[Redacted], Barbara R., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Mar 30, 2023

Appeal No. 2022003131 (E.E.O.C. Mar. 30, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barbara R.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2022003131 Hearing No. 570-2019-00211X Agency No. CCD-2017-00602 DECISION On May 17, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 19, 2022, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Executive Officer for Enterprise Management at the Agency’s Office of Chief Information Officer (OCIO) at its Headquarters in Washington, D.C. She was a member of the Senior Executive Service (SES). On September 27, 2017, Complainant filed an EEO complaint alleging that the Agency had subjected her to ongoing discriminatory harassment, beginning in September 2015, on the bases of sex (female), disability (degenerative arthritis, knee replacement), age (YOB: 1956), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and 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. 2022003131 2 Section 501 of the Rehabilitation Act of 1973. Complainant alleged the harassment included, but was not limited to, the following incidents: a. On September 23, 2015, January 14, 2016, November 29, 2016, March 27, 2017, April 19, 2017, and other unspecified dates, Complainant’s position was threatened, and she was pressured to seek employment outside of the Agency. b. On October 13, 2015, January 14, 2016, and November 7, 2016, Complainant was admonished in front [of] her staff and colleagues. c. In October or November 2015, during a staff meeting, Complainant’s Supervisor announced her job title as “Executive Director” instead of “Deputy Chief Information Officer (DCIO)”. d. On November 5 and 19, 2015, December 10, 2015, March 27, 2016, April 19, 2017, and other unspecified dates, Complainant was repeatedly asked when she was going to retire. e. On November 5 and 19, 2015, December 10, 2015, March 9 and 27, 2017, and other unspecified dates, Complainant’s Supervisor made derogatory comments regarding her use of a scooter. f. In March 2016, and on November 29, 2016, and other unspecified dates, Complainant’s Supervisor threatened to remove her staff from her supervision. g. In July 2016, Complainant’s Supervisor did not support her when dealing with her subordinate employees. h. On April 16, 2017 and September 1, 2017, and in August 2017, various employees were removed from Complainant’s supervision, which impacted her ability to perform her duties. i. In or after June 2017, management threatened to move Complainant into a smaller office space. At the conclusion of the investigation,2 the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing on October 20 - 21 and November 8, 2021. Complainant stated that she began working at the Agency in 2007 and then was appointed by the then-Chief Information Officer (CIO) to be the SES Executive Officer for Enterprise Management, reporting to the CIO. See Report of Investigation (ROI) at 95. Complainant further stated that she suffers from degenerative arthritis and has used a scooter for mobility off and on and fulltime following Achilles heel surgery in October 2015. See ROI at 96; Hr’g Tr. 1 at 119-20, 26-27. 2 The Agency initially dismissed Complainant’s complaint as untimely. Complainant appealed and on appeal, the Commission reversed the Agency’s dismissal, finding that Complainant provided adequate justification for the untimely filing and remanded the complaint for further investigation. See EEOC Appeal No. 0120180798 (March 15, 2018). 2022003131 3 The then-CIO left the Agency in March 2015 and was replaced by the new CIO, who became Complainant’s supervisor (Supervisor) in June 2015. At the hearing, Complainant testified that her Supervisor was continually harsh and hostile.3 See Hr’g Tr. 1 at 113-14. She specifically recalled that in an October 2015 meeting, after she returned to work from surgery, her Supervisor publicly called her out for not smiling and accusing her of not being engaged. See Hr’g Tr. 1 at 166. Thereafter, in multiple occasions, primarily in their one-on-one meetings, Complainant testified that her Supervisor continuously harassed her asking when she planned to retire and making disparaging comments regarding her use of a scooter.4 See Hr’g Tr. 1 at 125; Hr’g Tr. 2 at 66-70. Complainant also stated that the Supervisor often scheduled meetings after hours or off-site in locations that made it difficult, if not impossible, for her to attend and she would hear from other senior leaders the substantive issues that were discussed and even though she mentioned the issue to the Supervisor, nothing changed. See Hr’g Tr. 1 at 127-30, 133. Complainant further testified that her Supervisor also made frequent comments telling her she needed to get another job and that he was going to eliminate her and remove her staff. See Hr’g Tr. 1 at 161-64; 232-33, 244-45; Hr’g Tr. 2 at 73-76. One of Complainant’s coworkers at the time also testified, confirming that she frequently heard the Supervisor making derogatory comments about Complainant’s use of the scooter. See Hr’g Tr. 1 at 56-57. The co-worker asserted that to her knowledge, the Supervisor made such derisive comments about Complainant’s use of the scooter frequently, at least once or twice a week for over a year. See Hr’g Tr. 1 at 57, 83-84. The co-worker also confirmed that the Supervisor made derogatory comments referring to Complainant’s and other people’s age. See Hr’g Tr. 1 at 49-50. Complainant testified that prior to the Supervisor’s becoming the CIO, her role was functionally the equivalent of the Deputy CIO and her previous supervisor, the then-CIO referred to her as such even though her official position description stated she was an Executive Officer. See Hr’g Tr. 1 at 183-85. She stated that in a meeting in October or November 2015, the Supervisor announced Complainant’s title as the Executive Officer with no further explanation, causing confusion among the staff. See Hr’g Tr. 1 at 191-93. She stated that she started to be excluded from meetings, no longer reviewed policy, and lost her sign-off authority. See Hr’g Tr. 1 at 189- 90, 194-95. 