Field Training Officer ("SL Supervisor") that he had a learning disability. The SL Supervisor asked for additional documentation to support Complainant's assertion. On that date, Complainant indicated that the alleged harassment began. He said that the SL Supervisor began making predictions about Complainant's purported inability to memorize facts both directly to Complainant and to the FTOs. On the same day, FTO SS made disparaging and embarrassing comments about Complainant to the whole class. FTO SS continued to ridicule Complainant by stating that his daughter at five could remember the station's phone number. The next day, FTO RS told the entire intern class that Complainant could have worked all day and still would not be able to complete the work. On February 13, 2009, FTO VA made sounds of shock and laughed while reviewing Complainant's test on February 13, 2009. On February 18, 2009, FTO SS remarked, while Complainant was reading a Field Observation Report, "I could read Moby Dick in less time." In sum, the AJ found that the record supported Complainant's claim that he was openly ridiculed by the FTOs, including FTO RS, FTO SS, FTO VA, and FTO JZ, on various occasions starting in February 2009.
During this time, Complainant began taking notes on the events he felt were harassing. He carried a notebook with him to document the events. The FTOs learned of the notes on February 19, 2009, and took the notebook from him. They gave it back to him and stated to Complainant that if he dedicated as much time on the training material, he would be doing better.
The AJ also determined that the FTOs did not provide Complainant with enough time to complete tests. For example, on February 18, 2009, FTO SS only provided Complainant with 46 minutes of the allocated hour to complete a test. When Complainant asked why he was not given the full hour, the FTO SS remarked loudly that the rest of the class had finished in between 30 to 45 minutes. Complainant also testified that FTO JZ refused to answer his questions and expressed frustration with him, which was witnessed by other FTOs and the SL Supervisor.
The AJ determined that Complainant informed the Patrol-Agent-in-Charge ("PAIC") of the harassment on February 26, 2009. He provided the PAIC with a copy of the informal EEO complaint raising his claims of harassment and his requests for reasonable accommodation. There is no evidence that the PAIC addressed the matter by separating Complainant from the alleged harassers or conducting an immediate inquiry into Complainant's allegations. The FTOs continued to subject Complainant to harassment because of his learning disability, as well as for writing notes regarding incidents he felt were harassing. On March 30, 2009, FTO VA told Complainant that he was "wasting the government's time" and that he was not qualified to be a Border Patrol Agent. This event was witnessed by FTOs, the SL Supervisor and other trainees. Complainant continued to inform management of the harassment and requested a reassignment away from his work station due to the hostile work environment. On April 7, 2009, FTO JM asked when Complainant was going to process the information and suggested that he would in, "6 or 7 years?" These types of events continued until Complainant's termination in July 2009.
The record also indicates that on February 20, 2009, Complainant contacted an Agency EEO Counselor alleging harassment and indicating the need for reasonable accommodation. During the meeting, Complainant informed the EEO Office of 24 events which he believed constituted a hostile work environment. He also stated that the harassment was making it impossible for him to complete the training due to his disability. After the meeting, Complainant indicated that FTO SS informed the training class that he had beaten prior EEO grievances and would continue to do so.
Subsequent to the EEO meeting, on February 21, 2009, Complainant provided management with a written request for reasonable accommodations. Essentially, he asked for one-on-one time with a mentor and to be allowed to take time with material at his own pace.
The EEO Manager sent a letter and the position description for the Border Patrol Agent Trainee/Intern position to a Psychologist. In response to the Agency's letter, the Psychologist diagnosed Complainant's cognitive impairment/learning disability as involving reading and a slow rate of work and weak short term auditory memory. She indicated that Complainant's impairment affects him in the major life activities of reading, writing, concentrating/focusing in noisy environments, thinking/learning, and in the rate at which he can perform certain work. She found that Complainant could perform the essential job duties listed in the Border Patrol Agent Trainee/Intern job description with the following accommodations: time and a half on tests; testing in a separate, quiet room; use of a dictionary and/or electronic speller; use of a calculator; and use of a screen reading program and voice activated word processing. The EEO Manager followed up with the Psychiatrist asking her if she believed that Complainant, in performing his duties, would present a risk of harm to self or others. The Psychiatrist said, "No."
On or about March 1, 2009, Complainant was promoted for a grade 5 to a grade 7 Border Patrol Trainee/Intern. The promotion required supervisory approval certifying that he met all qualifications and time-in-grade requirements.
