0720090044
08-22-2013
Daniel Basaldua, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Daniel Basaldua,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0720090044
Hearing No. 480-2007-00152X
Agency No. HS06TSA001536
DECISION
Following its June 30, 2009, 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, and AFFIRMS the AJ's finding of discrimination and relief ordered.
ISSUE PRESENTED
The issue on appeal is whether there is substantial evidence in the record to support the AJ's finding that: (1) Complainant established that his demotion and remedial training were based upon unlawful racial (Hispanic/White) and national origin (Hispanic) discrimination; (2) Complainant was subjected to a hostile work environment harassment based upon his race, national origin, and in reprisal for prior EEO activity; and (3) Complaint was retaliated against when his supervisor provided a negative reference to a prospective employer.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant worked as a Supervisory Transportation Security Officer at the Agency's Saipan International Airport facility in Saipan, MP. Complainant began his employment with the Agency on February 16, 2003. On December 16, 2004, Complainant was promoted from a Transportation Security Office (TSO) to a Supervisory Transportation Security Officer (STSO), subject to a one year supervisory probationary period.
On or around October 4, 2005, the Assistant Federal Security Director (ASFD) removed Complainant from his STSO position and returned him to his TSO position. Specifically the AFSD cited the following reasons in support of the demotion: (1) on numerous occasions Complainant failed to provide proper and accurate information for submission into the PMIS data system, despite repeated notice of the discrepancies and guidance from his supervisors on how to properly complete the submissions; (2) on April 27, 2005 and May 25, 2005, Complainant missed the mandatory Supervisors and Leads meetings without authorization; (3) on September 3, 2005, Complainant missed a required class on Employee Counseling; (4) on September 13, 2005 Complainant was issued a Letter of Guidance and Direction for failure to follow instructions; and (5) on September 15, 2005, Complainant was issued a Letter of Counseling for failing to meet deadlines and failing to provide a positive role model for his subordinates.
On or about December 20, 2005, Complainant was issued 30 days of remedial training after a Lead Transportation Security Screener (LTSS) reported him for missing a prohibited item. The LTSS reported that he observed a box cutter that Complainant allowed to pass through the x-ray machine without calling for a bag check. The LTSS pointed the prohibited item out to Complainant and directed him to run the bag through the x-ray machine again. Complainant did not identify the item again, and the LTSS called for a bag check.
During the time period between his demotion and his resignation on June 9, 2006, Complainant was subjected to the following disciplinary citations and reprimands: (1) Complainant was issued a Letter of Guidance dated November 7, 2005 for being 2.5 minutes late; (2) Complainant was issued a Memo of Counseling on November 22, 2005 for being 2 hours and 30 minutes late because he forgot that his start time was 10:00 rather than 12:30; (3) Complainant was issued a Letter of Reprimand, dated January 5, 2006 for being 15 minutes late on January 1, 2006; (4) Complainant was issued a Notice of a 3-day Suspension from Duty without Pay, dated February 9, 2006, for making the following statement on November 26, 2005 "as if they don't have a vagina" to a female supervisor in the presence of other co-workers; and (5) Complainant was placed on a leave restriction by letter dated April 6, 2006 based on a November 7, 2005 Letter of Guidance and Direction, the November 22, 2006 Memo of Counseling, and the January 5, 2006 Letter of Reprimand, all citations for AWOL against Complainant.
After resigning from the TSO position with the Agency Complainant relocated to California, and within one week he applied for a position as a counselor working with youth in the California Department of Corrections and Rehabilitation (CDCR). Complainant reported to the CDCR that he had been demoted as a supervisor, charged with sexual harassment, and subsequently filed an EEO complaint against the Agency for unlawful discrimination and harassment, during the application and interview process. Complainant believes that someone from the Agency provided a negative reference to CDCR because while he passed all the required hiring exams and submitted all the necessary documents, CDCR did not offer Complainant the position. Additionally, on May 11, 2007, a representative from CDCR sent Complainant a letter which stated in relevant part:
"The investigation of your background was recently concluded and the determination has been made that you do not possess the desirable qualifications for this position based on the following: [n]egative employment record."
