0720110023
08-01-2013
Complainant, v. Mike Donley, Secretary, Department of the Air Force (National Guard Bureau), Agency.
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force
(National Guard Bureau),
Agency.
Appeal No. 0720110023
Hearing No. 460-2009-00075X
Agency No. T0885TXF0108GH
DECISION
Following its March 7, 2011, 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) relief ordered after a 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. In a cross appeal, Complainant requests that we increase the compensatory damages awarded 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 dual-status Aircraft Mechanic, WG-12, at the Agency's Lackland Air Force Base in San Antonio, Texas. Complainant was the only female Aircraft Mechanic among the 25 flight line crew members. Complainant's dual-status position also required her to be an active member of the National Guard, in which she held the rank of Master Sergeant (MSgt). When Complainant worked one weekend a month, she worked in her capacity as a Guard member. However, when she worked during the weekdays she worked as a federal civilian employee.
On November 13, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and disability (complications from a surgery) when:
1. On June 25, 2007, her supervisor refused to honor her request for light duty, resulting in injuries to her knee and back;
2. On June 26, 2007, her supervisor issued her an annual performance appraisal rating of "fully successful" instead of "outstanding."
Complainant also alleged that she was discriminated against on the bases of sex, physical disability, and in reprisal for filing her EEO complaint when:
3. The Agency failed to timely submit her medical documentation to the Office of Workers' Compensation, causing her to not be paid or to be paid late during an approximately six-week period, and to receive a "Notice of Overpayment" from the Defense Financing and Accounting Service.
After a hearing, an EEOC Administrative Judge (AJ) issued a decision on January 26, 2011, and found that Complainant established that she had been subjected to discrimination on the basis of gender with regard to claims 1 and 2.
Specifically, the AJ found that in March 2006, Complainant had a hysterectomy which resulted in complications, and over the next year Complainant submitted to her supervisor documents from her physician that stated that Complainant needed to be on light duty. Despite being on light duty, Complainant's supervisor continued to assign Complainant full duty work. The AJ found that Complainant credibly testified that when she complained to her supervisor that he was not honoring her light duty request, he responded that "Guys don't have hysterectomies." The AJ found that the supervisor minimized medical conditions that were "female" in nature, and the supervisor honored the light duty requests of male crew members by putting them in sedentary positions, and consistently assigned Complainant to full duty on the flight line despite her medical condition and objections from Complainant and other crew members.
On June 25, 2007, despite Complainant being on light duty, Complainant's supervisor assigned her the full duty task of airplane recovery and tank reconfigurations. As Complainant attempted to remove a ladder leaning against an airplane, she experienced a sudden sharp pain in her back and knee. Complainant's injury was so serious that it caused her to take almost a year of leave, and ultimately she took a medical retirement.
On or around June 26, 2007, Complainant was issued her performance appraisal. Complainant testified that the narrative supporting the appraisal's six elements were identical to her 2005-2006 performance appraisal for which she received an "outstanding." However, this year she received only a "fully successful." Complainant's supervisor told her that he would not give an "outstanding" rating to employees whom he and "the guys" did not respect. The AJ found that Complainant set forth sufficient evidence that established that her "fully successful" performance appraisal was discriminatory on the basis of her sex.
The AJ also found numerous other incidents of gender discrimination, including comments that Complainant's supervisor and other crew members made about Complainant, such as that she was a "lesbian," a "dumb dyke," a "muff diver," a "carpet muncher," "queer," and a "dumb bitch." Witnesses testified that Complainant's supervisor joined in the offensive behavior, laughed at the jokes and comments, and did not admonish the crew members or correct their behavior. Additionally, in the presence of Complainant's supervisor, crew members would make demeaning prank calls to restaurants where other crew members were eating, and have the hostess announce over the intercom a male crew member's name and say "[Complainant] called to say she loves you and misses you."
The AJ found that Complainant did not establish that she was an individual with a disability under the Rehabilitation Act, and therefore did not establish that she was discriminated against on the basis of disability for any of her claims. The AJ also found that Complainant did not establish discrimination for claim 3.