In early April 2009, the Psychiatrist conducted a full psycho-educational testing and evaluation of Complainant. On April 6, 2009, Complainant met with the EEO Manager and other managers regarding his request for reasonable accommodations. The Psychiatrist's report was presented to Complainant on April 14, 2009, and then to the Agency on April 22, 2009. She indicated that the following accommodations would enable Complainant to perform his Border Patrol Intern position: time and a half on all in-class and standardized tests; testing in a separate, quiet room to minimize outside noises and improve Complainant's focus; use of a dictionary; use of a calculator; use of a voice-activated word processing program to generate reports; and use of books-on-tape or a screen reading program for textbooks.
Based on this medical information, the Agency' EEO Manager recommended that management grant Complainant's requested accommodations. On May 1, 2009, the EEO Manager met with Complainant's management to discuss the request further regarding field components of his internship training. Management discussed with the Job Accommodation Network representative about whether they could request a fitness-for-duty examination to determine if Complainant could safely perform the full duties of the journeyman Border Patrol Agent position. The EEO Manager contacted the Psychiatrist to get clarification regarding the voice-activated word processing program and the screen reading program. She responded with clarification on June 9, 2009.
In May 2009, management continued to ask Complainant for additional medical documentation despite the information already provided to the EEO Manager. Further, Complainant experienced further animosity on the part of the FTOs and he reported this to the EEO Manager. The AJ found, based on the record and evidence, that the Agency never officially approved or denied Complainant's accommodation requests prior to his termination. The AJ also held that management sporadically provided some, but not all, of the requested accommodations, and not on a consistent basis.
On May 25, 2009, the PAIC drafted a termination recommendation memo to remove Complainant from the Agency. He indicated that he based his decision on the Field Observation Reports completed by the FTOs from February 20, 2009 and May 12, 2009. The AJ noted that during this time, the Agency was still working on Complainant's accommodation requests and had not begun providing any accommodations. The AJ found that the comments in the May 25, 2009 memo contradicted the statements by the Psychiatrist regarding his safety and the Agency did not send him to a fitness-for-duty test. The AJ noted that the FTO reports were neither provided in the Agency's investigation nor were they received as evidence at the hearing.
Complainant continued to work from May 25, 2009 to July 28, 2009. FTO FM noted that Complainant was granted some of the testing accommodations and scored better on his tests than some of his co-trainees. He testified that Complainant received a "novice" overall rating during the six weeks prior to Complainant's termination and showed improvements. FTO JZ also noted Complainant's "novice" rating which is the minimum rating required to receive a recommendation for retention. On July 14, 2009, the SL Supervisor indicated that Complainant was informed that he would be moving to the next phase of the Border Patrol Intern training on August 2, 2009.
However, Complainant was terminated on July 28, 2009 by the Deputy Chief Patrol Agent ("DCPA"). The termination notice stated that the FTOs indicated that Complainant "[did] not possess the confidence, demeanor, and motivation required of a law enforcement officer. This dangerous combination has the potential to get another person seriously injured."
Following his termination, Complainant alleged that he was subjected to a hostile work environment on July 28, 2009. Management directed four FTOs to accompany Complainant to his home to retrieve property issued to Complainant in his position. The FTOs parked in their government-licensed vehicle across the street from Complainant's home as he gathered items and brought them to the vehicle. For over 45 minutes, the FTOs stayed in the car as Complainant gathered items and took them to the car. The record shows that once when Complainant approached the vehicle, FTO JZ said to the other FTOs, "watch your back," as if their safety was threatened by Complainant. The PAIC testified he was unsure of why four FTOs went to Complainant's house and that two would have been enough.
By letter dated July 30, 2009, the EEO Manager sent Complainant a letter notifying him that due to the change in his employment status, his reasonable accommodation request was considered "closed."
Based on these findings of facts, the AJ issued her decision finding discrimination. Turing to Complainant's harassment claim the AJ, following the hearing and based on the evidence before her, determined that Complainant established that the approximately 25 harassing events occurred as he alleged. The AJ also determined that the conduct was unwelcomed and occurred due to his disability. The FTOs and management made comments about his disability in front of Complainant and the class of interns. They disparaged his work ethic and persistently encouraged Complainant to quit. Management took Complainant's need for accommodation and made it the topic of jokes and mean-spirited comments. These persistent events caused by the FTOs and Management over six months were sufficient to create a hostile work environment for Complainant. The AJ concluded that the Agency was liable for the harassment as these actions were taken by supervisors2 and managers.
