[Redacted], Anne M., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Jun 2, 2022

Appeal No. 2021004318 (E.E.O.C. Jun. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anne M.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2021004318 Hearing No. 520-2017-00018X Agency No. DOI-NPS-15-0965 DECISION Following its July 26, 2021, final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(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. BACKGROUND During the period at issue, Complainant worked as a Housing Manager, GS-9, at the Agency’s Gateway National Recreation Area in Staten Island, New York. Complainant was also a member of the U.S. Army Reserve, and she was deployed to Afghanistan from September 2013 to February 2014 and again from May 7, 2014 to April 25, 2015. Following both her deployments, Complainant returned to the Agency. On December 30, 2015, Complainant filed a formal EEO complaint that consisted of the following claims: 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. 2021004318 2 A. Whether Complainant was discriminated against and subjected to harassment based on race/national origin (Black Afro-Panamanian) and color (black) when: 1. On July 6, 2015, upon Complainant’s return from deployment, she was informed that she would be working in the budget office instead of returning to the housing manager position, which was being filled by a temporarily promoted Caucasian female. 2. On July 6, 2015, Complainant was segregated to the budget office while the temporarily promoted Caucasian female occupied her office. 3. Upon Complainant’s return from deployment, she became aware that her supervisor (S1) had instructed the timekeeper to annotate her timecard as regular LWOP, and not military leave without pay, which caused tremendous debt. 4. Complainant was subject to inappropriate comments and behavior from S1. 5. Complainant was required to take training that she had taken several times for a position she has held for over 13 years, but her Caucasian counterpart was not required to take the training. B. Whether Complainant was unlawfully retaliated against for engaging in protected EEO activity (instant complaint)2 when: 6. Complainant was offered a 120-day detail as the property manager, and when she refused, S1 became upset and informed her that there would be two housing managers. 7. Complainant was told by S1 that she would be going out to Sandy Hook, New Jersey two days per week, and when Complainant asked why the temporarily promoted housing manager did not have to go, Complainant did not receive a reply. 8. Complainant was not given the opportunity to apply for the property manager position. C. Whether Complainant was discriminated against and subjected to harassment in retaliation for engaging in protected EEO activity (instant complaint) when: 2 The record also reflects that Complainant was a witness in a prior EEO complaint against S1 filed by another co-worker (CW1) in June 2013, who also raised race as one of the bases of her complaint. 2021004318 3 9. On February 8, 2016, S1 sent an email with false allegations concerning an inspection finding and her interaction with tenants. 10. S1 repeatedly refused to change the lock on Complainant’s office door and refused to provide Complainant with a key to S1’s old office. 11. On March 7, 2016, Complainant was ordered to accept S1’s instant chat request while other employees were not ordered to do so, and Complainant was subsequently threatened with consequences if she continued to refuse to accept the request. 12. S1 continues to copy Complainant on her email after being told not to contact her directly. After an investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Following a hearing held on October 8 - 10, 2019, the AJ issued a decision concluding the evidence established that the Agency subjected Complainant to discriminatory and retaliatory harassment based on Complainant’s race, color, and reprisal for engaging in protected EEO activity. First, the AJ determined, in pertinent part, that the Agency’s articulated reasons for failing to return Complainant to her Housing Manager position after she returned from her deployment, and requiring Complainant complete training before resuming her Housing Manager duties were pretext for unlawful discriminatory harassment based on race and color. The AJ reasoned that when Complainant returned to the office in July 2015 from her military deployment, the evidence did not support the justifications provided by the Agency to support S1’s decision to: (1) place Complainant in the Budget Office instead of returning her to her original Housing position, and (2) extend the temporarily promoted Caucasian employee’s promotion to Housing Manager for another year, effectively preventing Complainant from performing her regular duties as the only Housing Manager. The AJ further reasoned that there was insufficient evidence of a work backlog to substantiate S1’s decision to have two Housing Managers (the temporarily promoted employee and Complainant) and noted that there had previously only been on Housing Manager in the Housing office. While Complainant’s salary was not impacted by S1’s decision to place her in the budget office, the AJ noted that, by federal law, Complainant, as an Army Reservist, had the right to return to her original position following her deployment. Regarding training, the AJ determined that the record supported that S1 required Complainant to complete specific training to resume her Housing Manager position. However, the record supported that the temporarily promoted Caucasian employee was not required to complete the same training. The AJ also acknowledged that the Agency offered Complainant a promotion to a GS-11 Project Manager position instead of her original Housing Manager position. 