0720140026
10-29-2015
Kerrie F.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Kerrie F.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0720140026
Hearing No. 530-2007-00041X
Agency No. PHI-06-1988-SSA
DECISION
Following its April 21, 2014 final order, by letter to the Equal Employment Opportunity Commission (EEOC or Commission) received on April 23, 2014, the Agency filed a timely appeal. The Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination and separate determination of relief for a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. On May 20, 2014, Complainant filed a timely cross appeal requesting increased relief. The Commission accepts both appeals pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Bilingual (Korean/English) Service Representative, GS-8 at the Agency's Jenkintown District Office and its Philadelphia Northeast Field Office in Pennsylvania.
On May 10, 2006, Complainant filed an EEO complaint alleging, in relevant part, that the Agency discriminated against her based on her race (Asian), national origin (Korean), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. it subjected her work to consistent unwarranted scrutiny which resulted in her being placed on a Performance Assistance Plan (PAP) effective January 9, 2006, and, consequently, on a Performance Enhancement Plan which she learned of on May 9, 2006, and was effective May 23, 2006;
2. she learned in January 2006, that she was not awarded a merit award for outstanding team work; and
3. she was not selected for the positions of Claims Representative under vacancy announcement SSA 2006-053 (Rockville, Maryland) and under vacancy announcement SSA 2006-060 (Frederick, Maryland).
Prior to the completion of the investigation, Complainant timely requested a hearing before an EEOC AJ. Shortly thereafter, in compliance with an AJ's order, the Agency completed the investigation, which it provided to Complainant.
Following a hearing of seven days to determine liability, over which AJ 1 presided, he found reprisal discrimination on issue 1, and no discrimination on the remaining bases and issues 2 and 3.2 After then presiding over three days of hearings to determine remedies, AJ 1 recused himself. AJ 2, based on the record and additional submissions by the parties, issued decisions on equitable relief, damages, and attorney fees. AJ 2's order entering judgment was made on March 11, 2014. Thereafter, the Agency issued its final order rejecting the finding of discrimination and relief.
Complainant started working as a Bilingual (Korean/English) Service Representative in September 1999. She was terminated on the grounds of unacceptable performance effective October 6, 2006. Service Representatives greet visitors, determine why they are there and whether their issue can be handled by a Service Representative or should be referred to someone else in the office. They do the same with callers. Service Representatives elicit relevant facts and resolve problems with eligibility and payments, explain technical provisions, and provide other services, such replacing social security cards.
Complainant previously filed EEO complaints around 2002 and 2003. District Manager 1 believed he submitted affidavits in response to these prior complaints. Liability Hearing Transcript (HT) 2, at 5-6. He was mostly Complainant's second line supervisor.
On June 15, 2005, the Agency entered into a settlement agreement with Complainant closing her EEO claims and grievances. The parties agreed to detail Complainant to the Jenkintown District Office for 120 days, and if the Area 1 Director of the Philadelphia Region, Complainant's third line supervisor, was satisfied that she completed it with successful performance and satisfactory behavior/conduct, she would remain there permanently. If not, she would return to the Philadelphia Northeast Field Office. Jenkintown was a much smaller office. The Agency also agreed to expunge all documentation of discipline, counseling, warnings, or reprimands from Complainant's 7B and Official Personnel Files.
AJ 1 found that the Area 1 Director decided to settle Complainant's claims even though District Manager 1 disagreed with the decision to do so. AJ 1 recounted District Manager's 1 testimony that he understood the purpose of detailing Complainant to Jenkintown was to give her a fresh start, but he had mixed emotions about this and it made him uncomfortable.
AJ 1 found that District Manager of the Jenkintown District Office (District Manager 2) had mixed feelings about Complainant being detailed to her office. AJ 1 found that when Complainant started in Jenkintown, District Manager 1 contacted District Manager 2 and told her he believed Complainant had problems in the Philadelphia Northeast Office and it was unfair for his problem employee to be moved to her. He also discussed the settlement agreement with District Manager 2. Liability HT 2, at 49. While District Managers 1 and 2 were close colleagues, they had no managerial relationship after the latter left her job as Assistant District Manager of the Philadelphia Northeast Office in late 2002 to become the District Manager of Jenkintown.