The AJ then turned to Complainant's claim of discrimination based on his disability with respect to the failure to accommodate, termination and post-termination actions. The AJ found that Complainant was an individual with a disability covered under the Rehabilitation Act. Further, the AJ noted that the record indicated that in March 2009, Complainant was promoted from the GL-1896-05 to the GL-1896-07, received a "novice" rating of record, and was informed that he would be moving to the next phase of training on August 2, 2009. Based on the evidence of the record, the AJ concluded that Complainant was qualified for his Border Patrol Trainee/Intern position. The AJ indicated that Complainant need not show that he was qualified for the Border Patrol Agent position, but the trainee position. As such, the AJ found that Complainant was a qualified individual with a disability.
Turning to Complainant's claim of denial of reasonable accommodation, the AJ noted that Complainant made his requests on February 21, 2009, April 6, 2009, April 22, 2009, and June 9, 2009. These requests were made along with supporting information from the Psychiatrist, who provided that Agency with a list of accommodations that would allow Complainant to successfully perform the duties and training of his Border Patrol Trainee/Intern position. The AJ held that the Agency failed to properly respond to Complainant's repeated requests and did not explain the delay in providing Complainant with the requested accommodations. Further, to the extent the Agency asserted that it provided Complainant with some of the requested accommodations, the AJ found that the accommodations were only provided on an interim basis commencing on May 12, 2009. The Agency did not, for example, ever provide the screen reading program or the use of a voice-activated word processing program as suggested by the Psychiatrist. In addition, the Agency never provided information about the field training components to the Psychiatrist to explore possible accommodations for these components of the training.
Based on the record, the AJ concluded that the Agency violated the Rehabilitation Act by failing to provide Complainant with the accommodations he requested. Further, the Agency terminated Complainant while the accommodation requests were pending which the AJ determined was a violation of the Rehabilitation Act.
The AJ analyzed Complainant's claim of retaliation regarding the denial of reasonable accommodation, the termination, the events following the termination. The AJ found that Complainant engaged in several protected events including engaging in EEO activity, including alleging harassment, and requesting reasonable accommodation. Management was aware of these activities. The alleged events occurred within the same time Complainant engaged in protected activity. As such, the AJ found that Complainant established a prima facie case of unlawful retaliation. The AJ turned to the Agency to provide legitimate, nondiscriminatory reasons for its actions. As for the termination, the Agency indicated that Complainant was terminated because of the FTOs indication that Complainant could not pass the requirements of a law enforcement officer and had the potential to cause serious injury to others. The Agency denied Complainant's reasonable accommodations due to the termination. Finally, the Agency provided no reason for sending four FTOs to Complainant's house to retrieve government property. The PAIC averred that two agents would have done the job. The AJ held that the Agency failed to provide a reason for its action with respect to the post-termination event. The AJ then turned to Complainant to show that the Agency's reasons for the termination and denial of reasonable accommodation were pretext for discrimination. The AJ noted that she previously found that the denial of Complainant's requests for reasonable accommodation was not for legitimate reasons. Further, as to the termination, the AJ indicated that reasons for the termination were not legitimate. The AJ held that the Agency's safety concerns were unworthy of belief. As such, the AJ concluded that Complainant was subjected to unlawful retaliation when he was denied reasonable accommodations, terminated, and subjected to the post-termination incident.
The AJ determined the appropriate remedies to award Complainant. Complainant submitted his claim for compensatory damages. Complainant sought an award of $125,000.00 in non-pecuniary damages. The AJ noted that Complainant provided no medical documentation, but did testify at the hearing and provided an affidavit in support for his claim. Based on the discrimination, Complainant indicated that he "changed as a person." He had trouble sleeping, and testified that when he slept, he dreamt of work and would wake up in a cold sweat. Complainant also asserted that he was stressed out all the time causing rapid heart rate and he had to learn deep breathing techniques to calm down. He noted that he had difficulty eating. He also noted a change in his personality and felt no desire to speak with anyone close to him. Complainant also stated that his treatment by management caused him to lose his self esteem and confidence. Based on the severity of the harm suffered and its duration, the AJ awarded Complainant $52,250 in non-pecuniary compensatory damages for pain and suffering. The AJ noted this amount followed a five-percent reduction due to Complainant's account of other non-employment factors that contributed in small portion to Complainant's mental and emotional harm.