2021004318 4 However, the AJ noted that this offer was a 120-day temporary promotion, not a permanent position, and Complainant rightfully rejected this offer because there was no guarantee that she would be converted to a permanent position once the promotion ended. Finally, the AJ determined that S1 had a history of making negative and derogatory comments about Black and Hispanic people, and the record supported that his actions towards Complainant were based on this discriminatory animus. Regarding Complainant’s retaliatory harassment claims, the AJ dismissed Complainant’s claim that she was retaliated against when S1 informed her of his decision to have two Housing Managers after she rejected his offer of a 120-day temporary promotion. The AJ indicated that Complainant asserted that S1’s actions were retaliatory because she had participated as a witness in a 2013 EEO complaint filed against S1 by another co-worker (CW1) who alleged, in pertinent part, racial discrimination. However, the AJ determined that too much time passed between Complainant’s June 2013 participation and S1’s July 2015 offer to form the necessary inference for retaliatory discrimination. Therefore, the AJ dismissed this claim. However, the AJ found that the Agency subjected Complainant to retaliatory harassment when S1 required only Complainant to go to Sandy Hook, New Jersey; when S1 denied Complainant the opportunity apply for the property manager position; when S1 sent an inspection findings email requesting that Complainant not inspect S1’s or the promoted Caucasian employee’s unit; when S1 denied Complainant the ability to put locks to the door of the smaller office she was assigned and refused to provide Complainant keys to the larger office where her files were located; when S1 demanded that Complainant respond to his instant messages (IMs); and when S1 assigned laundry duty to Complainant. The AJ explained that Complainant had engaged in protected EEO activity when in July 2015, she opposed S1’s decision to allow the temporarily promoted Caucasian employee to remain in Complainant’s prior position after Complainant returned from deployment. Essentially, Complainant’s opposition amounted to her reporting to upper management, as early as July 2015, allegations that she was being subjected to a discriminatory hostile work environment by S1. Complainant’s opposition eventually resulted in the Agency opening an internal management inquiry regarding Complainant’s allegations. The AJ determined that S1 retaliated against Complainant by requiring solely Complainant, and not the temporarily promoted Caucasian employee, to conduct regularly scheduled site visits as Sandy Hook. The AJ noted that while S1 had offered Complainant a temporary promotion to the GS 11 Property Manager Position and determined that she was qualified, and he retaliated against Complainant when S1 failed to consider her for this same position when S1 sought to fill it as a permanent position. The AJ further determined that S1 retaliated against Complainant by moving her office location and by denying her keys to access to her prior, larger office on the second floor which S1 began occupying following Complainant’s deployment. As a result, Complainant had to wait until S1 was available in order to access her files stored in the larger office. 2021004318 5 The AJ indicated that S1 retaliated against Complainant when he sent an email implying that Complainant was unable to fairly conduct unit inspections when those inspections involved his and the temporarily promoted Caucasian employee’s unit. The AJ also found that S1 retaliated against Complainant when he required that she respond to his IMs in March or May 2016 while the Agency was conducting an investigation into Complainant’s complaints against S1. The AJ noted that Complainant had agreed to communicate with S1 via email instead. However, S1 insisted that she respond to his IMs and S1 continued to contact Complainant even after he was instructed not to contact Complainant while the investigation was pending. Lastly, the AJ determined that S1 retaliated against Complainant when in 2016, he left her a large bag of dirty linens for Complainant to clean. Overall, the AJ determined that S1’s articulated reasons for his actions were not credible and his actions displayed retaliatory animus towards Complainant. By way of relief, the AJ awarded Complainant $80,000 in non-pecuniary compensatory damages for the emotional harm Complainant sustained from November 2015 through the date of the scheduled hearing. The AJ also ordered mandatory training for S1 and the posting of a notice of the findings. The Agency issued a final order rejecting the AJ’s findings of discrimination. The Agency then filed the instant appeal challenging the AJ’s finding of discrimination and order for relief. ANALYSIS AND FINDINGS Preliminary Matter - AJ Bias On appeal, the Agency argues that the AJ exhibited bias during the pre-hearing and hearing process. Specifically, the Agency asserts that the AJ had agreed to postpone deadlines for dispositive motions until August 2019, because the Agency and Complainant agreed to participate in a confidential settlement conference late July 2019 before another EEOC administrative judge. The Agency contends that the AJ’s decision to issue an Order Scheduling Hearing on August 8, 2019, shortly after the settlement conference had concluded, implies that the AJ was privy to the confidential settlement conference discussions and displayed bias in her decision to immediately schedule a hearing without allowing the parties to file dispositive motions as initially planned. The Agency further asserts, in pertinent part, that the AJ’s bias continued during the hearing when she ordered the Agency to produce additional witnesses, which Complainant had not included, with less than a day’s notice. In addition, the Agency argues that the AJ’s language used in her decision is additional evidence of personal bias. We note that the AJ addressed the Agency’s concerns regarding whether she was privy to discussions had during the confidential settlement conference. During the October 10, 2019 hearing, the AJ acknowledged that settlement conference AJ informed her that she did not believe that the Agency was acting in good faith. However, the AJ clarified that the settlement conference AJ did not share the details of what was discussed during the settlement conference. 