0720120040
08-27-2013
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0720120040
Hearing No. 430-2011-00114X
Agency No. ARJACKSON09JUL03325
DECISION
Following its September 4, 2012, 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Assistant in the Agency's Directorate of Human Resources, located at Fort Jackson, South Carolina.
On September 8, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when she was subjected to a series of incidents, including the receipt of an unfair Letter of Reprimand for violation of the leave policy and an increase in her workload.
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 an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on March 21, 2012, and issued a decision on July 18, 2012. The AJ found that Complainant established that she was subjected to retaliation for her prior protected EEO activities when she was given a Letter of Reprimand for violating the leave policy, when her work assignments were increased, and when her leave and work were scrutinized after she filed a previous EEO complaint. The AJ also found that the supervisor's statement that Complainant must use annual leave to file an EEO complaint would be reasonably likely to deter Complainant or others from engaging in the EEO process.
The AJ awarded Complainant $16,000 in compensatory damages, ordered the Agency to provide 10 (ten) hours of EEO training to each responsible management official, and ordered the Agency to remove Complainant from her current chain of command because her relationship with her supervisors and coworkers are severely compromised.
The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. The Agency simultaneously filed this appeal.
CONTENTIONS ON APPEAL
In support of its appeal, the Agency contends that the AJ's finding of retaliation is not supported by substantial evidence in the record. The Agency contends that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not establish that those reasons were pretext for discrimination. The Agency further contends that if the AJ's finding of reprisal discrimination is upheld, the AJ's order of relief goes beyond a make whole remedy and is not supported by substantial evidence.
Complainant did not offer any contentions in opposition to the appeal.
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).
Reprisal
Complainant alleged that she was subjected to retaliation after she participated in protected activity. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment1 by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). Once Complainant establishes a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, the Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Here, Complainant engaged in protected EEO activity when she filed numerous EEO complaints, the most recent on April 28, 2009. Further, Complainant's management officials were aware of her protected activity, and she was subjected to adverse actions when she was given increased assignments and issued discipline for violating the Agency's leave policy. Additionally, the most recent previous EEO complaint was being processed while these adverse actions occurred, and as a result Complainant established that a temporal nexus existed. Therefore, we agree with the AJ that Complainant established her prima facie case of retaliation for prior protected EEO activity.
Next, the Agency must articulate a legitimate, nondiscriminatory reason for its actions. The Agency asserted that Complainant was not discriminated against when she was assigned duties because those duties were part of her position description. Additionally, the Agency asserted that disciplining Complainant was appropriate because she violated the Agency's leave program when she did not request leave for her absences.
In the final step in the analysis, the inquiry moves to a consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail on her claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus towards Complainant because of her prior protected EEO activity.
The AJ found that Complainant established that the Agency's reasons for giving her increased duties were pretext for discrimination. The record establishes that after Complainant filed her previous EEO complaint, her supervisors (including her team lead) increased her work load.2 On appeal the Agency asserts that this was not evidence of retaliation because the duties she was assigned were part of her job description. However, the record supports the AJ's conclusions that this was retaliatory not necessarily because she was given duties outside of her position description, but because the volume of her work duties increased after she filed an EEO complaint, she was given short deadlines to complete her work, she was denied the assistance of her coworkers, and she was given assignments while she was in training or assisting a soldier which made it difficult for her to complete the assignments in a timely manner. The record makes it clear that there is a correlation between her increase in workload and her prior protected EEO activity.
The AJ found that Complainant established that the Agency's reasons for disciplining her for violating the leave policy were pretext for discrimination. The record establishes on July 21, 2010, Complainant was issued a Letter of Reprimand (LOR) for failing to call in to request leave when she was out sick in January 27 through February 2, 2010. The record contains an email that Complainant sent to her supervisor on January 26, 2010, in which she informed her supervisor that she would be having a medical procedure the next day and will be out for the rest of the week and will return when she is approved to return to work by her doctor. Complainant returned to work on February 3, 2010, and submitted her leave paperwork around noon that day. The AJ found it suspicious that the Agency did not issue the LOR until six months after the incident and soon after she engaged in prior protected EEO activity. Additionally, the record supports the AJ's finding that the management officials did not discipline other employees for similar incidents related to leave.
The AJ stated that based upon a close examination of the responsible management official's tone, demeanor, and disposition he determined that their testimony lacked credibility because it "strained credulity, was implausible, and contradicted the written record." There is nothing in the record that justifies the second guessing of the AJ's credibility determination.
Additionally, we note that it is troubling that Complainant's supervisor instructed Complainant that she would need to take annual leave to file an EEO complaint. While the Agency asserts on appeal that this would not have a chilling effect on the EEO process because ultimately Complainant was not required to use leave, we find that the comment itself would have an obvious chilling effect on the EEO process and reasonably would deter Complainant and others from engaging in protected EEO activity. As a result, we find that Complainant established that she was subjected to reprisal.
Relief
The Agency contends that the AJ's ordered relief goes beyond make whole relief. The concept of make whole relief was enunciated by the Supreme Court in Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), as that relief which would place the Complainant, as nearly as possible, in the position he or she would have occupied but for the alleged discrimination.