Complainant's attorney (Attorney) submitted a petition for fees and costs seeking 25.25 hours at a rate of $375.00 per hour and 61 hours at a rate of $400.00 per hour. In addition, the Attorney sought a 50% increase for "exceptional success" achieved by Complainant. The Agency opposed the increase. The AJ denied the increase, but allowed for the fees submitted by the Attorney at the rates requested. In addition, the Attorney submitted costs for litigation in the amount of $1,854. The AJ found that the Attorney supported his expenses, including the costs of the Psychologist who provided services to Complainant.
The Agency subsequently issued a final order rejecting the AJ's findings of discrimination and retaliation, as well as the relief awarded. At the same time, the Agency filed the instant appeal.
In brief, on appeal, the Agency argued that the AJ improperly concluded that the FTOs were Complainant's de facto supervisors and so used the wrong standard for finding it was liable for the harassment. In addition, the Agency claimed that Complainant was not qualified for the Border Patrol Agent position and therefore, not covered by the Rehabilitation Act. The Agency asserted that Complainant did not establish pretext regarding the termination or the retrieval of items from Complainant's home; it provided Complainant with the requested reasonable accommodations; Complainant constituted a direct threat to himself; and he was not subjected to a hostile work environment. Finally, the Agency challenged the AJ's award of compensatory damages and front pay.
Complainant responded to the Agency's appeal requesting that the Commission affirm the AJ's finding of discrimination and award of remedies.
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).
Reasonable Accommodation and Termination
Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. � 1630.9. We note that the AJ held that Complainant is an individual with a disability covered under the Rehabilitation Act. The Agency did not contest the AJ's finding and we determine there is no challenge to the AJ's determination.
Complainant also must show that he is a "qualified" individual with a disability within the meaning of 29 C.F.R. � 1630.2(m). We note that the discussion of "qualified" does not end at complainant's position. The term "qualified individual with a disability," with respect to employment, is defined as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. � 1630.2(m).
The Agency argued that Complainant could not perform the functions of a Border Patrol Agent. The Commission is not persuaded by the Agency's argument noting that the position Complainant encumbered was a Border Patrol Trainee/Intern position. See Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 432 (6th Cir. 2012) (finding that the ADA protects individuals from discrimination that could deny them the means to obtain qualifications necessary to undertake that position). The AJ correctly indicated that Complainant had been promoted within his Trainee/Intern position in May 2009. Further, he had obtained the level of "novice" and had been scheduled to continue to the next level of his training in August 2009. In addition, the AJ noted that when Complainant had been provided with the requested accommodations, he had passed his tests and sometimes scored higher than his co-interns. Therefore, we find that the record supports the AJ's determination that Complainant was qualified for the position he occupied and was terminated from.
While the Agency argues to the contrary, the record supports that AJ's determination that it failed to provide Complainant with effective accommodations to his disability in response to his multiple requests. The record clearly demonstrates that Complainant had requested reasonable accommodations starting in February 2009. Complainant provided ample medical support for his requests and the EEO Manager engaged with the Psychiatrist to identify reasonable accommodations which would allow him to perform the essential functions of his Border Patrol Trainee/Intern position. However, the evidence shows that, at best, Complainant was provided with some of the requested accommodations on an inconsistent basis. It is noted that when his requests were provided, in May and June 2009, Complainant performed better.
The Agency also argued on appeal that it engaged in good faith effort to provide Complainant with reasonable accommodations. However, we are not persuaded by the Agency. The record supports the AJ's finding that the Agency never fully implemented the accommodations requested. In fact, when management finally began to provide Complainant with some of the reasonable accommodations, it also began the process to terminate Complainant. Following the termination, Complainant was informed that his requests for reasonable accommodations were closed by the EEO Manager. Based on the AJ's findings and conclusions and our review of the record, we conclude that Complainant was denied reasonable accommodations and terminated in violation of the Rehabilitation Act.3
The Agency argued that Complainant was a direct threat. A person is a "direct threat" if he or she poses a significant risk of substantial harm to the health or safety of him or herself or others which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. 29 C.F.R. � 1630.2(r). The "direct threat" evaluation must be based on an individualized assessment of the individual's present ability to perform the essential functions of the job. Id. In the instant matter, the Agency must demonstrate that its decision to terminate Complainant was because his disability posed a direct threat to himself and others. Therefore, we must analyze whether the Agency has satisfied its burden of proof to establish that Complainant posed a direct threat to safety. See Spencer v. Dep't of Treasury, EEOC Appeal No. 07A10035 (May 6, 2003).