2021004318 6 The AJ also noted that her decision to hold a hearing instead of waiting to receive a motion for summary judgment from the Agency was based on her review of the report of investigation and determination that there were material issues in dispute. Consequently, the AJ reasoned a motion for summary judgment would be a “waste of time” and there was no need to further delay beginning the hearing process. Additionally, there are instances during the hearing where the AJ requested testimony from additional witnesses and even provided direct and cross examination of several of the witnesses. The AJ noted that Complainant was not represented by an attorney, and that Complainant should not be penalized for not having a legal background. The AJ further noted that she included the additional witnesses who had already provided affidavits in the report of investigation. The AJ explained that the record contained affidavits of several witness with different views, different facts, and different recollection of facts. Consequently, the AJ determined that it was important to ask these individuals questions to better develop the record. Therefore, given the circumstances of this case, we not find evidence that the AJ exhibited bias during the hearing process. Merits of the Claims 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). Discriminatory Harassment (Claim A) To establish a claim of discriminatory environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2021004318 7 In other words, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race/national origin or color. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record indicates that the AJ properly determined that Complainant established a prima facie case of discriminatory harassment based on race and color. It is undisputed that Complainant identifies herself as Afro-Panamanian (Black-Hispanic). Additionally, the record reflects that S1 (Caucasian, white) had a history of making inappropriate comments about Black and Hispanic employees at work. Specifically, in June 2013 Complainant participated as a witness in an EEO complaint filed by CW1 (Black, female) who alleged, in pertinent part, racial discrimination against S1. In her deposition, Complainant testified that S1 stated, “You know how, you know, some of these Black females are?” When referencing CW1, Complainant testified that S1 stated, “[CW1] is a little bit crazy. . . . [CW1] is afraid of me because I’m White and I am a racist and I don’t like Black Hispanics.” In another instance, Complainant stated that S1 made a derogatory comment about Hispanics in another conversation with a maintenance employee (Hispanic) that Hispanics were “nasty,” based on his grandmother living in public housing. Complainant indicated that S1 assumed that all housing projects were “dirty and nasty . . . because [they were] housed by Blacks and Hispanics.” Complainant stated that while she did not participate in the conversation, she observed that the maintenance worker was offended by S1’s comment. We acknowledge that these statements were not directed toward or about Complainant. Nevertheless, S1 said them in Complainant’s presence, and the comments were about other individuals of the same race and color as Complainant. As explained in further detail below, the record reflects that S1 subjected Complainant to unwelcome conduct, based on Complainant’s race and color, that unreasonably interfered with her work environment and created an intimidating, hostile, or offensive work environment. The record reflects that Complainant worked in the Housing Office at the Gateway National Park which had two positions: Housing Manager and Housing Assistant. The record indicates that Complainant had served as the Housing Manager on or about 2009/2010, and she was consistently identified by S1 as a good employee and a “top performer.” As previously stated, Complainant was also an Army Reservist and would leave the office when ordered to deploy. From April 2014 through July 2015, Complainant was deployed to Afghanistan. During her deployment, the Housing Assistant retired. The retirement of the Housing Assistant meant that no one was assigned to the Housing Office, therefore prompting S1 to advertise for the Housing Manager position vacancy. The position was advertised as a “Full- Time - Temporary Not to Exceed (NTE) 1 year” position. 