With respect to damages, the AJ found that Complainant was entitled to back pay with interest and benefits for the period between June 25, 2007, and August 26, 2008. The AJ ordered that an amended 2006-2007 performance appraisal be issued and in every instance where the word "excellent" appears, the Agency is to substitute the word "outstanding." The Agency was also ordered to upgrade each element and the overall appraisal to "outstanding."
The AJ found that Complainant established that she was entitled to $92,500 in non-pecuniary compensatory damages for the emotional and physical harm she suffered as a result of the discrimination. The AJ ordered that the Agency pay Complainant $63,675.03 for attorney fees and costs. Finally, the Agency was ordered to provide EEO training, post a notice of discrimination for 12 months, and recommended that the Agency take disciplinary action against Complainant's supervisor. The AJ found that Complainant did not establish that she was entitled to reimbursement for loss of future earning potential.
The Agency subsequently issued a final order rejecting the AJ's decision and appealed to the Commission. The Complainant also filed an appeal of the compensatory damages.
CONTENTIONS ON APPEAL
In support of its appeal, the Agency contends that the Commission does not have jurisdiction over the matter because the personnel actions were military in nature. We note that the Agency does not contest the merits of the AJ's finding of discrimination. In opposition to the Agency's appeal, Complainant asserts that the Commission has jurisdiction over this issue because the discrimination occurred during Complainant's civilian capacity as a dual-status technician.
In a cross appeal, Complainant contends that the non-pecuniary damages of $92,500 was insufficient and significantly lower than awards in similar cases. Complainant also contends that she is entitled to additional equitable relief. We note that Complainant does not contest the AJ's finding that she did not establish that she was an individual with a disability under the Rehabilitation Act, or that she did not establish discrimination with regard to claim 3. In opposition to Complainant's cross appeal, the Agency contends that the AJ's award was sufficient.
ANALYSIS AND FINDINGS
Jurisdiction
The Agency contends on appeal that the Commission does not have jurisdiction over this case because the personnel actions arose from Complainant's military capacity as a dual-status technician, and that military personnel may not bring suit against the government for actions arising during their military duties. See Feres v. United States, 340 U.S. 135, (1950). The Agency asserts that all duties of a dual-status technician are inherently military in nature, and therefore are not within the jurisdiction of the Commission. Additionally, the Agency asserts that the Agency should decide which personnel actions are military in nature and which personnel actions are civilian in nature, and that the Commission should not second guess the Agency's determination.
The National Guards Technicians Act of 1968 coffered upon National Guard technicians a unique "dual-status" in that they are both members of the National Guard as well as civilian federal employees of the Army or Air Force. 32 U.S.C. � 709. The Commission has recognized the unique "dual-status" of technicians in the National Guard, noting that those individuals are considered both uniformed military personnel as well as federal civilian employees. In Dickens v. New Jersey National Guard, Charge No. 031792306 (May 16, 1984), we first addressed whether the Commission has jurisdiction over claims raised by dual-status technicians. We found that dual-status technicians are covered by Section 717 of Title VII when the alleged discriminatory action arises from the individual's capacity as a federal civilian employee. We found that it was necessary for the Commission to review the facts in each case to determine whether the alleged discrimination took place in the context of the individual's capacity as a federal civilian employee or in the capacity of a uniformed member of the military.
Since the Dickens decision, we have analyzed each National Guard dual-status technician complaint on a case-by-case basis to determine whether we have jurisdiction. See Brazill v. National Guard Bureau, EEOC Appeal No. 01891698 (June 22, 1989) (The Commission determined that the allegations that Complainant was not commissioned into the Colorado Army National Guard were strictly military in nature, and therefore were not within the purview of the Commission's regulations); Snyder v. Dep't of Air Force, EEOC Appeal No. 01A23584 (March 26, 2003) (The Commission found that the alleged retaliation affected the dual-status technician in his capacity as a civilian employee because he was denied civilian promotions and assignments and was subjected to harassing remarks and physical threats, and therefore was within the scope of Title VII); Brown v. Dep't of Air Force, EEOC Petition No. 0420050011 (May 16, 2007) (The Commission found that a dual-status technician's challenged action arose from the technician's capacity as a civilian employee when he was reassigned/demoted from one civilian position to another).