Complainant was detailed to Jenkintown on or about June 27, 2005. AJ 1 found that during her detail, District Manager 1 spoke to District Manager 2 about Complainant as much as a couple times a week.
AJ 1 found that District Manager 2 criticized Complainant for not working expeditiously. AJ 1 found, however, that based on Visitor Intake Process (VIP), a computer database system which measured the frequency, length and general topic of interviews (when identified therein), Complainant's performance was significantly faster than the second Service Representative in Jenkintown. In making this finding, AJ 1 credited a statistical report by Complainant's expert witness, who testified thereon.
District Manager 2 documented her assessment that Complainant failed to meet the requirement of the settlement agreement in various memorandums. Pointing to the documentation and District Manager 1's deposition testimony, AJ 1 found that her criticisms of Complainant were petty and forced because they included assertions that Complainant did not properly answer the telephone, wore jeans once, asked questions of co-workers, and typed slowly.
Based on District Manager 2's input, the Area 1 Director terminated Complainant's detail, and he directed Complainant to return to the Philadelphia Northeast Office effective October 25, 2005.
When Complainant returned to the Philadelphia Northeast Office, S1, who previously supervised Complainant as a de facto supervisor, resumed this role. Report of Investigation (ROI), Exh. 12, at 174. S1 was a Staff Assistant Supervisor. AJ 1 found that District Manager 1 informed S1 that Complainant had performance problems while in Jenkintown, that she had no first-hand knowledge of this, and she read District Manager 2's memoranda regarding Complainant during the Jenkintown detail.
S1 logged her observations of Complainant's interviews from November 10, 2005 through January 25, 2006. This included a number of negative comments. ROI, Exh. 59, at 362 - 368; Liability HT 3, at 75.
By memorandum dated November 2, 2005, District Manager 1 notified Complainant that he wanted to work with her to develop a Performance Assistance Plan (PAP). ROI, Exh. 57. By memorandum dated December 15, 2005, District Manager 1 formally notified Complainant that she would be placed on a PAP effective January 9, 2006 (which was extended through May 8, 2006). ROI, Exhs. 55; & 59, at 369.
AJ 1 found that S1 initially contended, on direct examination by the Agency, that Complainant committed various errors in her interviews of beneficiaries, and the Agency relied on these allegations as legitimate, nondiscriminatory reasons for its actions in this case. AJ 1 found, however, that on cross-examination S1 recanted all her allegations and admitted that Complainant did not make mistakes or errors during the PAP - (this actually regarded the period she observed Complainant's interviews from November 10, 2005 through January 25, 2006).
AJ 1 found that District Manager 1 testified that he asked S1 to show him her affidavit before she submitted it to the EEO investigator in the case before us, and that he explained he did this because "I wanted to see if we were on the same page," and to see "if our memories were the same." Liability HT 2, at 29.
District Manager 1 formally observed Complainant's interviews from January 27, 2006 through February 9, 2006, while S1 was on two weeks of leave. Liability HT 3, at 82 - 83; ROI Exh. 59, at 358 - 359. Thereafter, S2 formally became Complainant's first line supervisor and assumed the role of overseeing and documenting her performance for the remainder of her employment. ROI Exh. 13; ROI Exh. 59, at 337 - 357. S2 became the Assistant District Manager of the Philadelphia Northeast District Office in February 2006, and directly reported to District Manager 1.
S2 gave Complainant memoranda regarding her performance, and placed her on a Performance Enhancement Plan (PEP) effective May 23, 2006, on the grounds that she continued to have significant problems in the application of basic job knowledge to beneficiaries and her performance was at the unacceptable level. Thereafter, S2 removed Complainant effective October 6, 2006, with the concurrence District Manager 1, based on unacceptable performance and failure to increase this level of performance despite assistance during the PAP and PEP.
AJ 1 found that for the case before us District Manager 1 asked S2 to review his affidavit and to show her affidavit to him before they submitted them to the EEO investigator to "see if our memories were the same" and "to see if we were on the same page." Liability HT 2, at 16 - 17. This sharing occurred.