2021004318 8 Although S1 testified that management had the discretion to extend the position another year, there was a general understanding that the position vacancy was temporary. Specifically, as an Army Reservist, Complainant, by federal law, had the right to return to her Housing Manager position following her return from her deployment. Consequently, when Complainant first deployed to Afghanistan in September 2013, she resumed her position as Housing Manager when she returned to the office in February 2014. Additionally, the record reflects that S1 was Complainant’s supervisor during her first deployment and he was himself a thirty-year veteran, and more likely than not, was aware of Complainant’s right to return to her position post- deployment, given his personal experience and knowledge as a veteran. Ultimately, S1 selected a Data Management Technician, GS 7 (Selectee) (Caucasian, white) from the Asset Management division to be temporarily promoted to the Housing Manager, GS 9 position effective July 14, 2014 with a “not to exceed” date of July 13, 2015. The terms of this temporary promotion, as indicated on the Selectee’s SF-50, required her return to her regular position after her promotion to the Housing Manager position ended. In anticipation of her return to the office, the record reflects that Complainant notified management as early as May 2015, that she had orders for her return from Afghanistan and that she would report to work on July 6, 2015. The record further reflects that S1 was aware of Complainant’s return to the office as early as May 27, 2015. On May 27, 2015, S1 responded to his supervisor’s (S2) inquiry regarding Complainant’s return and the end date of the Selectee’s temporary promotion, and stated: [the Selectee’s] promotion will run through July 26 [2015]. [Complainant] comes off orders on 5 July [2015] and has 30 days to return to the park. We may need a two-week extension. Here, S1 acknowledged that he knew that Complainant was returning to the office and he testified that he assumed that she had 30 days from July 5, 2015 to return to the office,3 and consequently, he extended the Selectee’s temporary appointment from July 13, 2015 to July 26, 2015 with a possible additional two-week extension based on when he believed Complainant would return.4 However, this explanation does not address why S1 requested and approved on July 7, 2015, the day after Complainant reported to the office, the Selectee’s temporary promotion for an entire year. 3 However, during the hearing, S1 testified that it was not until July 6, 2015, that he knew Complainant was “actually coming back.” 4 We note that this explanation is counter to Complainant’s testimony that she informed S1’s Administrative Assistant in May 2015 that she would return to the office on July 6, 2015. 2021004318 9 At most, S1 expected Complainant’s arrival no more than one month after July 5, 2015, but he failed to indicate why he needed, at the time, to keep the Selectee in Complainant’s position another year after Complainant physically reported to the office.5 Consequently, when Complainant reported to work on July 6, 2015, S1 was occupying Complainant’s old office and the Selectee was occupying the other Housing office, and S1 informed Complainant that the Selectee was still performing duties as the Housing Manager, and the two would share the position. However, there had never before been two Housing Managers working in the Housing Office, and Complainant had expected to return to her Housing Manager position like she did when she returned from her prior deployment in 2013 - 2014. But this time, Complainant returned and was assigned another office that was smaller than her old office and her office was located on a different floor in the Budget Office because there was no room for in the Housing Office. Instead of returning Complainant to her Housing Manager position, the record indicates that S1 offered Complainant a promotion, a GS-11 Program Manager position, which Complainant ultimately rejected. However, we note that the Program Manager position was a temporary position not to exceed 120-days. Consequently, Complainant’s employment in that position was not guaranteed once the promotion ended.6 In contrast, Complainant’s Housing Manager position was a permanent position. Additionally, as previously stated, Complainant had the right, pursuant to federal law, to return to her original Housing Manager position after she returned from her deployment, but management failed to honor this right when Complainant was forced to share her position with the Selectee and was moved to the Budget Office. S1 asserted that two Housing Managers were needed in July 2015 because of a work backlog. However, the record reflects that this proffered reason was not credible. Complainant testified that there was no backlog in the Housing Office before her deployment and she observed no backload when she returned to the office in July 2015. Complainant explained that the only issues she noticed when she returned were discrepancies in the system which occurred during the time she was deployed and while the Selectee was the Housing Manager. Complainant explained that the discrepancies resulted in the region having to conduct Housing inspections and remeasure the units. Additionally, the record reflects that upper management was still uncertain why there were two Housing Managers as late as December 2015, approximately six months after Complainant had returned to work. The record reflects that S1 was directed by the Superintendent to outline the specific duties for Complainant and the Selectee which S1 submitted on December 3, 2015. 5 The record reflects that the Selectee did not return to her regular position until April 2016. 6 Complainant testified that that she was aware of a prior situation where an employee accepted a temporary promotion but was not converted to a permanent position after the promotion ended. 