On January 27, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against him and/or subjected him to discriminatory harassment on the bases of race (White/Hispanic), national origin (Hispanic), sex (male), and in reprisal for prior EEO activity under Title VII when: (1) on October 4, 2005 he was demoted from his position as a Supervisory Transportation Security Officer (STSO) to a Transportation Security Officer (TSO) during his probationary period; (2) during the period of November 5, 2005 and continuing when on December 21, 2005, as indicated above, he was given 30 days of remedial training on the x-ray machine; (3) he was subjected to a hostile work environment from on or about November 7, 2005 and ending when he resigned on June 9, 2006; and (4) Agency management officials provided a negative reference to Complainant's prospective employers.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on June 2, 2008, and issued a decision on June 4, 2009. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged.
The AJ found that Complainant established that his demotion and remedial training were based upon unlawful racial and national origin discrimination; that he was subjected to a hostile work environment based upon his race, national origin, and in reprisal for prior EEO activity; and that he was retaliated against when the Agency official provided a negative reference to CDCR. Specifically, the AJ found that while management identified countless numbers of performance problems with Complainant which warranted his demotion and the other things which happened to Complainant, the hostile work environment claims were tainted with discriminatory and retaliatory animus. Additionally, the AJ states that he did not credit the testimony of the AFSD because he found him less than honest and forthright during the hearing. The AJ found that the AFSD's testimony was inconsistent with other witnesses, including Complainant, whom he found credible. Ultimately, the AJ found that the AFSD did not articulate a legitimate, nondiscriminatory reason for treating Complainant differently, and more harshly, than the other supervisors in probationary status.
With respect to Complainant's hostile work environment allegation, the AJ found it reasonable that a person in Complainant's position would have found the Agency's actions to be so severe and pervasive as to create a hostile, offensive, and abusive working environment. Finally, with respect to Complainants' retaliation claim, the AJ found that CDCR's own admission that the decision not to hire was based in some part on a negative employment record calls into question the type of reference provided by Agency officials. The AJ found that the "suspicion-causing reference" which was provided by the Agency was done so with retaliatory intent.
CONTENTIONS ON APPEAL
On appeal the Agency requests that the Commission affirm its rejection of the AJ's decision finding that Complainant was subject to discrimination and a hostile work environment on the basis of race, national origin, and in reprisal for prior EEO activity. Additionally, the Agency requests that the Commission affirm its rejection of the AJ's decision on damages. Specifically, the Agency says that record evidence does not support the AJ's finding that Complainant was demoted, disciplined, or subject to any actionable hostile work environment because of his race, national origin, or for any involvement in prior EEO activity.
The Agency contends that Complainant was promoted to the STSO position, but the Agency was forced to demote him during the probationary period because Complainant was performing his supervisory duties poorly. With respect to Complainant being given remedial training on the x-ray machine, the Agency submits that this happened in response to Complainant's inability to recognize a prohibited item, even after that item was pointed out to him. Additionally, two months earlier Complainant's test scores on the x-ray machine were below the standard. With respect to the AJ's finding that Complainant was subjected to actionable hostile work environment, the Agency argues that the AJ abused his discretion when he reinstated issues which Complainant had previously withdrawn. Additionally, the Agency states that all of the alleged acts of harassment that the AJ found to constitute the hostile work environment were all discrete acts unaccompanied by abusive language or conduct. Finally, the Agency contends that the AJ failed to point to any evidence in the record to show that any of the alleged harassers were aware of Complainant's prior EEO activity, nor does the evidence establish that any management official provided negative information regarding Complainant to any prospective employer. Finally, the Agency contends that the AJ erred when it awarded Complainant $80,000 in compensatory damages, and when he ordered the Agency to pay Complainant $74,000 in make whole relief.
In response to the appeal, Complainant reiterates many of the arguments from his initial complaint and requests that the Commission affirm the AJ's decision.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. 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).