After four days of hearings which included District Manager 1 testifying that he asked to see S1 and S2's affidavits and shared his with S2 prior to their submission to the EEO investigator, and S1 recanting her testimony, AJ 1 ruled on Complainant's prior motion to sanction the Agency because District Manager 2, S1 and S2 destroyed their handwritten notes of their observations of Complainant's interviews of beneficiaries and her performance, and District Manager 2 and S2 destroyed their emails regarding Complainant. While the record contained typewritten logs of their observations of Complainant's interviews and performance, and various typewritten memorandums to Complainant regarding this, AJ 1 found that the destruction of the notes and emails, which were created between August 2005 and September 2006 violated 29 C.F.R. � 1602.14. AJ 1 found that some of the documentation was destroyed within one year of its creation, after Complainant filed her formal complaint, and within one year after Complainant's removal, and each destructive event violated the regulation. AJ 1 noted that Complainant warned the Agency that all relevant documents must be preserved when she filed her complaint in May 2006.
AJ 1 ruled that the lost evidence was significant because the above witnesses drafted the documents which were the bases for the central discriminatory action against Complainant, and District Manager 1 relied on this documentation in taking action against Complainant. AJ 1 found that the destruction denied Complainant the opportunity to test the veracity of these witnesses and the reliability of the documents they prepared which the Agency based it's legitimate, nondiscriminatory reasons for its actions in this case. In a written order AJ 1 ruled that the typewritten logs and corresponding memoranda by District Manager 2, S1 and S2 were not reliable or accurate and that they would be construed to support Complainant's allegations in this case. At the hearing, AJ 1 further ruled that based on his sanction, S2 need not testify, and at times blocked the Agency's cross-examination of Complainant about the above typewritten logs and corresponding memoranda.
In his liability decision, AJ 1 characterized the above sanction as severe but warranted, and found it was enough to completely support the finding of reprisal based discrimination, but the litigation continued after its issuance. AJ 1 found that the seven day liability hearing showed that regardless of the sanction, the testimony of the harassers supported the finding of reprisal based harassment.
Specifically, in the three paragraphs below, AJ 1 found as follows: District Managers 1 and 2, and S1 were aware of Complainant's prior EEO activity, and more importantly, conversed about it while Complainant was on her detail and then on the PAP.3 The Agency, led by District Manager 1 and his subservient supervisors, immediately turned the settlement agreement into a weapon customized to remove Complainant from federal service. Complainant never had a chance in Jenkintown. District Manager 1 immediately began interacting with District Manager 2 regarding Complainant's settlement and his personal investment in opposing her allegations. District Manager 2's concerns about Complainant's performance were not supported by the evidence. The testimony of Complainant's statistical expert regarding VIP data supported that Complainant produced more work than the other Jenkintown Service Representative. Further, District Manager 2's criticisms of Complainant's performance included petty and forced matters.
Relying on District Manager 2's reports, the Area 1 Director returned Complainant to the Philadelphia Northeast Office. The PAP had little to do with Complainant's performance and everything to do with her prior protected activity. S1 testified that she documented how Complainant was failing the PAP when this was not true. S1 recanted essentially every allegation of poor performance, admitting the purported performance deficiencies did not exist and that Complainant did not need to be on a PAP. District Manager 1's improper guidance to his subordinate supervisors was evidenced from his own testimony during the hearing - he directed them to show him their affidavits in this case before they were submitted to the EEO investigator so he could "see if we were on the same page." The record supports a finding that District Manager 1 required his subordinate supervisors to be "on the same page" regarding Complainant's last few months of employment.
Even though the PAP was not the last purported performance improvement opportunity that Complainant would be subjected to before her termination, she would not have been available for the proposed termination had the Agency not unlawfully manipulated the PAP due to reprisal.
