Tammy S.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Oct 2, 2015

07-2013-0022-0500 (E.E.O.C. Oct. 2, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tammy S.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0720130022

Hearing No. 540-2011-00143X

Agency No. P-2010-0244

DECISION

Following its May 6, 2013, final order, the Agency filed a timely appeal which the
Commission accepts pursuant to 29 C.F.R. § 1614.405(a). In its final order, the Agency
adopted, in part, the decision of an Equal Employment Opportunity Commission
Administrative Judge (AJ) finding that it subjected Complainant to discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§791 et seq. The Agency requests, however, that the Commission affirm its rejection of one
aspect of the relief ordered by the AJ. For the following reasons, the Commission MODIFIES
the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Correctional
Officer at the Agency’s Federal Correctional Complex facility in Florence, Colorado. On
February 22, 2010, Complainant filed an EEO complaint alleging that the Agency

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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discriminated against her on the bases of disability (injury to left wrist) and in reprisal for prior
protected EEO activity2

when:
1. on December 22-23, 2009, management placed Complainant in absent without leave
(AWOL) status;
2. in March 2010, management failed to provide Complainant with a reasonable
accommodation;
3. on April 22, 2010, management terminated Complainant from her position during
her probationary period;
4. in an email dated December 10, 2009, an instructor accused Complainant of
fabricating her injury;
5. on or about December 13, 2009, the Captain of Complainant’s facility told
Complainant to “watch her step,” “listen to her senior officers,” and let the
December 10 email go;
6. one of Complainant’s supervisors (S2) refused to meet with her on two occasions in
November 2009;
7. S2 denied to the Captain that Complainant had requested leave to undergo surgery
on December 18, 2009, and wrongfully placed her in AWOL status;
8. S2 withheld two temporary assignment of duty (TAD) letters from Complainant on
December 23, 2009, and January 12, 2010;
9. S2 strongly advised Complainant not to sign the December 23, 2009 TAD on three
separate occasions although failure to sign the TAD would have been grounds for
termination;
10. On December 31, 2009, S2 told Complainant that she had to immediately sign a
TAD although she had 30 days to make a decision;
11. On several occasions between November 19-21, 2009, and between January 1-21,
2010, S2 required Complainant to discuss her medical information in the presence
of other employees;
12. On February 11, 2010, the injury compensation specialist (ICS) required
Complainant to discuss her medical information in front of the warden’s secretary;
13. Between August 16, 2009, and April 10, 2010, S2 assigned Complainant unfair
work schedules and changed her schedule so that she would be assigned to work on
days when she had doctor’s appointments;
14. On December 28, 2009, and from January 9-27, 2010, Complainant was subjected
to discriminatory comments by coworkers while she was assigned to work as a
receptionist; and
15. On March 12, 2010, the workers’ compensation coordinator told the human
resources office not to assign Complainant to work alone because she would
intentionally harm herself to further build her case.3

2 In her formal complaint, Complainant also alleged discrimination on the basis of sex,
however, the AJ issued partial summary judgment finding no discrimination on this basis.
Complainant has not challenged this finding of no discrimination and we therefore affirm the
AJ’s finding of no discrimination on the basis of sex.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an AJ. Complainant
timely requested a hearing and the AJ held a hearing on September 17-18, 2012, and issued a
decision on January 18, 2013.

In her January 18, 2013 decision on liability, the AJ found that Complainant suffered an on-
the-job injury to her left wrist on October 27, 2009, and has continuously worn a splint since
that date. Complainant has also undergone a number of surgeries to her wrist and elbow. In
November 2009, Complainant provided the Agency with medical documentation outlining
temporary restrictions of no pushing, pulling, or lifting with her left arm. The restrictions were
extended in a document provided to the Agency dated December 22, 2009, and according to
documentation dated January 4, 2010, the restrictions were no longer temporary. Following
repeated meetings with management officials, Complainant began working a temporary duty
assignment as a front lobby officer on January 24, 2010. Complainant went out on leave
beginning January 28, 2010, for surgery and subsequently began taking a prescribed narcotic
for pain. On February 11, 2010, Complainant had the first of a series of meetings with
management officials to discuss her restrictions upon her return to work and to find a
temporary duty assignment commensurate with those restrictions. In a meeting on March 17,
2010, it was determined that because Complainant was unable to drive due to the side effects
of the prescribed medications, management agreed to assign her to the same shift as her
husband and that she would begin working this new shift on March 21, 2010.