Similar to the Commission, most federal courts have found that claims of discrimination from dual-status technicians must be analyzed on a case-by-case basis to determine if the alleged discriminatory act arose in the individual's military capacity or civilian capacity, and that dual-status technicians may bring forth a Title VII claim if the discrimination arose in the technician's civilian capacity. See Norris v. McHugh, 857 F.Supp.2d (M.D. Ala. 2012) (A dual-status military technician may bring suit under Title VII or the ADEA if the court concludes that the claims arose out of the technician's civilian status); Wetherill v. Geren, 616 F.3d 789 (8th Cir. 2010) (The court must determine whether the injury complained of by a dual-status technician arose or occurred in the course of activity incident to military service, and that it is conceivable that a dual-status technician may suffer an injury that is purely civilian in nature to give rise to a justiciable Title VII); Jentoft v. United States, 450 F.3d 1342 (Fed. Cir. 2006) (Congress did not put limits on when a dual-status National Guard technician can be considered a federal civilian employee, and thus dual-status technicians have justiciable claims under the Equal Pay Act); Brown v. United States, 227 F.3d 295 (5th Cir. 2000) (The court must differentiate the civilian and military positions associated with a dual-status technician job, and claims arising purely from a technician's civilian position are cognizable under Title VII); Mier v. Owens, 57 F.3d 747 (9th Cir. 1995) (a dual-status technician who held both a civilian and military positions could maintain a Title VII action if the court determined that the challenged conduct is not integrally related to the military's unique structure).
The Agency asserts that the military and civilian aspects of a dual-status technician's employment are inextricably intertwined, and that even in her civilian capacity, Complainant's employment was inherently military in nature. The Agency asserts that therefore dual-status technicians such as Complainant are barred from bringing a Title VII claim, and the Commission does not have jurisdiction over these claims.
We note that the Agency has not raised any persuasive arguments, Supreme Court cases, or acts of Congress that would cause us to reverse our previous position regarding the Commission's jurisdiction over dual-status technicians' allegations of discrimination in their civilian federal employee capacity. The case-by-case determination of whether a personnel action arose during the dual-status technician's military or civilian capacity is a factual determination that must be made by the Commission for the purpose of deciding whether the Commission has jurisdiction in a particular case. As a result, we will analyze the facts of this case to determine whether Complainant's claim arose in her military capacity or in her civilian federal employee capacity.
A review of the record establishes that the discrimination clearly occurred while Complainant was in her federal civilian capacity. For example, the record establishes that the discrimination occurred during the work week while Complainant was in her civilian Air Craft Mechanic position. There is nothing in the record that would indicate that any of the discrimination occurred during Complainant's weekend work in her military capacity. Complainant was assigned full duty assignments instead of light duty assignments while she was on the flight line attending to returning aircraft in her civilian Air Craft Mechanic position, and she was injured while attending to returning aircraft in her civilian Air Craft Mechanic position. The discriminatory performance evaluation was based on her civilian Air Craft Mechanic duties. Further, the gender-based offensive and discriminatory comments and demeaning practical jokes occurred while Complainant was working as a civilian Air Craft mechanic. Finally, Complainant's supervisor and co-workers committed the discrimination while they were in their civilian capacities. As a result, we find that the discrimination arose during Complainant's civilian capacity, which is within the jurisdiction of the Commission.
Relief
1. Compensatory Damages
The AJ awarded Complainant $92,500 in non-pecuniary compensatory damages. 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).
Complainant suffered physical harm as a result of the Agency's discrimination. Specifically, because the supervisor assigned her full duty work instead of light duty work because of her gender, Complainant severely injured her back and knees and suffered extreme long-term pain. At the time of the hearing in 2010, almost three years after the injury, Complainant continued to experience significant pain, particularly in her back. Complainant could not sit down without experiencing numbness in her arms and legs, and she had a constant burning sensation in her back. Complainant had trouble sitting through even one day of the hearing without experiencing extreme pain and discomfort. The AJ found Complainant's testimony credible when she stated that she had been living in severe pain with little to no improvement since her injury. Complainant's doctor told her that she had reached maximum medical improvement, and the AJ was persuaded that Complainant will continue to experience significant pain and physical limitations for an indeterminate amount of time in the future. The AJ also found that Complainant's current pain is not from a pre-existing condition, because Complainant was well on her way to recovery from her surgery when she was injured on the job.