In October 2006, Complainant separately grieved her removal in the negotiated grievance process. At the July 2008, arbitration hearing, the Arbitrator ruled that the EEO complaint before us was filed on May 10, 2006, and Complainant alleged therein that she was harassed based on her race and retaliation for prior EEO activity, which included being placed on the PAP and PEP. At the hearing, the Arbitrator recounted AJ 1's March 18, 2008, order denying the Agency's motion to merge claims/remand the mixed case to the Agency because the complaint was not mixed and the Agency did not offer evidence to show Complainant was required to elect the EEO forum or the grievance process for the disposition of discrimination complaints.4 At the arbitration hearing the Arbitrator ruled that as a result of AJ 1's order, the EEOC had before it for resolution the issue of discrimination and retaliation regarding the Agency's actions prior to May 10, 2006, and hence he did not have jurisdiction over the same claims before the EEOC. The Arbitrator ruled that the claim before him was the termination itself, and the issue of discrimination and retaliation involving events after May 10, 2006, could be raised in arbitration since they were not included in the EEO complaint filed on May 10, 2006.
Following the arbitration hearing in 2007 and 2008, the Arbitrator issued a decision in November 2008, upholding the removal. The Arbitrator found that what Complainant viewed as constant criticism was, in fact, an effort by management to bring her performance up to an acceptable level, and Agency's determination that Complainant's performance was at the unacceptable level was supported by substantial evidence in the record. The Arbitrator found that the union's circumstantial evidence of a "convincing mosaic" of retaliation for prior EEO activity could not be considered because it related to the time period prior to the initiation of the PAP and continued up to the PEP, the same claim before the EEOC, and hence the union could not prevail on its retaliation claim.
Complainant timely appealed the Arbitrator's decision to the MSPB. In its May 11, 2009, decision, the Board accepted jurisdiction of the appeal, noting Complainant met the required prerequisite of alleging discrimination in connection with the underlying action. The MSPB found that the Arbitrator ruled that he would limit consideration of evidence of discrimination and reprisal to events which occurred after Complainant filed her EEO complaint. It ruled that because Complainant failed to object to this ruling, it was not preserved for review by the MSPB, and it would not address whether the Arbitrator's ruling was erroneous. The MSPB found that even if it found the above Arbitrator's ruling was erroneous, Complainant failed to prove the Agency removed her because of reprisal. It explained that Complainant failed to show that the Arbitrator's factual findings in sustaining the removal were in error, and affirmed the Arbitrator's decision. The Board gave Complainant the right to file a petition for review before the EEOC, Office of Federal Operations, which included the 30 day time limit and the address for filing.
The EEOC never docketed a petition for review from the MSPB's decision, nor sent acknowledgment letters to the parties stating a petition had been filed. Complainant alleged she timely filed a petition, which we will address below.
AJ 2 found that the liability hearing covered retaliatory and discriminatory harassment in which the Agency fabricated grounds to prevent Complainant's detail to Jenkintown from becoming permanent, placing her on a PAP, deciding she failed the PAP and ending with placing her on the PEP. He found that failing the PEP and the removal were mixed case issues. AJ 2 noted, however, that despite the limited jurisdiction of the EEOC liability hearing, all remedies issues in both the EEOC and mixed case Arbitration matter were fully litigated in the EEOC damages hearing, and the EEOC was the only forum which had a full record on all remedies issues, including for the termination. AJ 2 decided to rule on remedies for both the EEOC and mixed case, and apportion them between the EEOC case and the failure of the PEP and the termination, with the latter remedies being a provisional decision. AJ 2 reasoned that should the Arbitrator agree to reopen the mixed case due to a final ruling on the EEOC case, or should OFO decide to accept Complainant's petition for review of the May 2009, MSPB decision, it would save scarce judicial resources to have a ruling on all remedies matters on both cases.
Based on Complainant's testimony, contemporaneous medical notes on her, Complainant's contemporaneous diary, and the testimony of two of her co-workers and a union official, AJ 2 made various factual findings regarding the emotional pain and suffering Complainant sustained as a result of the discrimination. AJ 2 found that while Complainant had anxiety and depressive symptoms prior to being sent to Jenkintown such as chest pains, nightmares, sweating, sleeplessness and headaches, they subsided when she went to Jenkintown.
