0120142526
07-26-2016
Davina W.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Davina W.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120142526
Hearing No. 443-2012-00012X
Agency No. BOP-2010-0869
DECISION
On July 4, 2014, Complainant filed an appeal from the Agency's June 6, 2014, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse at the Agency's Federal Medical Center facility in Rochester, Minnesota.
On November 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was subjected to harassment. In support of her claim of harassment, Complainant alleged that the following events occurred:
1. From March 2010 through August 2010, Complainant was subjected to harassment in the form of counselings, being placed on a Performance Improvement Plan (TIP), and receiving unwarranted quarterly evaluation ratings; and
2. On August 17, 2010, Complainant's request for post reassignment was denied.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on June 14, 2012 and August 28, 2012. Following the hearing, the AJ issued a decision on May 2, 2014.
As an initial matter, the AJ noted that the Agency moved to dismiss the complaint as a whole pursuant to 29 C.F.R. � 1614.107(a)(4) asserting that Complainant alleged the same incidents in a grievance dated June 4, 2010. The AJ reviewed the record and found that there was some overlap between the grievance and Complainant's formal complaint. However, the AJ noted that the grievance did not address the two claims indicated above.
In her decision, the AJ held that Complainant established a prima facie case of reprisal. The AJ noted that Complainant began representing employees in EEO matters starting in May 2009 and her husband in July 2009. The AJ noted that there was evidence in the record establishing that Complainant's management was aware of her EEO activity including a copy of an email providing Complainant with official time on May 5, 2010. The Director of Nursing (Director) stated during the investigation that she was not aware of Complainant's prior EEO activity. The AJ also noted that when the Director was shown the email, she stated that she believed it might have been for union activity and then suggested that this was only one of thousands of emails she received daily. The Warden noted that he was aware that Complainant was a representative for others in EEO matters. Therefore, the AJ determined that the evidence did not support the assertions of the Director and the Supervisor that they were not aware of Complainant's protected EEO activity. The AJ found them not to be credible. As such, the AJ determined that management was aware of Complainant's EEO activity in May 2010, when the alleged harassment occurred.
The AJ then turned to the Agency and determined that it provided legitimate, nondiscriminatory reasons for its actions. However, the AJ then held that Complainant established that the Agency's reasons were pretext for discrimination. The AJ noted that, although it was not actionable, the background evidence supported Complainant's claim of harassment. The AJ noted that Complainant's had been performing her duties for five years successfully. However, when she began participating in the EEO process, the AJ noted that the duties were unexplainably removed. The AJ noted that the reasons for the removal of the duties were suspect. As for the PIP, the AJ held that the record demonstrated that Complainant had performed at the "Outstanding" level for 12 years. The AJ found serious credibility issues with the testimony of the Supervisor and held that Complainant had shown that the reasons for the PIP and performance evaluation were pretext for retaliation. Finally, the Agency accused Complainant of removing equipment from the crash cart. Complainant indicated that she did no such thing and used back-up equipment. Complainant further noted that the Supervisor removed same equipment and did not replace it for days, yet there were no consequences to the Supervisor's action. The AJ noted that there was no way to confirm Complainant's story however, the AJ held that "[g]iven the circumstances of this case, it simply was not reasonable for Complainant to be subjected to such harsh consequences, and a reasonable fact finder could rationally find the purported explanation unworthy of credence." The AJ also indicated that the Director emailed stating, "I definitely do not want to let up on her at this point so it needs to be addressed somehow." The AJ found this email in connection with all the other evidence in the record to support Complainant's claim of retaliatory animus. Finally, the AJ turned to an incident on June 2, 2010, when management asked Complainant to care for a patient while his assigned nurse was not available. The patient sent in a complaint to the Agency because the assigned nurse indicated that Complainant was unprofessional. However, the AJ noted that Complainant was only doing what she was assigned to do by management. The AJ found that the Supervisor failed to engage in a proper investigation into the matter and was not made aware that Complainant was ordered to care for the patient and was only following orders. Instead, the Supervisor used the event to give Complainant an unsatisfactory rating.
The AJ then turned to claim (2), namely the denial of her request for a reassignment. Complainant provided evidence that another employee sought a reassignment and was provided the reassignment by the Warden. The AJ noted that the comparator was not a proper comparator. However, the AJ noted that the Warden's reason for denying the reassignment was the PIP. Based on the AJ's finding that the PIP constituted unlawful retaliation, the failing to grant Complainant's request to move because of the PIP is a perpetuation of the existing retaliation. Therefore, the AJ concluded that Complainant was subjected to unlawful retaliatory harassment when, from March 2010 through August 2010, she was subjected to harassment and in August 2010, she was denied a reassignment.