The AJ found that despite the outcome of the meeting and the agreement that Complainant
would begin in her new temporary assignment on March 21, 2010, management contacted
Complainant on the evening of March 17, 2010, instructing her to report to work. When
Complainant did not report to work, management charged her as being AWOL on March 18
and 19, 2010. Complainant reported to work on March 21, 2010, as agreed to by management
in the earlier meeting. By letter dated April 20, 2010, management informed Complainant that
she was being terminated from her position, effective April 22, 2010, due to unsatisfactory
conduct when she did not report to work on March 18 and 19, 2010. The AJ concluded that
the Agency subjected Complainant to unlawful disability discrimination with respect to claim
(2) when it failed to provide Complainant with a reasonable accommodation in March 2010.
The AJ also found that the Agency subjected Complainant to unlawful disability discrimination
with respect to claim (3) when it terminated her employment in April 2010. With respect to the
basis of reprisal, the AJ found that Complainant failed to establish a prima facie case as a
number of the incidents alleged occurred prior to her initial EEO counselor contact and she did
not show that the management officials at issue were aware of her EEO activity. Finally, the

3 Complainant also alleged that she was subjected to unlawful harassment when S2 made vulgar
comments about her to another management official and stated that she had filed EEO
complaints against previous employers. The AJ issued partial summary judgment on this claim
and found no discrimination. Complainant has not challenged this finding of no discrimination
and we therefore affirm the AJ’s finding regarding these issues.
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AJ found that Complainant failed to establish that she was subjected to unlawful discrimination
or harassment with respect to any of the remaining claims.

By way of relief, the AJ ordered the Agency to: (1) reinstate Complainant into the position of
correction officer and place her in the appropriate administrative leave status if she is unable to
perform the essential functions of the position; (2) engage in the reasonable accommodation
process to determine whether any vacant position exists into which Complainant can be
reassigned; (3) compensate Complainant for all back pay and benefits due; (4) pay $18,000.00
in compensatory damages; (5) pay $82,339.00 in attorney’s fees and $4,194.77 in costs; and
(6) provide training and discipline for the responsible management officials.

CONTENTIONS ON APPEAL

On appeal, the Agency addresses a single aspect of the AJ’s ordered relief. Specifically, the
Agency requests that the Commission affirm its rejection of the AJ’s order that as part of the
interactive process for reasonable accommodation, it provide Complainant with a list of all
vacant positions in the geographic area specified by Complainant on an ongoing basis for a
period of 90 days. The Agency does not appeal the AJ’s findings of discrimination nor any
other aspect of ordered relief.

Complainant also filed an appeal of the Agency’s final order. Complainant’s brief in support of
her appeal was untimely, however, and the brief will therefore not be considered in the instant
decision.

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).

Initially, we note that the Agency has not appealed the AJ’s finding of discrimination with
respect to claims (2) and (3). As such, we affirm the AJ’s finding of discrimination as to these
claims. Further, as to the issue of remedies raised in the Agency’s appeal, we find that the AJ
did not abuse her discretion in ordering the Agency to provide Complainant with a list of all
vacant positions in the geographic area specified by Complainant on an ongoing basis for a
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period of 90 days. The Agency is required to engage in the interactive process with
Complainant in order to determine what reasonable accommodation, including the possibility
of reassignment, is necessary. To establish entitlement to a reassignment, a complainant must
show that a vacant, funded position existed during the relevant time period or was likely to
open up. See EEOC Enforcement Guidance on Reasonable Accommodation, EEOC No.
915.002 at Question 24 (Oct. 17, 2002); Shimmin v. Dep't of Homeland Security, EEOC
Appeal No. 0120072428 (June 4, 2009). Complainant can establish that vacant, funded
positions exist by: (1) producing evidence of particular vacancies: or (2) showing that she is
qualified to perform a job or jobs which exist at the agency, and there are trends or patterns of
turnover in the relevant jobs so as to make a vacancy likely during the time period. See
Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). Here, the AJ
determined that the Agency relevant time period for determining whether a vacant position
exists is 90 days. We find no basis upon which to modify the AJ’s order in this respect.