AJ 2 found the following: The better times stopped when Complainant returned to the Philadelphia Northeast Office, with a resumption of anxiety, nervousness, nightmares, sleeplessness, psychiatric treatment and medication. AJ 2 cited testimony of a co-worker that upon Complainant's return she looked like she was gut punched and she lost her spirit. Upon learning she was being placed on the PAP Complainant felt hopeless, angry, and so nauseous she felt like vomiting, and in response to the Agency's retaliatory conduct felt heart palpitations, chest pains, dizziness, sweaty palms, migraine headaches, and lost weight. Some of this was related to the discriminatory monitoring of her interviews, which humiliated her. Complainant was humiliated and felt treated like a dog when District Manager 1 yelled at her for borrowing someone's desk, even though she had permission to do so, to call her union representative. The retaliation Complainant experienced had a significant adverse relationship with her son, and her termination caused her sadness at not being able to provide for her son and to lose her religious faith.
But AJ 2 also found that Complainant was impeached in this case because she failed to mention car accidents in 2007 and 2008 in her deposition and testimony for damages, and failed to report more than $3,000 in 2007 income to the Internal Revenue Service (which came up in the remedies part of the case). The Agency uncovered evidence that Complainant had a car accident in September 2007, and she signed a civil action complaint under oath that as a result thereof she and her son suffered great physical pain and suffering, and great inconvenience in carrying out their daily activities. Complainant indicated therein that she suffered cervical and lumbar strain and sprain, subluxations (cervical/sacrum), tension headaches, myofascitis, and rotator cuff syndrome and had to undergo medical treatment. AJ 2 found that in the accident trial Complainant testified the accident caused neck pain which made it difficult to sleep, could not stand, walk, lie down or drive long distances for a period after the accident, and stopped playing the piano, but also claimed she stopped playing the piano due to discrimination in this case. AJ 2 found that Complainant brought her accident case to trial and won a $100,000 verdict for her and her son. AJ 2 found that Complainant's testimony that she did not disclose this car accident during her deposition because it was not severe and no one was hurt was not credible since she sued for damages from the accident claiming otherwise.
AJ 2 found that while Complainant hurt her credibility, she did not completely destroy it, and her impeachment would impact the amount of her award. AJ 2 awarded Complainant $35,000 in non-pecuniary damages, apportioned as $15,000 "to this case" and $20,000 to the PEP and termination, the latter of which was contingent. In so doing, the AJ cited Smith v. United States Postal Service, EEOC Appeal No. 0720070031 (Dec. 7, 2009) ($30,000 in non-pecuniary damages where complainant suffered from emotional harm in the form of humiliation, harassment, sleeplessness, and feelings of uncertainty about her job and career (for 21/2 years), and a relapse of depression).
AJ 2 awarded Complainant $135 for three visits to her psychiatrist in March 2006, September 7, 2006, and October 19, 2006. AJ 2 reasoned that these three visits were clearly necessary due to the job stress caused by the unlawful discrimination found in this case. AJ 2 awarded Complainant for charges for two Sertraline prescriptions, a generic form of Zoloft, filled on September 12, 2006 ($139.98) and October 16, 2006 ($129.90).
AJ 2 also awarded Complainant additional provisional relief in connection with the mixed portion of her case -- reinstatement, back pay with interest,5 various rulings on mitigation of back pay and evidence thereon, and additional pecuniary damages.
In addition, AJ 2 ordered the Agency to consider training and discipline. AJ 2 also ordered the Agency to rescind all documents related to the PAP and the decision to place Complainant on the PEP, and granted the same provisionally with respect to Complainant's performance on the PEP, her failing it, and the decision to terminate her from the Agency.
AJ 2 awarded Complainant attorney fees unconditionally in the amount of $348,814.78, and provisionally for the mixed case (remedies work) in the amount of $62,195.83. He awarded Complainant $36,711.52 in costs. In arriving at these figures, AJ 2 made various deductions from the requested fees and costs. Most saliently, this included cutting in half the requested attorney fees for drafting the closing argument brief following the liability hearing from 227.7 hours or $56,558 - more than 51/2 weeks - to $28,279, an across the board reduction of 5% since clerical tasks were embedded in numerous time entries, and a 10% across the board reduction to fees for the liability portion of the case to take into account unsuccessful claims -- denial of awards and two non-selections. Complainant's attorneys did not expend time seeking remedies for these unsuccessful claims. In making the 10% reduction, AJ 2 noted that Complainant's attorney already "no charge[d]" some of this work.