3 The Supervisor left the Agency in August 2017 and did not provide an affidavit during the investigation and did he participate in the hearing. The AJ accepted Complainant’s testimony regarding the one-on-one interactions as uncontradicted. See AJ Decision at 3, n.1. 4 Complainant retired from her employment in 2018 and she testified that her decision to retire was heavily influenced by her Supervisor’s conduct towards her because his conduct and attitude towards her made it difficult for her to perform her job. See Hr’g Tr. 2 at 83-85, 90-91. We note, however, that we do not find that Complainant’s retirement was involuntary because the evidence indicates that Complainant retired in December 2018, more than a year after the Supervisor left the Agency. 2022003131 4 She further testified that beginning in July 2016, she started experiencing issues with insubordination from two of her subordinate employees and that her Supervisor accepted without question her male subordinate employees’ assertions and began including them in meetings and having one-on-one meetings which excluded Complainant, when he did not do the same with other senior staff’s subordinate employees. See Hr’g Tr. 1 at 142-43, 162-63, 169-74. She testified that when one of the subordinate employees filed an EEO complaint against her because he was dissatisfied with his performance appraisal, the Supervisor took the subordinate employee’s side and the Agency ultimately settled with the subordinate employee, raising his performance rating and moving him to another division. See Hr’g Tr. 2 at 10-13, 16-17. Complainant further asserted that in August 2017, Complainant’s oversight and supervisory responsibilities were removed and ultimately, she was left to manage only 3 out of 24 employees, although her position description was not officially changed. See Hr’g Tr. 1 at 186- 87. Complainant testified that she felt the reorganization felt like an attack on her because the Supervisor did not follow any of the usual procedures in reassigning a member of the SES and the Supervisor had told her from the beginning that he wanted to eliminate her. See Hr’g Tr. 2 at 18-20. Complainant also stated that in June or July 2017, she learned that she was the only SES level employee to be targeted to move to a smaller office space but that ultimately, the move did not happen until later because she was hospitalized. See Hr’g Tr. 2 at 91-94. She further testified that with respect to the reorganization and the removal of staff from her reports, she was given no notice and when she reached out to HR personnel to ask, was only told to ask her Supervisor about it. See Hr’g Tr. 2 at 94-97. She stated that she was worried about her job because her position description had still not changed but due to the removal of most of her staff, she could not actually do her job. See Hr’g Tr. 2 at 97-98. The AJ issued a decision on April 13, 2022. The AJ’s decision found that Complainant did not present sufficient evidence to prove that her Supervisor acted with a discriminatory motive and therefore did not establish that she was subjected to discrimination on any of her protected bases. The AJ further concluded that any comments the Supervisor made concerning Complainant’s retirement or her scooter were only a few isolated stray comments and not severe or pervasive enough to constitute a hostile work environment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed. CONTENTIONS ON APPEAL Complainant appealed the Agency’s final order, contending that the AJ applied the wrong standard of law in finding that Complainant did not establish that she was subjected to a hostile work environment and further that the AJ’s decision finding no discrimination was not supported by substantial evidence. 2022003131 5 In response, the Agency filed a brief arguing that the AJ’s decision was supported by the evidence and urging affirmance of the Agency’s order finding Complainant did not establish that she was subjected to discrimination. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of 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 the 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Here, Complainant alleged that she was subjected to hostile work environment harassment based on the Supervisor’s continuous belittling and harsh treatment, including repeatedly asking when she planned to retire and making disparaging comments regarding her use of a scooter. See Hr’g Tr. 1 at 125; Hr’g Tr. 2 at 66-70. Complainant further testified that the Supervisor made frequent comments telling her she needed to get another job and that he was going to eliminate her and remove her staff. See Hr’g Tr. 1 at 161-64; 232-33, 244-45; Hr’g Tr. 2 at 73-76. Complainant alleged that the Supervisor cut her off in meetings, did not listen to her opinion, and took her male subordinate employees’ side when she experienced issues with insubordination and other incidents. 