Complainant also suffered emotional harm as a result of the Agency's discrimination. The AJ found that "the effects of Complainant's injury on her personal life and emotional well-being cannot be overstated." Complainant testified that she developed anxiety attacks and as a result now has a service dog accompany her in order to make her feel less vulnerable when she ventures out of the house. Complainant lost self confidence, lost her independence, and saw herself become a burden to those around her as she depended on others to clean her house and bring her food. Eventually, Complainant's friend and children who were living with her moved out of the house because the burden of them having to do everything around the house was too much for them. Complainant's relationships with family and friends deteriorated, she was no longer a social person, and she testified that since the discrimination her world consisted of her house and her dogs, and she stated "I have no life." Complainant believed her future was hopeless. She stated that she took great pride in her job and in her dedication to serve her country, and since she cannot work anymore and had to take a medical retirement she feels like she is not productive, is not responsible, and can no longer contribute to society.
In 2008 Complainant was diagnosed with depression and was referred to a psychiatrist. Complainant began taking prescribed anti-depressant, anti-anxiety, and anti-pain medications. The medication made her sleepy and interfered with her ability to drive, which resulted in her rarely leaving the house. After her injury, because Complainant could no longer bend, lift, or squat, she stopped participating in her business of breeding, grooming, and training dogs, which was an activity that she was passionate about and was very successful at doing. The AJ found that "Complainant's world was substantially diminished and narrowed, and she experienced significant distress and great loss of enjoyment of her life."
Complainant's friend testified that she and her children lived with Complainant for many years, and before her injury Complainant was very active and social. However, after her injury Complainant changed drastically and "was a shell of the woman she use to be" and she "hardly looked anybody in the eye." She testified that Complainant became withdrawn, her personality changed, her temperament changed, and she began to have anxiety attacks and required the assistance of a service dog. Complainant's friend testified that Complainant became homebound, secluded, and her interpersonal relationships deteriorated. She testified that Complainant withdrew from all of the things that she cared about after the injury. She testified that Complainant could no longer take care of the house, the property, or even prepare a meal for herself. Her friend had to take on extra jobs to help financially support them, which caused stress on their relationship. Ultimately her friend and her friend's children moved out of the house because of the burden.
After careful consideration of the evidence of record, we find an award of $150,000 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 Lemons v. Dep't of Justice, EEOC Appeal No. 0120102516 (November 16, 2011) (Complainant was awarded $175,000 for non-pecuniary damages where discrimination caused physical injury and emotional harm that lasted for many years, including neck and back pain, depression, severe anxiety, a fear of leaving the house, and strained relationships); Franklin v. United States Postal Service, EEOC Appeal Nos. 07A00025 and 01A03882 (Jan. 19, 2001) (Complainant was awarded $150,000 in non-pecuniary compensatory damages where testimony of Complainant and his wife established that he was withdrawn, depressed, embarrassed, humiliated, lost self esteem, and he experienced financial difficulties, emotional distress, personality changes, and severe strain on relationships); and Goodridge v. Social Security Administration, EEOC Appeal No. 0720050026 (Nov. 15, 2006) (Complainant was awarded $150,000 in non-pecuniary compensatory damages where testimony of Complainant's family and friends established that the hostile work environment caused Complainant to be withdrawn socially, suffer anxiety and depression, he had difficulty maintaining relationships, he lost enjoyment of life, he had a diminished quality of life, and he displayed physical symptoms). Accordingly, we conclude that an award of $150,000 will adequately compensate Complainant for the physical and emotional harm she suffered as a result of the discrimination.
2. Other Equitable Relief
a. Back Pay
Following Complainant's injury on June 25, 2007, she took leave and returned to work on May 12, 2008. At that time, Complainant's physician stated that she could return to work with certain restrictions, and she was offered a modified light duty position that the Office of Workers Compensation Program (OWCP) determined accommodated her physical disability. However, on August 26, 2008, Complainant stopped reporting to work because she felt the position required her to perform duties that exceeded her limitations. OWCP did not agree with Complainant, and on November 6, 2008, OWCP terminated her benefits on the grounds that she had abandoned suitable work offered by the Agency. After a hearing, an OWCP hearing representative upheld the OWCP's decision to terminate Complainant's benefits. Soon after, Complainant left the Agency through a medical retirement.