1. Compensatory damages
The Agency asserts that the Agency's compensatory damages award of $16,000 is not supported by the record. In a claim for compensatory damages, a Complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm suffered; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (hereafter referred to as "Notice"); Carpenter v. Dep't of Agriculture, EEOC Appeal No, 01945652 (July 17, 1995). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from the Complainant and others, including family members, co-workers, and medical professionals. See Notice at 11-14; Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. A proper award should take into account the severity of the harm and the length of time that the injured party suffered the harm. See Carpenter, supra. Additionally, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. United States Postal Service, EEOC Appeal No. 01972555 (April 15, 1999), citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989). Finally, we note that in determining non-pecuniary compensatory damages, the Commission has also taken into consideration the nature of the Agency's discriminatory actions. See Utt v. United States Postal Service, EEOC Appeal No. 0720070001 (March 26, 2009); Brown-Fleming v. Dep't of Justice, EEOC Appeal No. 0120082667 (October 28, 2010).
We note that in support of her claim for compensatory damages, Complainant only offered her testimony and did not provide medical documentation or testimony from her family or friends. Complainant stated that the discrimination had both mental and physical effects on her. Hearing Transcript (HT) at 310. Complainant stated that she has been diagnosed with depression and has been prescribed medication for her condition since 2009 up until the hearing in 2012. Id. at 311. Complainant also described feelings of stress and being overwhelmed because of the discrimination. Id. at 317. With regard to physical effects, Complainant stated that she gets headaches, has a hard time sleeping, has an upset stomach, and she cannot concentrate at work. Id. at 310 - 317. The AJ found her testimony to be credible, and there is nothing in the record that would justify second guessing his credibility determination.
After careful consideration of the evidence of record, we find the AJ's award of $16,000 for non-pecuniary compensatory damages is appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Bustamante v. U.S. Postal Service, EEOC Appeal No. 0120120185 (March 14, 2013) (An award of $18,000 for compensatory damages is appropriate where discrimination caused Complainant to suffer from depression, and he did not provide medical documentation or testimony from friends or family); Page-Sanchez v. U.S. Postal Service, EEOC Appeal no. 0720050080 (June 12, 2007) (An award of $15,000 is appropriate where an AJ found that Complainant credibly testified that the discrimination caused her to seek counseling, feel sad, and have disturbed sleep); Olsen v. Dep't of Defense, EEOC Appeal No. 01966077 (July 29, 1998) (An award of $16,000 is appropriate where reprisal caused Complainant to seek out a counselor because of stress, anxiety, and depression). Accordingly, we conclude that an award of $16,000 will adequately compensate Complainant for the physical and emotional harm she suffered as a result of the discrimination.
2. Other Equitable Relief
The Agency also contends that the AJ provided more than make-whole relief when he ordered that the Agency remove Complainant from her existing chain of command and give Complainant the option to transfer to a different geographical duty location outside the command structure of Fort Jackson or to transfer to another department within the command structure of Fort Jackson.
As an initial matter, we note that Complainant stated during the hearing that she would like to be transferred to a position outside of Fort Jackson. A review of the record supports the AJ's ordered relief of a transfer. The record establishes that Complainant has filed numerous EEO complaints, and as a result the management officials at Fort Jackson and her coworkers have begun to respond to her out of reprisal for her protected EEO activities. We agree with the AJ when he stated that this case is "a clear example of responsible management officials retaliating against an employee who serially engaged in protected activity." The evidence in the record supports the AJ's determination that Complainant's relationships with her supervisors and coworkers are severely compromised to the extent that her continued presence will likely cause the relationships to continue to deteriorate. As a result, we find that this relief is appropriate.
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 order, and ORDER the Agency to comply with the order below.
ORDER
The Agency is ordered to take the following actions:
1. The Agency shall immediately take corrective and preventative measures to ensure that retaliation against Complainant and against any other employee will not occur.
2. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency will pay Complainant $16,000 in compensatory damages.
3. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency will expunge Complainant's record of the Letter of Reprimand (LOR) at issue in this complaint.
4. The Agency shall immediately remove Complainant from the existing chain of command. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall give Complainant the option to: 1) transfer to a substantially similar vacant position in a different duty location outside of the command structure of Fort Jackson, or 2) transfer to a substantially similar vacant position in another department within the command structure of Fort Jackson. In consultation with Complainant regarding a geographical transfer location, the Agency shall provide Complainant with a list containing both geographical locations and vacant positions similarly situated to her human resource assistant position. Thereafter, Complainant shall have fourteen (14) days to indicate in writing to the Agency three positions that she is amenable to transferring to. In the event that Complainant does not accept any of the potential transfer positions, she may identify a similarly situated position within Fort Jackson to transfer into after consultation with the Agency. If Complainant transfers to a duty location other than Fort Jackson, the Agency shall be held responsible for all relocation expenses associated with her transfer.
5. Within 120 (one hundred twenty) days of the date this decision becomes final, the Agency shall provide at least sixteen (16) hours of live comprehensive EEO training to the responsible management officials identified in this complaint, with an emphasis on reprisal discrimination.
6. Within 120 (one hundred twenty) calendar days of the date of this decision, the Agency shall consider taking appropriate disciplinary action against the Responsible Management Official. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. 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 for its decision not to impose discipline. If the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates.
7. The Agency shall post the attached notice, as prescribed in the Posting Notice Order below.
Additionally, the Agency shall provide a report of compliance with this order to the Commission's Compliance Office, as described below. Copies must also be sent to Complainant and his representative.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
POSTING ORDER (G0610)
The Agency is ordered to post at its Fort Jackson facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
8/27/2013
__________________
Date
1 The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
2 For example, on July 15, 2009, the team lead threw 15 folders on her desk and told her to file them because the computers were inoperable; on August 17, 2009, her supervisor gave her 93 sets of orders to complete; on September 30, 2009, Complainant was instructed to complete a report while she was attending a mandatory training; on May 4, 2010, she was the only employee working on the OCONUS Team and solely performed the duties without coworker support.
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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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