2021004318 10 However, Complainant asserted that she could not perform Housing Manager duties because S1 stationed her in the Budget Office. Nevertheless, the Superintendent requested, as directed by the regional office, on December 8, 2015, that S1 explain in detail why the position was created as separate from the existing position. Consequently, the record indicates that it was not clear in July 2015, at the time that S1 extended the Selectee’s detail, the rationale for two Housing Manager positions when there had previously only been one Housing Manager in the Housing Office. Furthermore, Complainant’s placement in the Budget Office unreasonably interfered with her work environment and created an intimidating, hostile, or offensive work environment. Here, Complainant knew she could perform her job and she had performed her job without issue for several years. S1 even acknowledged that Complainant was a good performer. However, when Complainant returned to the office, she was sent to the Budget Office and instructed to answer the phones and file, none of which were included in her Housing Manager duties. Complainant further explained that S1 expressed his concern that, based on his experience, “when soldiers come back from deployment, they turn into drug addicts or alcoholics” as a possible reason for placing Complainant in the Budget Office, where she remained until September 2015.7 Essentially, Complainant was prohibited from performing her job, a job that she loved and referred to as her “baby.” Instead, Complainant was required to watch the Selectee perform the Housing Manager duties in an extended capacity even though S1 had acknowledged that the Selectee had significant difficulties performing her Housing Manager duties. Complainant indicated that she had looked forward to returning to the Housing Office following her deployment, but when she returned her “life became hell, and she did not want to be there no more.” Moreover, despite S1’s assertions that Complainant had been a “top performer” under his supervision, S1 determined that Complainant could not resume her Housing Manager position when she returned without completing training. S1 testified that after Complainant returned to the office, he wanted her to complete training on two new programs that were implemented when Complainant left for Afghanistan. The two new programs were the Financial Business Management System (FBMS) and the Accounting and Fiscal System (AFS). S1 asserted that the Selectee had already completed both trainings. However, the Selectee testified in her affidavit that she was “going to go to” housing manager training which implies that she did not complete this training. Additionally, the Selectee noted that she had completed training in the Facility Maintenance Software System (FMSS) which appears to be different from the FBMS training S1 required of both employees. 7 S1 denied making this statement at the hearing, however, S1 indicated that he was concerned about Complainant’s attendance. Specifically, S1 stated that he was concerned that Complainant was not working a full eight-hour workday. However, despite these concerns, S1 acknowledged that he never disciplined Complainant for “anything” during the time he supervised her from December 2011 through March 2016. 2021004318 11 Additionally, the Selectee indicated that she was generally confused as to what training S1 wanted Complainant to complete, because the housing system was now on the Agency network and was no longer a stand-alone system. Consequently, the record fails to support that these trainings were necessary or required as S1 asserted. And all the while Complainant continued to address the ongoing issue with management regarding her placement in the Budget Office, Complainant also discovered, upon her return, that she was incorrectly coded as regular LWOP during the period she was deployed, instead of LWOP-military. In order for her to receive an initial fifteen days plus an additional twenty-two days of leave for each deployment to a warzone, her absence from work had to be coded to indicate that she was on deployment. Consequently, Complainant explained that she provided S1’s Administrative Assistant (AA) her order papers so that the appropriate codes could be used to properly record her deployment. Although S1 denied any acknowledgement of a code designated for military deployments, Complainant asserted that S1 was aware of this protocol given that he was a veteran and given that Complainant knew of another individual, in a different division but under S1’s supervision, whose paperwork was completed without issue when he deployed for military service. Additionally, the AA testified that she had received Complainant’s deployment orders, but she was instructed by S1 to mark Complainant on regular LWOP rather than military LWOP. As a result of the error, Complainant explained that her Thrift Savings Plan was impacted because it was not tracking that she was deployed, and she incurred a debt due to having had taken out a loan at the time. The record reflects that as soon as Complainant returned to the office, she complained to management and expressed her dissatisfaction regarding the above-mentioned issues including her placement in the Budget Office and her inability to resume her Housing Manager duties post deployment. Several management officials, including upper management, were aware that Complainant was unhappy with the situation. Notably, in July 23, 2015, the Budget Officer sent the Superintendent an email, titled “Pandemonium,” explaining the harassing situation between Complainant and S1. The Budget Officer stated, in pertinent part, There is a major problem in your park right and it is getting much worse. I am referring to the situation with [Complainant]. There is a meeting today in your office at 2:00 PM to discuss her situation. I spent an hour with [Complainant] this morning. She is a total wreck, and emotional wreck. She has been crying and it took everything in my power to calm her down. . . . [Complainant] asked me to go to the meeting this afternoon in support of her because she cannot fight any longer. [S1] has forbidden me from attending. I told [S1] if I receive an invite from you, that I would attend. Despite upper management’s awareness of this situation, the Agency failed to take prompt and immediate remedial action. Here, Complainant remained displaced from her original office for an entire month. S1 testified that there were two Housing Managers until December 2015, and the Selectee’s temporary promotion to the Housing Manager did not end until April 2016. 