ANALYSIS AND FINDINGS
Disparate Treatment & Harassment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
The Agency argues that Complainant was demoted because he failed to adequately perform his supervisory duties, citing to several incidences involving Complainant it proffers as unacceptable conduct for a person in the STSO position. During the hearing, the AJ found that Complainant credibly testified that other STSOs had engaged in similar conduct, but were not demoted as a result. While the AFSD testified that there were no probationary STSOs who were performing their supervisory duties as poorly as Complainant, we find there is substantial evidence in the record to support the AJ's finding that the Agency failed to present any credible evidence to directly dispute Complainant's assertion that other STSOs had engaged in similar conduct and were not demoted.
Evidence in the record does not establish that Complainant was ordered to attend the Supervisor and Leads meeting scheduled for 9:00 a.m. on April 27, 2005 when the meeting did not coincide with his normal shift hours, or that he was alternatively offered or entitled to overtime to attend the meeting. Additionally, record evidence establishes that other employees were absent for various reasons without any disciplinary action being taken against them. On May 25, 2005, record evidence establishes that Complainant was on sick leave, and was officially excused from the Supervisor and Leads meeting held on May 25, 2005. The AFSD testified that he did not inquire with anyone regarding the reason for Complainant's absence from the meeting, and simply relied on the minutes from the meeting to determine that he was not in attendance. ASFD testified at the hearing that no one notified Complainant that the September 3, 2005 "Employee Counseling" training class was mandatory. Additionally, the record reflects that Complainant was on sick leave this day, and the ASFD could not recall during the hearing why he cited this incident as a reason to support Complainant's demotion because he knew Complainant was out sick. With respect to the issuance of the September 13, 2005 letter of Guidance, the AJ found that Complainant credibly testified that the PMIS was a management report that was the responsibility of the security managers, however management frequently designated the task to supervisors without training them. As a result of the lack of training, several mistakes were made inputting data.
With respect to issuing Complainant 30 days of remedial training on the x-ray machine the Agency argues that other screeners who missed prohibited items did not have the items pointed out to them during the test, nor were their scores as poor as Complainant's. The Agency failed to produce any evidence to support this contention. During the hearing the parties stipulated to the fact that two STSO's failed to detect prohibited items during a screening and both were issued three days of remedial training on the x-ray machine. Additionally, the AJ found credible the testimony of another STSO that remedial training for missing a prohibited item during a screening should not amount to more than 5-10 hours. This STSO testified that 30 days of remedial training was more training than what is required for a brand new screener, or a person who has been out of the screening rotation for more than 180 days. These individuals are only required to complete 20 hours of training. We find that there is substantial evidence in the record to support the AJ's finding that the Agency failed to articulate a legitimate non-discriminatory reason for issuing Complainant such a severe sanction, and therefore the decision was motivated by discrimination based on race and national origin.
The Commission agrees with the AJ's finding that Complainant did not present sufficient evidence to support an inference of discrimination based on sex, but that he did establish a prima facie case of discrimination based on his race and national origin. Additionally, we find that while the Agency asserted several legitimate non-discriminatory reasons to justify demoting Complainant, requiring him to complete 30 days of remedial training, as well as, subjecting Complainant to the series of disciplinary citations and reprimands, there is substantial evidence in the record to support the AJ's finding that Complainant met his burden of establishing that the Agency's asserted reasons were pretextual for unlawful discrimination based on race and national origin. In the absence of any other explanation for the treatment Complainant endured, the AJ found that the treatment was because of Complainant's race, national origin and in reprisal for prior EEO activity.
We give deference to the AJ's credibility determinations regarding the testimony of the witnesses, and the presentation of the evidence at the hearing. The AJ had the opportunity to observe the witnesses during the hearing and subsequently made credibility determinations. As there is no objective documentary evidence to contradict the AJ's credibility determinations, we decline to substitute our own judgment for that of the AJ with respect to the issue of credibility. See EEO MD-110, at Ch. 9, � VI.B.
With respect to the Agency's contention that the AJ abused his discretion by reinstating issues which Complainant had previously withdrawn in order to support the finding of hostile work environment harassment, we conclude that the AJ did not abuse his discretion in the instant matter. The AJ notes that while Complainant withdrew some the claims from his initial complaint, he was unconvinced that Complainant (un-represented) understood the import of withdrawing these claims while continuing to present his case as though he was subjected to a hostile work environment. Additionally, in response to the Agency's appeal, Complainant also states that he was misinformed during the pre-hearing phase by the previous AJ.