The AJ then determined that Complainant was entitled to compensatory damages in the form of non-pecuniary damages. The AJ held that Complainant testified that she felt that the harassment caused humiliation with her co-workers by publicly belittling her, including when she was reprimanded in public in front of other people and when the collateral duties were removed. She averred that she felt that she could not do anything right. She noted that after she received the PIP, she realized she was only one step away from being fired, and this was very hard for her to accept since she always held herself to a high standard in her work and it was stripped from her. Complainant testified that she began to experience anxiety attacks when she was driving to work; she could not sleep; and she began to withdraw from her family. She also noted that she had more headaches and was given medication. Complainant's husband testified that Complainant changed from coming home happy from work and enjoyed her work to coming home angry and distant. He averred that she did not want to go to work, she could not sleep, she always had headaches and was very distant with him and the kids. A coworker also testified that Complainant was a leader but after the incidents, she became withdrawn. Based on the record, the AJ determined that Complainant was harmed by the retaliation. However, the AJ noted that Complainant's remedy is limited because some of the events raised were also raised in the grievance. As such, the AJ found that, based on the events before her, she awarded Complainant $ 15,000.00 in non-pecuniary damages.
In addition, the AJ ordered that the Agency conduct EEO training with a focus on unlawful retaliation. The AJ also ordered the Agency to remove any reference to the PIP and any other documents related to "unsatisfactory" conduct on the part of Complainant, from March 2010 and August 2010. The AJ also ordered Complainant's representative (Representative) to submit a request for attorney's fees and costs to the AJ.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged.
Complainant filed the instant appeal. The only issue raised on appeal is the AJ's award of $15,000 in compensatory damages. The Representative indicated that the AJ found that she was subjected to unlawful retaliation from 2009 to the date of the hearing in 2012. As such, the Representative argued that the AJ's award is not sufficient and that Complainant should be awarded from $195,000 to $100,000 to $75,000 in compensatory damages. The Agency responded to the appeal asserting that the Commission should affirm the AJ's award. The Agency noted that Complainant had filed a grievance on several issues for which remedy is not available. Therefore, the Agency argued that the AJ's award of $ 15,000 was appropriate.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
As noted above, the only issue before the Commission is the AJ's award of $15,000. Complainant testified and the AJ found credible that, due to the retaliatory harassment, she experienced emotionally and physically. She indicated that she went from enjoying work to dreading coming into the office. She also noted that the retaliatory harassment also caused problems at home and caused her to withdraw from family and work. The AJ properly noted that her husband and coworker supported Complainant's statement of harm.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. � 1981a(b)(3). For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't. of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14.
In Carle v. Dep't. of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't. of Agric., EEOC Appeal No. 01945652 (July 17, 1995).
On appeal, Complainant argued that award does not account for all the harassment Complainant experienced. However, we note that Complainant did not challenge the AJ's decision but for the award of remedies. She did not appeal the AJ's decision to the extent the AJ dismissed those issues raised and addressed in the grievance.
Based upon our review of the record, we find that the AJ's award of $15,000 in non-pecuniary damages is appropriate. This amount takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See Norte v. Dep't. of Energy, EEOC Appeal No. 01A24738 (Dec. 12, 2003) (awarding Complainant $15,000 in non-pecuniary damages for reprisal which left her feeling humiliated, demeaned, and degraded, and had overwhelming feelings of dread, foreboding, anxiety, sadness, helplessness, and hopelessness); Blinick v. Dep't. of Hous. & Urban Dev., EEOC Appeal No. 07A20079 (February 3, 2004) (awarding $ 13,025 for retaliatory harassment including "unsuccessful" rating where she experienced heightened stress, and increased pain and fatigue from fibromyalgia); Jones v. Dep't. of Commerce, EEOC Appeal No. 01A13671 (May 2, 2002) (awarding $15,000 to Complainant who experienced depression, stomach pains, nausea, headaches, dizziness, and problems with family relationship for approximately nine months due to unlawful retaliation).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order implementing the AJ's decision. We REMAND the matter in accordance with the ORDER below.
ORDER (C0610)
The Agency, to the extent it has not done so already, is ordered to take the following remedial action:
1. The Agency shall pay Complainant $15,000 in compensatory damages;
2. The Agency shall remove any references to the PIP and the documents issued to Complainant and used to support the PIP from March 2010 through July 2010.
3. The Agency is directed to conduct training for management who was found to have violated Title VII. The Agency shall address these employees' responsibilities with respect to retaliation.
4. The agency shall consider taking disciplinary action against the Supervisor and the Director. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
5. The Agency shall complete all of the above actions within ninety (90) calendar days from the date on which the decision becomes final.
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 verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Federal Medical Center in Rochester, Minnesota, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
July 26, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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