On appeal the Agency argues that AJ 1 erred in imposing any sanction against it and it was overbroad. It argues, in essence, that Complainant's performance was unacceptable. The Agency argues that AJ 2 erred in awarding any non-pecuniary damages because the evidence did not support that the discrimination exacerbated any emotional pain and suffering she had prior to her detail to Jenkintown and her credibility was destroyed - a reference to the automobile accident and tax return matters. The Agency adds that AJ 2 should not have used the borrow desk incident to bolster damages since AJ 1 did not find discrimination on this matter. The Agency argues that AJ 2 erred in awarding costs for psychiatric visits and filling prescriptions in September and October 2006, since this was after the relevant period in this case which ended with Complainant's placement on the PEP (in May 2006). Regarding the March 2006, psychiatric visit, the Agency argues there is no causal connection linking Complainant's pre-existing conditions and her alleged medical problems. The Agency argues that no fees and costs should be awarded because the discrimination finding was improper, and Complainant should not have been awarded any relief. In the alternative it argues that AJ 2's across the board reduction of 10% on all liability attorney fee work was too low, and it should be 25%.
On appeal, Complainant argues that she is entitled to an award of far more than $35,000 in non-pecuniary damages, and the record does not support a reduction in damages due to Complainant being impeached. In her June 19, 2014, appeal brief, Complainant argues that she timely filed a petition for review from the MSPB's May 2009, decision sustaining her removal. She submits a postal return receipt, initialed by a person in the EEOC Headquarters' mail room, showing receipt on June 16, 2009, of correspondence sent by the union and addressed to the Office of Federal Operations. She argues that she is entitled to reinstatement with back pay, and that AJ 2 erred in his calculation of back pay - the award should be enlarged in various ways.
Both parties filed briefs opposing the other parties appeals.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999). The above language applies to the factual findings of AJ 1. It does not apply to AJ 2's factual findings because he did not preside at the hearing on remedies. AJ 2's factual findings are subject to a de novo review standard. 29 C.F.R. � 1614.405(a).
Sanction Against the Agency
Pursuant to 29 C.F.R. � 1614.109(f)(3), an AJ may sanction a party for failure to provide requested relevant information, to include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. Hale v. Department of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission has determined that delegating to its AJs the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy that will effectuate the policies of the Commission. Cosentine v. Department of Homeland Security, EEOC Appeal No. 07A40114 (Aug. 9, 2006). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his or her discretion to impose a harsher sanction. See Hale. Agencies have a duty to maintain pertinent evidence upon receiving notice that a complainant has initiated the EEO process. See 29 C.F.R. � 1602.14. As the destroyed evidence was relied on to support a termination, the obligation to preserve it commenced when it was created, and was extended by the filing of the complaint. Id. While the record shows the destruction of much of the evidence was deliberate, it does not show it was in bad faith. But Commission's regulations do not require a finding of bad faith. See Cosentine.
In Cosentine, the selecting official took notes, including a matrix to compare and contrast the qualifications of all the candidates, as well as interview notes, which were not maintained. As sanction for this missing evidence, the AJ drew an adverse inference against the agency, and based on this concluded the complainant was better qualified than the selectee and found discrimination. The Agency argued that the AJ erred in drawing the adverse inference regarding the destroyed documents, asserting that this information was otherwise part of the record - the missing matrix was based on the candidate applications, which were in the record. The Agency argued that when considered along with the investigative affidavits of the responsible agency officials, the record contained the same information as reflected in the destroyed documents. The EEOC found that the appropriate adverse inference for the AJ to have drawn was that the missing information would have reflected unfavorably on the agency.6
We find AJ 1 did not abuse his discretion in finding that the destruction of the observation notes and, as applicable, emails by District Manager 2, S1 and S2 denied Complainant the opportunity to test the veracity of these witnesses and the reliability of the typewritten documents they prepared upon which the Agency based it legitimate, nondiscriminatory reasons for its actions in this case, and accordingly the typewritten logs and corresponding memoranda by District Manager 2, S1 and S2 were not reliable or accurate and that they would be construed to support Complainant's allegations in this case. This documentation was relied on in terminating the detail, placing Complainant on the PAP and determining she failed it, and placing her on the PEP.