2021004318 12 The questionable nature of S1’s decision to extend the Selectee’s temporary promotion the day after Complainant’s arrival at the office, in light of the Selectee’s performance difficulties, as well as S1’s failure to return Complainant to her Housing Manager position, and the Agency’s failure to promptly remedy these issues are abundantly sufficient to support an inference of discriminatory harassment based on race and color. As there is no legitimate explanation for S1’s decision, we are left to conclude that the AJ properly determined that discriminatory animus played a role in S1’s failure to return Complainant to her Housing Manager position when she returned from her deployment. Retaliatory Harassment (Claims B and C) EEOC Regulation 29 C.F.R. § 1614.101(b) provides that no person shall be subject to retaliation for opposing any practice made unlawful by Title VII, the Agency Discrimination in Employment Act, the Equal Pay Act, or the Rehabilitation Act, or for participating in any stage of administrative or judicial proceedings under those statutes. In order to establish unlawful retaliation, an individual must initially be able to show that he or she engaged in prior EEO activity based on 29 C.F.R. § 1614.101(b). To establish a claim of retaliatory harassment, Complainant must show that: (1) she engaged in prior protected EEO activity; (2) she was subjected to unwelcomed conduct related to her prior protected EEO activity; (3) the harassment complained of was based on her prior protected EEO activity; the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Our review of the record clearly reflects that the AJ properly determined that the Agency subjected Complainant to retaliatory harassment with respect to all claims except S1’s offer of the 120-day temporary promotion. Complainant testified that she believed that S1’s offer of the 120-temporary promotion was in reprisal for her participating as a witness in another EEO complaint filed against S1 by CW1 in June 2013. Consequently, Complainant’s prior protected EEO activity occurred approximately one year before she deployed to Afghanistan and almost two years after S1 offered her the temporarily position when she returned to Afghanistan in July 2015. We agree with the AJ’s determination that too much time passed to establish an inference of retaliatory animus. Therefore, we affirm the AJ’s dismissal of this claim. However, we note that Complainant also alleged, regarding the remaining claims, that her prior protected EEO activity consisted of the instant complaint. The record indicates that Complainant voiced to upper management her belief that she was being discriminated against when placed in the Budget Office instead of her Housing Manager position in July 2015. As previously stated, the Budget Officer described Complainant’s situation in his July 23, 2015 email to the Superintendent. 2021004318 13 Consequently, Complainant had, in unequivocal terms, alerted d upper management that she was being subjected to an ongoing discriminatory hostile work environment by S1. As such, the record reflects that Complainant engaged in oppositional EEO activity in July 2015 when she reported S1’s harassing actions (i.e. her placement in the Budget Office instead of her Housing Manager position). It was after Complainant participated in this protected activity in July 2015 that S1 continued to retaliate against her by requiring her to report to Sandy Hook twice a week while not requiring the same of the other Housing Manager; preventing her from applying for the Property Manager position; accusing her of false allegations regarding a housing inspection; refusing to provide her access to retrieve her files; continuing to communicate with her when ordered not to do so; and ordering Complainant to personally clean dirty linens. We address each of these claims more specifically below. Sandy Hook The record indicates that during a July 23, 2015 meeting, S1 instructed Complainant to report to each of the three locations (Staten Island, Jamaica Bay, and Sandy Hook) a “minimum of 1 working day [each week].” In contrast, the Selectee testified that only “when something came up” would she visit Sandy Hook or Jamaica Bay. This testimony was consistent with Complainant’s testimony when she explained that there was no real need for her to visit Sandy Hook once a week or even twice a week as S1 had directed her. Complainant indicated that all Sandy Hook housing units were deleted from her system following the 2012 hurricane. As a result, Complainant explained that only seasonal housing was there, and she only needed to report to Sandy Hook if she was conducting an inspection. Complainant further testified that she asked S1 whether the Selectee was required to visit Sandy Hook on a routine basis and S1 declined to answer. Consequently, the record reflect that S1 retaliated against Complainant when he only required her to routinely visit Sandy Hook. Property Manager Position The record indicates that S1 used Veteran Recruitment Authority (VRA) to fill the Property Manager position which was the same position S1 had offered Complainant in July 2015, except this position was being offered as a permanent, not a temporary position. Complainant indicated that her main reason for declining S1’s initial offer was because the position was temporary and there was no guarantee that it would be converted into a permanent position once the term ended. Additionally, S1 acknowledged that in July 2015, he felt that Complainant would be a good person for the position. However, S1 did not consider Complainant for the position when it was latter classified as a permanent position. Rather, S1 picked a hiring process, the VRA process, which did not require him to advertise the position vacancy. We note that in October 2015, S1 participated in a job fair for Property Manager position which occurred a few weeks after Complainant initiated EEO Counselor contact regarding the instant complaint on September 21, 2015. S1’s decision not to consider Complainant for the same position he previously determined she was qualified for, supports an inference of retaliatory animus. 