2022003131 6 Upon our review of the record, we find that Complainant established that she was subjected to harassment based on her age and disability.5 There is no dispute that Complainant is a member of protected classes based on her age and disability and she was subjected to unwelcome conduct due to those classes in the form of the Supervisor’s frequent derogatory comments. We emphasize that one of Complainant’s coworkers corroborated Complainant’s testimony about the Supervisor’s treatment of Complainant, stating that she frequently heard the Supervisor making derogatory comments about Complainant’s use of the scooter and that the Supervisor also made negative comments referring to Complainant’s age. See Hr’g Tr. 1 at 49-50; 56-57. We further find that the AJ erred in dismissing the Supervisor’s comments as a few isolated incidents or stray comments. We are particularly concerned by the fact that in doing so, the AJ essentially ignored large portions of Complainant’s hearing testimony, so his findings are contradicted by the evidence in the record. Complainant testified that the comments were frequent and constant, happening almost every time the Supervisor saw Complainant using the scooter and in their weekly one-on-one meetings. Complainant’s co-worker also asserted that to her knowledge, the Supervisor made such derisive comments about Complainant’s use of the scooter frequently, at least once or twice a week for over a year. See Hr’g Tr. 1 at 57, 83-84. We find that the nature and frequency of the Supervisor’s remarks were such that a reasonable person would consider their work environment to be intimidating, hostile or offensive. An agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Here, we find Complainant has met her burden of establishing that the Agency was liable for the harassment because it was committed by her Supervisor. When the harassment does not result in a tangible employment action being taken against the employee, the employer may raise an affirmative defense to liability. 5 We note, however, that we do not find that Complainant established that she was subjected to a hostile work environment based on sex or reprisal. The evidence does not indicate that the Supervisor made any references to Complainant’s prior protected activity and while there is some indication that the Supervisor indicated some animus against Complainant based on her sex, we do not find that his actions in cutting her off in meetings or generally being rude are sufficiently severe or hostile to constitute actionable harassment. We note that the evidence in the record indicates that the Supervisor’s general management style was dictatorial, abrupt and rude, and that he was also abrupt with the Deputy CIO for Operations (Deputy CIO), who is male. See Hr’g Tr. 3 at 60-64; 144-48. 2022003131 7 The Agency can meet this defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) that Complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270; Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action being taken against the employee. Here, it does not appear that most of the harassing conduct coincided with a tangible employment action. We do note, however, as will be discussed later in this decision, that Complainant established the Supervisor made changes to her duties and supervisory responsibilities even though her title and position description were not officially changed. These acts could constitute a tangible employment action. Moreover, with regard to all the incidents comprising Complainant’s hostile work environment claim, that the Agency failed to demonstrate that it exercised reasonable care to prevent and promptly correct the Supervisor’s behavior. See Rosamaria F. v. Dep’t of the Navy, EEOC Appeal No. 0120181068 (Feb. 14, 2020). In this case, there is no evidence that the Agency took any action to prevent or correct the Supervisor’s treatment of Complainant. We note that the evidence in the record indicates that Complainant talked to several of her coworkers, all higher-level management officials, about the Supervisor’s treatment of her, as well as the fact that at least one of her co-workers witnessed the Supervisor’s derogatory comments to Complainant about her use of the scooter. There is no evidence, however, that any of these management officials took any action to report the Supervisor. The record also indicates the Supervisor was the subject of some other complaints but there is no evidence in the record that the Agency took any action to otherwise monitor or try to correct the Supervisor’s behavior. Therefore, we find that Complainant has established that she was subjected to harassment by the Supervisor for which the Agency is liable. Disparate Treatment The AJ also erred by failing to analyze some of Complainant’s claims as discrete claims of disparate treatment in addition to being evidence proffered in support of her hostile work environment claim. We conclude that Complainant alleges that changes to her duties and supervisory responsibilities constitute discrete acts that independently state claims outside of the harassment framework. See Elly C. v. Dep’t of Defense, EEOC Appeal No. 0120161750 (noting that