Next, we find that the AJ erred as a matter of law with regard to the basis of reprisal. In so
finding, we note that a request for reasonable accommodation of a disability constitutes
protected activity under the Rehabilitation Act, as amended, 29 U.S.C. § 791 et seq. In
particular, it is unlawful to coerce, intimidate, or threaten any individual who has exercised
any right granted, such as requesting a reasonable accommodation, under the Rehabilitation
Act. 29 C.F.R. § 1630.12. The record clearly shows that Complainant first requested
reasonable accommodation of her disability in November 2009, and provided medical
documentation to management outlining her restrictions at that time. Additionally, the record
shows that the management officials at issue were aware of her request for reasonable
accommodation. Therefore, we find that the AJ erred in determining that Complainant failed to
establish a prima facie case of reprisal because she had not previously participated in the EEO
process.
We now turn to whether the events raised by Complainant constituted a hostile work
environment. It is well-settled that harassment based on an individual’s disability and prior
EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In
order to establish a claim of harassment under those bases, a complainant must show that: (1)
she is a qualified individual with a disability covered under the Rehabilitation Act and/or
engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the
harassment complained of was based on her disability and/or prior EEO activity; (4) the
harassment had the purpose or effect of unreasonably interfering with her 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 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). The
harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim’s circumstances. See Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994).

As to part (1), we find that it is not necessary to address the basis of disability as we have
found that Complainant engaged in prior protected EEO activity in the form of requests for a
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reasonable accommodation. Next, the conduct alleged was clearly unwelcome and Complainant
established part (2) of her prima facie case of harassment. Further, the harassment complained
of was clearly based on Complainant’s protected EEO activity. Here, the record shows that the
actions alleged were directly related to her request for a reasonable accommodation.
Specifically, the evidence shows that following her request, Agency officials accused her of
lying about her injury and potentially harming herself to support her claims, pressured
Complainant to accept assignments which violated her medical restrictions, and charged her
with AWOL when she was undergoing surgery. Therefore, we find that Complainant has
established part (3) of her prima facie case of harassment.

Turning to part (4), we find that based on the evidence of record, hearing testimony, and the
credibility determinations of the AJ, the record generally supports Complainant’s version of the
events alleged. The record shows that from the point that Complainant first requested a
reasonable accommodation of her disability in November 2009, Agency management officials
engaged in a series of harassing actions which led directly to her termination April 22, 2010.
We find that these actions, taken as a whole, had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating, hostile, or offensive
work environment.

We now turn to whether there is a basis for imputing liability to the Agency for management’s
actions. In Burlington Indus. v. Ellerth, 524 U.S. 742, 760-65 (1998), and Faragher v. City of
Boca Raton, 524 U.S. 775, 807, (1998), the Supreme Court made clear that employers are
subject to vicarious liability for unlawful harassment by supervisors. See EEOC Enforcement
Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No.
915.002, at 2, n. 7 (June 18, 1999). The standard of liability set forth in these decisions is
premised on two principles: (1) an employer is responsible for the acts of its supervisors, and
(2) employers should be encouraged to prevent harassment and employees should be
encouraged to avoid or limit the harm from harassment. In order to accommodate these
principles, the Court held that an employer is always liable for a supervisor's harassment if it
culminates in a tangible employment action. No affirmative defense is available in such cases.
EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, at 7. In the present case, we have already found that management officials’
actions culminated in the tangible employment action of Complainant’s termination. As such,
we find that the Agency is liable for the hostile work environment based on retaliation created
by the actions of management officials based on Complainant’s protected EEO activity. We see
no reason to alter any other findings in the remainder of the decision. We also specifically find
that our additional finding of discrimination does not alter the compensatory damage award in
this case given that the hostile work environment was intertwined with the damages from the
findings of discrimination on the discrete incidents.