2021004318 14 Allegation Regarding Housing Inspection The record indicates that on February 8, 2016, S1 sent an email to the Regional Housing Manager regarding his concerns with Complainant overseeing the inspection of certain housing units to determine the accurate square footage of the units in order to calculate a fair rent price for the unit. It was part of Complainant’s duties to ensure that the rental prices reflected the total usable square footage as rent amounts were based on total square footage. S1 did not inform or disclose to the Regional Housing Manager that the Selectee was one of housing units and that the Selectee did not want Complainant to inspect her unit. Rather, S1 insinuated that it would have been inappropriate for Complainant to fulfill her position duties even though there had been no complaints about Complainant’s performance of these duties. Consequently, S1’s suggestion of Complainant’s inability to perform her duties without evidence supporting deficiencies in Complainant’s performance is sufficient to demonstrate that retaliatory animus motivated S1’s actions. Changed Locks/Office Access The record indicates that in September 2015, Complainant left the Budget Office and returned to a smaller office on the first floor in the Housing Office since the Selectee had been relocated to another area. However, Complainant had no keys to the smaller office and S1 prevented Complainant from getting a lock installed on her personal office door and even removed that lock Complainant had facilities install. Additionally, Complainant’s files were stored in S1’s office located upstairs (this office was also Complainant’s original office that S1 began using after her deployment) and S1 did not give Complainant a key to this office. Consequently, Complainant had to wait until S1 was in the office to gain access to her work files. While Complainant was now stationed in the Housing Office, she could not freely gain access to her files or secure her office and these barriers are a further reflection of S1’s retaliatory animus towards her. IM Messaging & Continued Communication with Complainant The record indicates that the Agency began an internal investigation into Complainant’s claims in December 2015, and during that period Complainant refused to accept S1’s IMs. Complainant explained that she was open to emailing S1, but she did not feel comfortable being forced to respond to S1’s IMs. There was no indication that Complainant’s use of email as a preferred form of communicating was insufficient, lacking, or better than IMs. Rather, the record indicated that S1 had a preference for IMs for communicating with all staff. The record further indicated that S1 was instructed to refrain from contacting Complainant directly, and he refrained from speaking to Complainant in-person, but he had to be reminded more than once to follow these orders. Ultimately, management moved Complainant to Miller Field and physically separated her from S1 while the management inquiry was being conducted, and S1 was instructed to refrain from communicating with Complainant while the investigation was pending. 2021004318 15 However, after the results of the management inquiry returned,8 S1 was allowed to continue to copy Complainant on correspondence because he was still her supervisor. Laundry Incident Complainant explained that before deployment, she had all laundry duties outsourced to a cleaning company as it was part of her duties as House Manager to ensure that all linens were cleaned as tenants moved-in and move-out of the rental units. However, S1 explained that after Complainant deployed, neither he nor the Selectee knew which vendor Complainant used and could not find a vendor who would accept a government credit card. Consequently, S1 indicated that he and the Selectee would take the dirty linens home and clean them themselves. Thereafter, in 2016, the AA informed Complainant, who was unaware of the new procedure for cleaning linens, that S1 had assigned Complainant to clean a large bag of dirty linens that were dumped in her office. Complainant testified that she felt “degraded” by the assignment. Notably, S1 did not inquire from Complainant which laundry vendor she had previously used now that Complainant had been in the office approximately a year since returning from her deployment, nor did S1 continue to clean the linens as he had prior to Complainant’s return. As there is no legitimate explanation for S1’s actions as discussed in detail above, we are left to conclude that the AJ properly determined that retaliatory animus played a role when S1 required only Complainant to report to Sandy Hook on a regular basis; prevented Complainant from applying for the permanent Property Manager position; accused Complainant of being unable to properly and fairly conduct housing inspections; refused to provide Complainant access to her files or a lock on her office door; continued communicating with Complainant after being ordered not to; and when S1 assigned Complainant to personally clean dirty linens left in her office. Remedies We next address the AJ’s determination that Complainant was entitled to compensatory damages due to the Agency subjecting Complainant to discriminatory and retaliatory harassment. Here, the AJ awarded $80,000 in non-pecuniary compensatory damages, and we affirm this award. Non-pecuniary compensatory damages are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991 (EEOC Guidance), EEOC Notice No. 915.002 at 10 (July 14, 1992). 