Such a finding must be based on an individualized assessment of the individual that takes into account: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm, 29 C.F.R. � 1630.2(r). See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002); Cook v. State of RI, Dep't of Mental Health Retardation and Hosp., 10 F.3d 17 (1st Cir. 1993). A determination of significant risk cannot be based merely on an employer's subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports. Rather, the Agency must gather information and base its decision on substantial information regarding the individual's work and medical history. Chevron U.S.A. Inc. v. Echazabal, supra; Harrison v. Dep't of Justice, EEOC Appeal No. 01A03948 (July 30, 2003).
On appeal, the Agency argued that the AJ failed to properly analyze the assertion that Complainant posed a direct threat. The Agency focused on the "unique position" of the Border Patrol Agent and the hazardous nature of the position. The Agency claimed that the medical reports cannot be used alone to determine if Complainant posed a direct threat and noted that Complainant could only achieve the status of "novice" at the time of his termination. Upon review of the record, we find that substantial evidence of the record does not support the Agency's claim that Complainant posed a direct threat to himself or others. The Psychiatrist specifically addressed the issue of whether Complainant constituted a threat to himself or others and stated an emphatic, "No." The Agency contemplated sending Complainant for a fitness-for-duty examination, but failed to do so. The only medical evidence in the record did not support the Agency's assertions. Furthermore, once Complainant was provided with some of the reasonable accommodations he requested, he achieved the level of "novice." In addition, as noted above, Complainant was a Border Patrol Agent Trainee/Intern, not a Border Patrol Agent. Clearly, the Agency's determination is solely based on its subjective evaluation of a different position and failed to take into account any of the Psychiatrist's information. As such, we find that the Agency failed to support its assertion that Complainant posed a direct threat.
Harassment
Complainant alleged that he was subjected to harassment from February 2009 until after his termination on July 28, 2009 based on his disability and protected EEO activity. It is well-settled that harassment based on an individual's disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he is a qualified individual with a disability covered under the Rehabilitation Act and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct; (3) the harassment complained of was based on his disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). 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 (March 8, 1994).
As to part (1), as noted above, we have no reason to challenge the AJ's finding that Complainant is an individual with a disability. Further, as stated above, we have already determined that the AJ correctly found that Complainant was qualified for his position. The conduct was clearly unwelcomed and Complainant established part (2) of his prima facie case of harassment. Further, the harassment complained of was clearly based on Complainant's disability and his engaging in protected EEO activity. We note that the comments made by the SL Supervisor and the FTOs clearly indicated that the actions were related to his disability and his request for reasonable accommodation based on his disability.4 Furthermore, the events occurred close in time to Complainant's contact with the EEO office and his complaints to upper management about the hostile work environment. In addition, FTOs showed disdain for his protected activity by making comments about beating prior EEO complaints and his notebook documenting the harassment. Therefore, we find that Complainant has established part (3) of his prima facie case of harassment. Turning to part (4), we find that the record supports the AJ determination that Complainant was subjected to events from February 2009 to his termination on July 28, 2009, which created a hostile work environment.
As to part (5), we note that on appeal, the Agency argued that the AJ used the wrong standard for employer liability. The Agency argued that the actions were taken by the FTOs who were not the Complainant's supervisors. The standard for employer liability for hostile work environment harassment depends typically on whether or not the harasser is the victim's supervisor. An employer is vicariously liable for a hostile work environment created by a supervisor. In Vance v. Ball State Univ., 133 S. Ct. 2434 (2013), the Supreme Court held that an employee is a "supervisor" if the employer has empowered that employee "to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" The Court stated that an employer is liable for hostile work environment harassment by employees who are not supervisors if the employer was "negligent in failing to prevent harassment from taking place." In assessing such negligence, the Court explained, "the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent." Also relevant is "[e]vidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed." See Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, "Notice Concerning the Supreme Court's Decision in Vance v. Ball State University" (June 18, 1999).