Complainant asserts that as part of her damages she is entitled to back pay for the period after she stopped reporting to work on August 25, 2008. We agree with the AJ that this would constitute a collateral attack on the OWCP process, as the OWCP has already determined that Complainant could have performed the light duty position offered by the Agency because it was within her medical restrictions. See Mathew v. U.S. Postal Service, EEOC Appeal No. 0120121481 (June 1, 2012) (The proper forum for Complainant to have raised his challenges regarding the processing of OWCP paperwork and the denial of his continuation of pay were within the Department of Labor, which administers OWCP laws and procedures), citing Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998) (an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding). Therefore, we agree with the AJ that Complainant is not entitled to back pay after August 25, 2008.
We agree with the AJ that Complainant is entitled to back pay, with interest and any benefits, for the period between June 25, 2007, and August 26, 2008. We also agree with the AJ that if Complainant regularly worked overtime prior to her incapacitation, the Agency should take her average overtime into consideration in calculating the amount of back pay due. Allen v. Dep't of Air Force, EEOC Appeal No. 04940006 (May 31, 1996) (Gross back pay determinations must reflect fluctuations in working time, overtime rate, penalty overtime, Sunday premium and night work which Complainant would have been entitled to but for the discrimination).
To avoid double recovery, the back pay award must be offset by the amount of any wage-replacement benefits Complainant received, and she is not entitled to back pay for any period in which she received regular pay and benefits. However, Complainant is still entitled to receive overtime that she would have worked during the periods that she received regular pay and benefits, but did not work as a result of her injury. Complainant is also entitled to any potential additional retirement contributions related to the overtime. See Lee v. Dep't of Army, Appeal No. 04980020 (Oct. 1, 1998) (To the extent Complainant would have received government contributions to retirement fund as a component of salary, Complainant is entitled to have retirement benefits adjusted as part of back pay award, including receiving earning which the account would have accrued during the relevant period).
b. Performance Award
Complainant asserts that had she received an "outstanding" performance rating, she would have received a monetary Sustained Superior Performance Award. Complainant received a similar monetary award for her 2005-2006 appraisal. The AJ found that despite the finding that Complainant's performance appraisal was discriminatory, Complainant failed to establish by a preponderance of the evidence that she would have been given the award had she not been discriminated against. After a review of the record, we agree with the AJ that Complainant's assertion that she would have received the performance award is speculative. Evidence in the record establishes that an "outstanding" performance rating did not guarantee a monetary performance award. Therefore, we agree that Complainant is not entitled to compensation for the performance award.
c. Loss of Income
Complainant owned and ran a dog business in which she bred, trained, and showed champion dogs that she owned and were owned by others. Complainant also owned a dog grooming business, in which she was involved until her injury on June 25, 2007, at which time she stopped breeding, training, and showing dogs, and thus sustained a loss of income. Complainant sought reimbursement for the loss of income to her business as well as the deterioration to her home, which she alleged she could no longer upkeep.
The AJ found that beyond Complainant's vague assertions, there was no evidence that would justify an award for loss of income from her business or the deterioration to her home. The AJ noted that the parties were ordered to file any potential damage exhibits with the AJ and the opposing party no later than May 10, 2010, four days before the damages hearing. Complainant did not file any exhibits related to these damages by that due date. Complainant now seeks to submit evidence for loss of income and deterioration to her home on appeal.
After a review of the record, we find that the AJ made it clear that all exhibits and evidence for compensatory damages was due by May 10, 2010, and failure to comply may result in sanctions. Complainant did not offer any evidence that would justify an extension of the due date. Further, as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. MD-110 at 9-15; 29 C.F.R. � 1614.404(b). As a result, we affirm the AJ's finding that Complainant did not establish that she was entitled to pecuniary damages as a result of her loss of income to her business and the deterioration to her home.
d. Loss of Future Earning Potential
Complainant asserted that since she can no longer breed, train, and show her dogs, she is entitled to an award of damages for loss of future earning potential.