discrete actions are separate actionable unlawful business practices such as a failure to promote or denial of transfer or termination). A disparate treatment discrimination claim is analyzed under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 2022003131 8 For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis to the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions in removing Complainant’s duties and supervisory responsibilities. One of Complainant’s former co-workers, who worked for the Supervisor as the Deputy CIO for Operations (Deputy CIO), testified that one of the Supervisor’s primary focus areas was to better organize the OCIO organization to be more effective and efficient, integrating duplicative services and so on. See Hr’g Tr. 3 at 153-54. To that end, he testified that the Supervisor hired a consulting firm to help advise and make recommendations about the organization which resulted in a number of changes including, for example, moving some software developers that had been under Complainant’s supervision to the group in OCIO that manages software development and moving some other functions Complainant had been responsible for to other places, to “[put] like things in like places.” See Hr’g Tr. 3 at 156-57, 160-61. The Deputy CIO acknowledged that Complainant’s position and her responsibilities changed quite a bit but, in his opinion, he thought the changes worked towards the goal of making the OCIO more efficient, putting like things in like places and clarifying ownership or delivery of services. See Hr’g Tr. 3 at 162-64. We determine, however, that the AJ’s finding that Complainant did not establish discriminatory motive is not supported by substantial evidence because the AJ failed to consider all the evidence in the record. We are troubled by the AJ’s perfunctory dismissal of all the evidence concerning the Supervisor’s comments indicating discriminatory animus and other evidence indicative of possible pretext. We find that, contrary to the AJ’s conclusion, the evidence in the record indicates that the Agency’s reasons were a pretext for discriminatory animus due to Complainant’s age and disability. See Lionel A. v. Dep’t of Justice, EEOC Appeal No. 2020004362 (Nov. 22, 2021) (stating indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, unequal application of Agency policy, or deviations from standard procedures without explanation or justification). 2022003131 9 To begin with, we are concerned about the Agency’s failure to articulate specific nondiscriminatory reasons for such adverse actions as the removal of Complainant’s sign-off authority because the Agency did not adequately explain how such actions were related to the goals of the reorganization.6 See King v. Social Sec’y Admin., EEOC Appeal No. 01A14569 (Dec. 16, 2002) (stating that where a complainant establishes a prima facie case and the agency fails to articulate any legitimate, nondiscriminatory reason, a finding of discrimination is generally appropriate); see also Rodriguez v. Dep’t of the Treasury, EEOC Appeal No. 01983390 (June 11, 1999). In addition, the Supervisor’s numerous and frequent statements concerning Complainant’s disability provide evidence of discriminatory animus. As detailed earlier, Complainant and one of her coworkers both testified that the Supervisor frequently made derogatory references to Complainant’s disability. See Hr’g Tr. 1 at 57, 83-84; Hr’g Tr. 2 at 66- 70. There is also ample evidence in the record that the Supervisor harbored discriminatory animus against Complainant based on her age because of his frequent and repeated comments to Complainant about her retirement, which are also corroborated by one of Complainant’s co- workers. See Marvella B. v. General Services Admin., EEOC Appeal No. 0120150997 (April 3, 2018) (noting that repeated inquiries about an employee’s retirement plans may indicate age- related animus); see also Kaniff v. Allstate Ins. Co., 121 F.3d 258 (7th Cir. 1997) (repeated references to retirement may permit an inference of age discrimination). We further find that pretext is established because of the Supervisor’s failure to follow the established procedures for a directed reassignment of a member of the SES. The former Associate Chief Information Officer Policy, E-Government and Fair Information Practices (Associate CIO), who was one of Complainant’s former co-workers and another member of the SES, testified that members of the SES are expected to be mobile so that they can be reassigned by the Agency, “plug and play [] where they need you.” See Hr’g Tr. 3 at 12-15. She testified, however, that in her experience, almost all reassignments were first presented to her with a request to accept the position. See Hr’g Tr. 3 at 16-17. Complainant also testified that there are regulations to follow with moving around members of the SES, explaining that there was usually an official communication with an offer in it, with a position description and other relevant information, and an employee would have 15 days to respond. See Hr’g Tr. 2 at 19. Complainant testified, however, that in her case, the Supervisor did not follow any of those procedures, telling her from the beginning and in other meetings that he wanted to eliminate her and move her staff. See Hr’g Tr. 2 at 19-20. For example, Complainant testified that the Supervisor came into her office for an unscheduled meeting telling her about a possible position as the CIO in Rural Development and when she said she wasn’t interested, he told her she might not have a choice. See Hr’g Tr. 2 at 27-29. 