AJ 1 acted within his discretion to the extent he found S2 need not testify because the documents she would testify about were already being construed in Complainant's favor. These documents were relied upon in placing Complainant on the PEP. The Agency argues S2 would have also testified about her decision to reprimand Complainant about the permission to use the desk incident -- something which did not involve the destroyed notes. We need not rule on this matter because, as found below, the desk incident does not impact the remedies awarded in this case.7
Finding of Discrimination
We agree with AJ 1's finding that the sanction regarding the documents was enough to support the finding of reprisal based discrimination. Further, while we agree with the Agency's contention that District Manager 2's typewritten observations on their face included substantive deficiencies in Complainant's performance, AJ 1's factual findings which led to the reprisal finding was supported by substantial evidence. Specifically, these factual findings were District Manager 1 poisoning the well with District Manager 2 regarding Complainant being detailed to Jenkintown, District Manager 2's comments on Complainant's performance in Jenkintown included matters which were petty and forced, the evidence by the statistical expert that Complainant was more productive than the second Service Representative in Jenkintown, S1's remarkable recantation of her testimony that purported performance deficiencies she assessed did not exist and at one point when questioned about some of them admitted they did not warrant a PAP, and the above referenced sharing of affidavits evidenced that District Manager 1 pushed his subservient supervisors to be on the same page as him (regarding retaliating against Complainant).
AJ 1's finding of discrimination is affirmed.
Removal claim and related Remedies
Following an Arbitrator's decision, Complainant appealed her removal to the MSPB, which in accepting it found Complainant met the required prerequisite of alleging discrimination in connection with the removal. The MSPB made an evidentiary ruling regarding Complainant's reprisal claim, and found that regardless Complainant failed to prove she was discriminated against based on reprisal for prior EEO activity when she was removed. In its May 11, 2009, decision, the MSPB gave petition rights to the EEOC, Office of Federal Operations.
In her June 19, 2014, appeal brief, Complainant for the first time raises her contention with the Office of Federal Operations that she timely filed a petition to review the MSPB's decision with this office. This is four years after she filed her petition. We concede that Complainant now submits a postal return receipt initialed by a person in the EEOC Headquarters' mail room, showing receipt on June 16, 2009, of correspondence sent by the union and addressed to the Office of Federal Operations.
Assuming the correspondence was a petition for review, we decline to accept it at this point. Our office never docketed a petition, and we have no record thereof. Further, our office never sent the parties any letters acknowledging receipt of a petition, which is normal practice for appellate offices. Yet Complainant did not get in touch with this office in an attempt to get her petition docketed or acknowledged until four years past. Given this, we find that laches attaches to Complainant's petition to review the MSPB's May 2009 decision. We make this finding because Complainant did not act diligently in pursuit of her petition to review case. O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (Dec. 27, 1990) (request for reconsideration denied as untimely when complainant waited over two and a half years to file).
The MSPB has already issued a decision sustaining the removal, and for the reason above we decline to consider whether to concur or differ with the MSPB's decision, which is the procedure for obtaining review of the MSPB's findings regarding reprisal. 29 C.F.R. � 1614.303 & .305. Accordingly, we will not address Complainant's removal claim nor award any remedies related to the removal - e.g., reinstatement, back pay, expunging documents related to failing the PEP, and the provisional damages and attorney fees related to Complainant's removal.
Damages
We agree, for the reasons set out by AJ 2, that Complainant sustained apportioned non-pecuniary damages of $15,000 in connection with the case before us (not mixed).
We acknowledge that AJ 1's finding of discrimination does not appear to include the permission to use desk incident. In setting forth the issue upon which he found discrimination, AJ 1 defined it as the Agency subjecting Complainant's "work" to consistent and unwarranted scrutiny which resulted in her being placed on the PAP and, and consequently, the PEP. We find, however, that even without the desk incident, Complainant still proved she sustained non-pecuniary damages of $15,000. AJ 2 cited this incident as one of many humiliating incidents - including the much more frequent retaliatory monitoring of her work.