8 The record indicates that the June/July 2016 results of the management inquiry found no evidence of a hostile work environment caused by S1. 2021004318 16 Objective evidence in support of a claim for non-pecuniary damages claims includes statements from Complainant and others, including family members, co-workers, and medical professionals. See id.; see also Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Non- pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans. Ltd., 727 F.2d 1225 (D.C. Cir. 1994); EEOC Guidance at 13. Additionally, the amount of the award should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Complainant testified that she had to seek help from a therapist to handle the emotional strain she endured at work. Complainant indicated that she had depressions, headaches, and nightmares of S1 choking her or holding a gun to her head, all within the first five months after she returned to the office in July 2015. Complainant explained that she was crying every day she reported to work, she did not want to eat, and she did not want to speak to anyone. She became fearful and could not have anyone behind her and every morning was a struggle to report to work. Complainant noted that during her therapy sessions, she could not even address the trauma she experienced in Afghanistan because the trauma she was experiencing at work was so pronounced. Complainant described every day at work as a new “battle” because she did not know what issue she would face from day to day. Ultimately, Complainant indicated that in 2018, she stayed at the Agency with LWOP, at the direction of her therapist, until she could medically retire from the Agency on March 13, 2019. As of the date of hearing October 2019 hearing, Complainant explained that she still takes medication at night to help her sleep. The record includes a May 26, 2016 letter from Complainant’s therapist indicating that Complainant has post-traumatic stress disorder (PTSD), severe anxiety, depression, and panic attacks exacerbated by a toxic work situation. The therapist noted a concern “that there is an investigation of harassment and bullying by her supervisor which is on-going.” The therapist further noted that Complainant “has been allowed to stay in the same situation where she continues to be verbally, emotionally, and mentally attacked by the same person.” The therapist noted that Complainant’s work situation is very “dangerous” to Complainant’s emotional stability and keeping Complainant in the same toxic environment could cause major physiological effects. Thereafter, Complainant’s therapist noted in 2018 that Complainant’s conditions exacerbated from being at work and from the stress associated with her pending EEO complaint. Specifically, Complainant’s therapist indicated that Complainant was fully disabled by her PTSD symptoms caused by her working environment. As previously discussed, Complainant’s testimony identifies the type of harm she suffered and adequately ties that harm directly to the Agency’s actions. Based on Complainant’s representations of harm, we find that the weight of our prior decisions supports an award of $80,000 in non-pecuniary compensatory damages. See Regist v. Dep’t Veterans Affairs, EEOC Appeal No. 0120093445 (Feb. 4, 2010) ($75,000 in non-pecuniary damaged See Utt v. U.S. Postal Service, EEOC Appeal No. 0720070001 (Mar. 26, 2009) ($25,000 in non-pecuniary 2021004318 17 damages awarded where complainant was subjected to discriminatory and retaliatory harassment for approximately one year and complainant testified of public humiliation, sleeplessness, tearfulness, and need for counseling and high blood pressure mediation). CONCLUSION Accordingly, we REVERSE the Agency’s final order rejecting the AJ’s findings of discrimination and award of compensatory damages. We AFFIRM the AJ’s remedial order as stated in our Order below. We REMAND this matter to the Agency in accordance with the Order below. ORDER The Agency is ORDERED to take the following actions within one-hundred and twenty (120) calendar days from the date this decision is issued: 1. The Agency shall pay Complainant $80,000 in non-pecuniary compensatory damages. 2. The Agency shall provide at least four (4) hours of training to each supervisor and manager involved in the instant matter. The training shall address the current state of the law on race and national origin discrimination and retaliation and the intersectionality of such categories in employment discrimination and the goals behind creating and maintaining a work environment free of discriminatory harassment and ridicule. 3. The Agency shall consider taking appropriate disciplinary action against S1. If the Agency decides not to take disciplinary action, it shall set forth the reasons 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). POSTING ORDER (G0617) The Agency is ordered to post at its Gateway National Recreation Area - Park Service facility 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2021004318 18 ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2021004318 19 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021004318 20 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 (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 June 2, 2022 Date