The Agency's appeal focused on the events created by the FTOs. However, we find that this would be an incomplete view of Complainant's claim of harassment beginning in February 2009. We note that the SL Supervisor also engaged in ridiculing, humiliating Complainant. Furthermore, it was the SL Supervisor who recommended Complainant for termination and Management that sent the FTOs to Complainant's house to intimidate him. Therefore, we are not persuaded by the Agency's assertion that Vance applies in this situation. As such, Complainant has met part (5) of his prima facie case of harassment for the acts were committed in part by the SL Supervisor. An employer is subject to vicarious liability for unlawful harassment if the harassment was "created by a supervisor with immediate . . . authority over the [Complainant]." Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) ("Vicarious Liability Guidance"), at 4 (citing Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 , 118 S.Ct. 2257, 2270 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998)). Accordingly, the Commission concludes that Complainant has met his burden of establishing a prima facie case of harassment based on disability and his prior protected EEO activity.
In addition, for sake of argument, we shall assume that the FTOs are not considered supervisors under Vance. Under this scenario, the Agency can make out an affirmative defense by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Vicarious Liability Guidance, at 12. Whether an employer can prove the first prong of that defense, i.e., that it exercised reasonable care to prevent and correct promptly any harassing behavior, depends on the circumstances of the particular situation. Vicarious Liability Guidance, at 15.
At a minimum, however, the employer must have a policy and complaint procedure against the harassment that contains the following elements: (1) a clear explanation of what constitutes prohibited conduct; (2) assurances that employees who bring complaints of harassment or provide information related to such complaints will be protected against retaliation; (3) a clearly described complaint process that provides possible avenues of complaint; (4) assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; (5) a complaint process that provides a prompt, thorough, and impartial investigation; and (6) assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred. Id. at 17.
Based on the findings by the AJ and a review of the record, we determine that the Agency failed to make out its affirmative defense. The record clearly indicated that Complainant made upper management aware of the hostile work environment several times starting in February 2009. The Agency failed to take any corrective action and the harassment continued even after his termination on July 29, 2009. Accordingly, because the Agency has not satisfied the affirmative defense, the Commission finds that the AJ properly concluded that the Agency is liable for the harassment of Complainant.
Compensatory Damages
Finding that the AJ correctly determined that Complainant was subjected to harassment, denial of reasonable accommodation and discrimination, we turn to the AJ's award of remedies, including the award of compensatory damages. Pursuant to section 102(a) of the Civil Rights Act of 1991, Complainant who establishes his claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. � 1981a(b)(3). For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14.
In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
On appeal, Complainant asked that the Commission affirm the AJ's decision regarding the award of compensatory damages. The Agency argued that assuming the finding of discrimination is made against it, Complainant failed to establish he suffered any harm as a result of the alleged discrimination. The Agency noted that Complainant failed to provide medical evidence to support his assertion. Further the Agency believed that figure of $52,250 in damages is not supported nor the cases cited by the AJ are arbitrary. The Agency claimed that an award in the range of $10,000.00 is more appropriate in a case in which Complainant failed to provide medical evidence to support his claims.
Taking into account the evidence of non-pecuniary damages submitted by Complainant, we find that the AJ's award of $52,250 was reasonable and supported by the evidence. This includes the reduction indicated by the AJ noting that some of Complainant's emotional harm was a result of non-EEO matters. This award takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See Quick v. Dep't of Veterans Affairs, EEOC Appeal No. 01A13884 (Sept. 4, 2003) (awarding $75,000 to Complainant who was denied reasonable accommodation and terminated from a temporary position noting that other events occurred following his termination such as the loss of custody of his children following the termination); Hicks v. U.S. Postal Serv., EEOC Appeal No. 07A10020 (Sept. 6, 2003) (awarding $70,000 to a Complainant who was wrongfully terminated based on disability and he went from being optimistic to being sad, bitter, depressed, and withdrawn); Day v. U.S. Postal Serv., EEOC Appeal No. 07A10079 (Nov. 2, 2001) (providing $80,000 to Complainant who had a job offer withdrawn in violation of the Rehabilitation Act who, due to discrimination, experienced including sleeplessness, impotence, inability to communicate with family, feelings of abandonment, anxiety, humiliation, depression, anger, loss of self-worth, feelings of worthlessness, lack of motivation, suicidal thoughts, and weight loss). As such, we affirm the AJ's award of compensatory damages.