We find that substantial evidence in the record supports the AJ's conclusion that Complainant successfully demonstrated that the events complained of were based on his race, national origin, and prior EEO activity. After hearing and considering witness testimony and evidence from the Agency, as well as, Complainant, the AJ made a determination that Complainant did not appear to have been any more of a "problem employee" than several others, but was treated differently and more harshly than one employee identified as Asian Pacific Islander, and another employee whose racial identity is unspecified. We find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that there is substantial evidence in the record to support the AJ's finding that a reasonable person in Complainant's position would have found that the Agency's conduct was sufficiently severe and pervasive that it created a hostile, abusive or offensive work environment, and/or unreasonably interfered with Complainant's work performance. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). This finding is further supported by the determination that Complainant establish that the other actions (i.e. demotion and referral to 30 days of remedial training) taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Reprisal
Complainant can establish a prima facie case of retaliation by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Administration, 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, complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) his employer was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by his employer; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
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).
We are satisfied that Complainant has established that: (1) he engaged in a protected activity; (2) that the Agency, and specifically the officials responsible for the adverse employment actions, were aware of his engagement in this protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Having established each of these factors, we find that Complainant has met the requirements for establishing a prima facie case of reprisal discrimination, and the burden now shifts to the Agency to articulate a legitimate, non-discriminatory reason for providing a negative reference to CDCR. The Agency responds to the AJ's finding on reprisal by stating simply that it did not provide CDCR with any negative information regarding Complainant and that the AJ's finding is based on mere speculation.
We find that substantial evidence exist in the record to support the AJ's finding that the Agency subjected Complainant to discrimination in reprisal for prior EEO activity. It is undisputed that: (1) Complainant passed examinations and submitted all the documentation required by CDCR for the counselor position; (2) Complainant testified that the EEO counselor spoke with a representative from CDCR who indicated that Complainant was not offered the position because of a "negative employment record" which "in part" was based on some of Complainant's own admissions regarding his employment with the Agency; and (3) that the Agency's Human Resources Specialist (HRS) spoke with someone from CDCR regarding Complainant's employment with the Agency. The AJ's finding that the HRS's decision to avoid providing the amount of information generally provided under the Privacy Act was intentionally retaliatory is supported by substantial evidence in the record. The AJ found that the HRS strayed away from the Agency's typical neutral and detached policy of discussing questions only related to dates of employment. Complainant testified at the hearing, and the HRS testified during the investigation, that she was unable to provide answers to many of CDCR's questions because of the Privacy Act, and that "she advised them of this fact". We find that this evidence supports the AJ's finding that providing this additional, unnecessary information, reasonably raised CDCR's suspicion regarding Complainant's employment, impact the hiring decision, and was intentionally retaliatory.
Compensatory Damages & Make-Whole Relief
Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002, at 8 (July 14, 1992). Objective evidence of compensatory damages can include statements from the complainant concerning his or her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, or other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).
Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Banks v. United States Postal Service, EEOC Appeal No. 07A20037 (September 29, 2003).
An award of non-pecuniary compensatory damages should reflect the extent to which the agency's discriminatory action directly or proximately caused the harm as well as the extent to which other factors also caused the harm. Johnson v. Department of the Interior, EEOC Appeal No. 01961812 (June 18, 1998). It is the complainant's burden to provide objective evidence in support of a claim and proof linking the damages to the alleged discrimination. Papas v. United States Postal Service, EEOC Appeal No. 01930547 (Mar. 17, 1994); Mims v. Department of the Navy, EEOC Appeal No. 01933956 (Nov. 24, 1993). The Commission recognizes that not all harms are amenable to a precise quantification; the burden of limiting the remedy, however, rests with the employer. Chow v. Department of the Army, EEOC Appeal No. 01981308 (Feb. 12, 2001). Moreover, the amount of an 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. Cygnar v. Chicago, 865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).