6 We also note that the fact that Complainant’s official position description was not changed even as she lost most of her subordinate staff and sign-off authority would make it much more difficult for Complainant to perform all her duties according to her official position description. 2022003131 10 She explained that she thought he meant it would be a directed reassignment and so she reached out to the Deputy Under Secretary in Rural Development and the Deputy Administrator for Management (Deputy Administrator) about the reassignment. See Hr’g Tr. 2 at 33-35. Complainant testified that the Deputy Administrator was shocked and upset because she had not heard anything about the possible reassignment and then later, the Supervisor called her into his office and “[went] ballistic,” saying he never said it was a directed reassignment and mentioned Complainant’s retirement again and saying she needed to leave and yelling at Complainant for mentioning a directed reassignment. See Hr’g Tr. 2 at 35-36, 38-41. In this case, the Agency has not provided evidence to explain or justify the Supervisor’s actions in deviating from established procedures where the changes to Complainant’s duties and position were concerned, especially in light of the Supervisor’s numerous comments indicating discriminatory animus. We emphasize that Complainant testified that the Supervisor told her from the beginning that he intended to eliminate her and remove her staff and the Associate CIO confirmed that, as a result of the reorganization, Complainant did in fact lose all her staff.7 See Hr’g Tr 2 at 19-20; Hr. Tr. 3 at 85-86. The Associate CIO further stated that in her opinion, the Supervisor viewed the resulting changes in her and Complainant’s positions as “a bonus.” See Hr’g Tr. 3 at 86-87. We find that the preponderance of the evidence and testimony supports a finding that the Supervisor harbored animus against Complainant and therefore, that the Agency’s reasons are a pretext for discriminatory animus. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007). Under the circumstances, we conclude that Complainant has established that she was subjected to discrimination when her duties were changed and her supervisory responsibilities were removed. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s final order and find that Complainant established that she was subjected to disparate treatment and a hostile work environment based on her age and disability. ORDER (C0618) The Agency is ordered to take the following remedial actions: 1. Because we find that Complainant established that she was subjected to a hostile work environment based on her disability and age, we find that Complainant is entitled to compensatory damages. Within ninety (90) calendar days of the date this decision is issued, the Agency shall complete a supplemental investigation concerning the amount of compensatory damages due Complainant and issue a final decision with appeal rights to 7 In contrast, we note that the Associate CIO who was also affected by the reorganization and who stated that she disagreed with the Supervisor’s decision, stated that was reassigned to an entirely different position as Associate CIO, taking on more staff and more functionality. See Hr’g Tr. 3 at 74-75. 2022003131 11 the Commission. The Agency shall pay this amount to Complainant within thirty (30) calendar days of the date of the determination of the amount of compensatory damages. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.” 2. Within ninety (90) calendar days of the date this decision is issued, the Agency shall provide 8 hours of interactive EEO training to all supervisors and managers in the Office of Chief Information Officer (OCIO) at the Agency’s Headquarters in Washington, D.C. The required training shall address the Rehabilitation Act and the ADEA and management’s responsibilities with regard to eliminating discrimination in the workplace, as well as emphasizing the protections against reprisal for protected EEO activity. The Agency may contact our Training and Outreach Division for Assistance in obtaining the necessary training via https://www.eeoc.gov/federal-sector/federal-training-outreach.8 3. Within thirty (30) days of the date this decision is issued, the Agency shall post a notice in accordance with the paragraph entitled, “Posting Order.” The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). POSTING ORDER (G0617) The Agency is ordered to post at its Office of Chief Information Officer Headquarters 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). 8 We note that because the Supervisor is no longer in federal service, we cannot order that he be trained or the consideration of discipline for him. 2022003131 12 ATTORNEY’S FEES (H1019)9 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. 9 While the ADEA does not authorize an award of attorney’s fees to a complainant who prevails on an age claim in an administrative forum, here Complainant may be awarded attorney’s fees because she also prevailed on her disability claim under the Rehabilitation Act with regard to the very same hostile work environment claim. 2022003131 13 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). 2022003131 14 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 30, 2023 Date