An award for the loss of future earning potential considers the effect that Complainant's injury will have on her ability in the future to earn a salary comparable with what she earned before the injury. Brinkley v. United States Postal Service, EEOC Request No. 05980429 (August 12, 1999) citing McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992). Where Complainant has shown that her future earning power has been diminished as a result of the Agency's discrimination, the Commission has awarded future pecuniary damages for the loss of future earning capacity. See Morrison v. United States Postal Service, EEOC Appeal No. 07A50003 (April 18, 2006) citing Brinkley, supra; Hernandez v. United States Postal Service, EEOC Appeal No. 07A30005 (July 16, 2004). Proof of entitlement to loss of future earning capacity involves evidence suggesting that the individual's injuries have narrowed the range of economic opportunities available to her. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Generally, the party seeking compensation for loss of earning capacity needs to provide evidence which demonstrates with reasonable certainty or reasonable probability that the loss has been sustained. Id., citing Annotation, Evidence of Impaired Earnings Capacity, 18 A.L.R. 3d 88, 92 (1968). Such evidence need not prove that the injured party will, in the near future, earn less than she did previously, but that "[her] injury has caused a diminution in [her] ability to earn a living." Carpenter, supra, citing Gorniak v. Nat'l R.R. Passenger Corp., 889 F.2d 481, 484 (3d Cir. 1989).
We agree with the AJ that beyond Complainant's bare assertions, Complainant failed to provide evidence by the May 10, 2010 deadline that established with reasonable certainty or probability that Complainant will sustain a loss of earning capacity. As a result, Complainant is not entitled to future pecuniary damages for loss of future earning capacity.
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, to the extent it has not already done so, is ordered to take the following remedial actions:
1. Within sixty (60) calendar days of the date this decision becomes final, pay to Complainant $150,000 in non-pecuniary compensatory damages.
2. Within sixty (60) calendar days from the date this decision becomes final, the Agency will pay to Complainant all back pay, with interest, and benefits for the period between June 25, 2007, and August 26, 2008. Benefits required to be restored to make Complainant whole include, but are not limited to, the following: seniority, sick and annual leave, health and life insurance, any in-grade step(s) and/or promotion(s) to which she would have been entitled, inter alia. If Complainant regularly worked overtime prior to her incapacitation, the Agency should take her average overtime into consideration in calculating the amount of back pay due. To avoid double recovery, the back pay award must be offset by the amount of any wage-replacement benefits Complainant received, and she is not entitled to back pay for and period in which she received regular pay and benefits. However, Complainant is still entitled to receive overtime that she would have worked during the periods that she received regular pay and benefits, but did not work as a result of her injury. Complainant is also entitled to any potential additional retirement contributions related to the overtime. 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 about the amount of back pay, interest due, and/or other benefits, the Agency is ORDERED to issue a check to the Complainant for the undisputed amount within 60 calendar days of the date this decision becomes final. The Complainant may petition for enforcement or clarification of the amount in dispute. This petition must be sent to the Compliance Officer as referenced in the implementation paragraph below.
3. Within sixty (60) calendar days from the date of this decision, the Agency shall pay Complainant $63,675.03 for attorney fees and costs.
4. Within sixty (60) calendar days from the date of this decision, the Agency shall issue Complainant an amended 2006-2007 performance appraisal. In every instance where the word "excellent" appears, the Agency is to substitute the word "outstanding." The Agency is also ordered to upgrade each element and the overall appraisal to "outstanding."
5. The Agency shall provide training to all management officials at the Agency's Lackland Air Force Base in San Antonio, Texas, regarding their responsibilities with respect to Title VII with special emphasis on preventing and responding to harassment, and their responsibilities under the federal sector EEO process.
6. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the agency shall furnish documentation of their departure date(s).
7. The Agency shall post the attached notice of discrimination, as described below.
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.
POSTING ORDER (G0610)
The Agency is ordered to post at its Lackland Air Force Base in San Antonio, Texas, 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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
8/01/2013
__________________
Date
2
0720110023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720110023