Complainant's presentation of evidence in support of non-pecuniary compensatory damages consisted of testimony from himself, along with proof of treatment in the Emergency Room, medical documentation to support his increased alcohol consumption to deal with the emotional distress, and a prescription for diazepam to help him relax and sleep. Additionally, there is no record of Complainant suffering from any pre-existing condition which would have contributed to any of the side effects Complainant alleges occurred as a result of the discrimination. Complainant testified that as a result of the discrimination he began frequently fighting with his wife which led to marital problems. Complainant testified that his 8 and 12 year old children became withdrawn from him because he frequently snapped at them. Complainant says that he developed trouble sleeping, and waking up frequently with night sweats. Complainant testified that he became withdrawn from his family, questioned his faith, and contemplated divorcing his wife.
The Commission has awarded compensatory damages amounts similar to the amount awarded in this case. See Smith v. USPS, EEOC Appeal No. 07A50022 (June 29, 2005), request for reconsideration denied, EEOC Request No. 05A51145 (October 27, 2005) (Commission awarded $85,000 in compensatory damages where complainant testified that she experienced stress, depression, anxiety, sleeplessness, marital problems that lead to divorce, loss of family and friends, excessive crying, chest pain, back spasms, rashes, sharp abdominal pain, and weight loss. Complainant submitted statements from her psychiatrist and physician to support her claim.); Offley v. USPS, EEOC Appeal No. 07A30053 (February 10, 2004) (Commission awarded $75,000 where complainant testified to experiencing pain and humiliation at having to leave the agency and work menial jobs, and borrow money from family members. Statements of complainant and his wife, as well as, medical documentation cited a loss of enjoyment of life, strained marital relationship, and sleeplessness). We find the AJ's award of compensatory damages in the amount of $80,000 in line with Commission precedent.
We find that the AJ's award of $74,000 in make-whole relief was improper. In light of the evidence, this award of make-whole relief is too speculative. There is no evidence that Complainant would have gotten the job, absent the adverse action by the Agency. Testimony in the record indicates that Complainant was not offered the job in part because of a negative employment record. Complainant testified that representatives from CDCR advised him that some of his own admissions were included in his "negative employment record." Upon finding that this award of make-whole relief was too speculative, we reverse the AJ's order with respect to this provision.
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, AFFIRM the AJ's finding of discrimination with a modified remedy, and REMAND the matter back to the Agency to take corrective action with this decision and the order herein.
ORDER
Within one-hundred and twenty (120) calendar days of the date this decision becomes final, the Agency, to the extent that it has not done so already, is ORDERED to take the following actions:
1. purge Complainant's personnel record of all disciplinary history referenced in this decision.
2. award Complainant back pay in the amount of the difference in pay between a STSO and a TSO from October 4, 2005 through his resignation on June 9, 2006, including interest based upon the interest rate charged by the IRS for delinquent payments for the period of October 4, 2005 to the present day.
3. reimburse Complainant for any loss of wages associated with AWOL charges or disciplinary action during the period of time referenced in the above-captioned case, including his 3-day suspension without pay, including interest based upon the interest rate charged by the IRS for delinquent payments to the present day.
4. ensure that the relevant management officials who participated in the unlawful discrimination referenced herein do not do so again by administering training. Such training shall include, but is not limited to, EEO awareness training, especially focusing on Title VII with particular emphasis on race, national origin, and harassment/hostile work environment issues. To the extent that the Agency still has functional control over those employees responsible for the illegal actions, the Agency shall require these employees to attend a minimum of forty (40) hours of EEO awareness training annually for the next three years.
5. 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).
6. restore to Complainant any annual leave, sick leave, and any other equitable remedy to which Complainant would otherwise be entitled had he not been subjected to unlawful discrimination and reprisal.
7. compensate Complainant for non-pecuniary damages in the amount of $80,000.00.
8. award Complainant costs associated with his successful prosecution of his EEO cases in the total amount of $2,097.59.
POSTING ORDER (G0900)
The agency is ordered to post at its Saipan International Airport in Saipan, MP 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.
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
__8/22/13________________
Date
2
0720090044
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720090044