We also affirm AJ 2's award of $404.88 in pecuniary damages. While the case before us does not include Complainant failing the PEP, it did include scrutinizing her work while on the PAP and PEP.
Attorney fees and costs
AJ 2's unconditional award of $348,814.78 in attorney fees and $36,711.52 in costs is affirmed, for the reasons set forth in AJ 2's decision. In arguing for a further across-the-board reduction in attorney fees, the Agency notes that Complainant only prevailed on one of three basis of discrimination and one incident of discrimination - placement on the PAP/PEP. This argument is not persuasive. Generally, the Commission will not reduce an attorney fees award on a claim when the complainant prevails on less than all the alleged bases, because the claim likely involves a common core of facts which must be developed irrespective of what bases might be at issue. Rucker v. United States Postal Service, EEOC Appeal No. 01A45275 (Dec. 15, 2005). Likewise, while AJ 1 did not rule on every incident raised to support Complainant's harassment claim, such as the permission to use desk incident, Complainant prevailed on her harassment claim. More importantly, AJ 2 found that the most significant and frequent incidents in the hostile work environment claim were discriminatory -- the termination of the Jenkintown detail, return to the Philadelphia Northeast Office, placement on the PAP and PEP, and intense scrutiny of her work.
The remainder of the equitable relief will be addressed in the order below.
ORDER
The Agency is ordered to take the following remedial actions:
1. Within 45 calendar days after this decision becomes final, the Agency shall make payment to the law firm which represented Complainant in this case in the following amounts:
a. $15,000 in non-pecuniary damages for Complainant.
b. $404.88 in pecuniary damages for Complainant.
c. $348,814.78 in attorney fees.
d. $36,711.52 in costs.
2. The Agency shall expunge all documents related to the PAP and decision to place Complainant on the PEP form Complainant's Official Personnel File and SF-7B Extension file.8
3. The Agency shall provide training to S1 and S2 on how to recognize and prevent reprisal discrimination for prior EEO activity.
4. The Agency shall consider disciplining S1 and S2 for their discriminatory conduct.9
The Agency shall complete item 2 above within 90 calendar days after this decision becomes final. It shall complete items 3 and 4 above within six months after this 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 of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Jenkintown District Office and Philadelphia Northeast Field Office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)10
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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.
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 (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, Director
Office of Federal Operations
October 29, 2015
__________________
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.
2 Complainant does not appeal these findings of no discrimination.
3 S1 testified that when Complainant returned from Jenkintown, District Manager 1 verbally informed her that Complainant filed an EEO complaint against him, and discussed the allegation therein. Liability HT 4, at 61, 63 - 65. S1 testified the complaint was described as a sexual harassment claim, but it may have actually regarded monitoring (staring).
4 In her March 20, 2008, opposition to the Agency's motion, Complainant argued, inter alia, that she did not raise termination in her formal complaint, and at no time amended her EEO complaint to include the removal. Complainant argued that she made an election of forums on the termination to proceed under the collective bargaining agreement covered by 5 U.S.C. � 7121.
5 AJ 2 also awarded Complainant "front pay" until she was reinstated.
6 In Cosentine, the EEOC reversed the AJ's finding of discrimination. It reasoned that although the selecting official's testimony was based on a contemporary review of the applications, it was corroborated by them. It found that a review of Complainant and the selectee's application did not show that the complainant's qualifications were plainly superior to the selectee.
7 AJ 2 did not order that the reprimand be expunged from Complainant's personnel files, and on appeal Complainant does not challenge this.
8 The Agency is not required to expunge these documents from its litigation files because, for example, litigation on this and the mixed case may continue.
9 The record reflects that District Manager 2 is retired. In his damages decision AJ 2 indicated District Manager 1 was no longer with the Agency.
10 This applies to all attorney fees and costs incurred after AJ 2 made his ruling thereon on March 11, 2014.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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