Attorney's Fees and Costs
By federal regulation, the Agency is required to award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. � 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983).
There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency. 29 C.F.R. � 1614.501(e)(2)(ii)(B). The circumstances under which the lodestar may be adjusted are extremely limited, and are set forth in Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 11-7. (Nov. 9, 1999). A fee award may be reduced: in cases of limited success; where the quality of representation was poor; the attorney's conduct resulted in undue delay or obstruction of the process; or where settlement likely could have been reached much earlier, but for the attorney's conduct. Id. The party seeking to adjust the lodestar, either up or down, has the burden of justifying the deviation. Id. at p. 11-8.
The Agency failed to address the AJ's award of fees and costs to the Attorney. Complainant did not challenge the AJ's award. We discern no basis to modify the AJ's determination regarding fees and costs awarded to the Attorney.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final action and REMAND the matter in accordance with the ORDER below.
ORDER (D0610)
The Agency is ordered to take the following remedial action within sixty (60) days of the date this decision becomes final:
I. The Agency shall reinstate Complainant to his Border Patrol Trainee/Intern position with credit for successfully completing the Border Patrol Academy phase of training. Complainant shall be assigned another unit than the one where the discrimination occurred unless Complainant wants to return to his previous unit. Complainant may also request placement in another geographic location if he wishes to avoid all contact with the management involved in his complaint.
II. The Agency shall remove any and all references to his removal from his personnel records.
III. Prior to returning to his position, the Agency shall engage with Complainant to determine what reasonable accommodations are necessary to perform the essential functions of his position, including all field training. Reasonable accommodations shall be provided promptly and throughout the training on a consistent basis.
IV. The Agency shall determine the appropriate amount of back pay (including expected pay increases), with interest, and other benefits (including lost leave, TSP contributions, etc.) due Complainant, pursuant to 29 C.F.R. � 1614.501, calculated from the date of his termination through the date he is reinstated (or declines reinstatement) to his Border Patrol Trainee/Intern position. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
V. Complainant shall be paid an amount to compensate him for the tax consequences, if any, of a lump-sum wage payment according to proof to be provided by Complainant.
VI. The Agency is directed to conduct training for the SL Supervisor and the FTOs who was found to have violated the Rehabilitation Act as well as all management officials at the facility. The Agency shall address these employees' responsibilities with respect to reasonable accommodation requests, harassment, and retaliation.
VII. The Agency shall consider taking disciplinary action against the SL Supervisor and the FTOs. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
VIII. The Agency shall pay Complainant $52,250 in compensatory damages.
IX. The Agency shall pay Complainant $33,868.75 for Attorney's fees and $1,854.00 in litigation costs.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
INTERIM RELIEF (F0610)
When the Agency requests reconsideration and the case involves a finding of discrimination regarding a removal, separation, or suspension continuing beyond the date of the request for reconsideration, and when the decision orders retroactive restoration, the Agency shall comply with the decision to the extent of the temporary or conditional restoration of the Complainant to duty status in the position specified by the Commission, pending the outcome of the Agency request for reconsideration. See 29 C.F.R. � 1614.502(b).
The Agency shall notify the Commission and the Complainant in writing at the same time it requests reconsideration that the relief it provides is temporary or conditional and, if applicable, that it will delay the payment of any amounts owed but will pay interest from the date of the original appellate decision until payment is made. Failure of the Agency to provide notification will result in the dismissal of the Agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0914)
The Agency is ordered to post at its San Diego, California 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)), he 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 tends 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
August 19, 2015
__________________
Date
1 The AJ found that the events at Complainant's home on July 28, 2009, were unlawful as retaliatory, but did not result from disability discrimination.
2 The AJ determined that the FTOs were Complainant's de facto supervisors who had significant role in critiquing his work and in the decision to terminate his employment.
3 Since the Commission affirms the AJ's finding that the Agency's denial of reasonable accommodation and termination constituted violations of the Rehabilitation Act, we need not address Complainant's claim that these actions were also motivated by retaliatory animus as well.
4 A request for reasonable accommodation constitutes protected activity. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 � 8-II.B.2 (May 20, 1998).
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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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