CONCLUSION

Accordingly, we MODIFY the Agency’s final order and direct the Agency to comply with this
decision and the Order herein.
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ORDER

To the extent it has not already done so, the Agency shall take the following remedial actions:

1. Within 30 days of the date on which this decision becomes final, the Agency shall
reinstate Complainant to the position of Correctional Officer. Prior to returning her
to the position, the Agency shall engage with Complainant to determine what
reasonable accommodations are necessary to perform the essential functions of the
position. If it is determined that there are no accommodations available which
would allow Complainant to perform the essential function of the Correctional
Officer position, then the Agency shall place her in the appropriate administrative
leave status no later than 35 days from the date this decision becomes final. The
Agency shall also continue the interactive process to determine whether there exists
a vacant position for which Complainant can perform the essential functions with or
without a reasonable accommodation. As part of this process, the Agency may
request, and Complainant shall provide, medical documentation to the extent
necessary to determine Complainant’s limitations. Because this process is ordered as
a remedy for discrimination, the Agency shall pay the costs of any medical records
submitted by Complainant during this process. Further, the Agency shall provide
Complainant with a list of all vacant positions in the geographic area she specifies
on an ongoing basis for a period of 90 days beginning no later than 35 days from
the date this decision becomes final. If the parties identify a position for which
Complainant can perform the essential functions, then the Agency shall make an
unconditional offer of placement into the position.
2. Within 60 days of the date this decision becomes final, the Agency shall determine
the appropriate amount of back pay, with interest, and other benefits (if any) due
Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall receive back
pay (with interest and benefits) for the two days she was placed on AWOL in March
2010 (after being denied a reasonable accommodation), and from the date she was
discriminatorily terminated, April 22, 2010, until the date of her reinstatement.
Complainant shall cooperate in the Agency’s efforts to compute the amount of back
pay and benefits due, and shall provide all relevant information requested by the
Agency. If there is a dispute regarding the exact amount of back pay and/or
benefits, the Agency shall issue a check to Complainant for the undisputed amount
within 60 days of the date the Agency determines the amount it believes to be due.
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.”
3. Complainant shall be paid an amount to compensate her for the tax consequences, if
any, of a lump-sum wage payment according to proof to be provided by
Complainant.
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4. Within 60 days of the date on which this decision becomes final, the Agency shall
pay Complainant attorney’s fees in the amount of $82,339.00 and costs in the
amount of $4,194.77.
5. Within 60 days of the date on which this decision becomes final, the Agency shall
pay Complainant $18,000.00 in nonpecuniary, compensatory damages.
6. Within 60 days of the date on which this decision becomes final, the Agency shall
provide training to responsible Agency employees regarding their responsibilities
under EEO law, with particular focus on the Rehabilitation Act and management’s
responsibilities with regard to reasonable accommodation and retaliation.
7. Within 60 days of the date on which this decision becomes final, the Agency shall
consider taking disciplinary action against responsible Agency employees found to
have discriminated against Complainant. The Agency shall report its decision to the
Commission. If the Agency decides to take disciplinary action, then it shall identify
the action taken. If the Agency decides not to take disciplinary action, it shall set
forth the reasons for its decision not to impose discipline.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include supporting
documentation of the Agency's decision regarding compensatory damages, including evidence
that the corrective action has been implemented.
POSTING ORDER (G0914)

The Agency is ordered to post at its Federal Correctional Complex facility in Florence,
Colorado copies of the attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted both in hard copy and electronic
format by the Agency within 30 calendar days of the date this decision becomes final, and shall
remain posted for 60 consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The Agency shall take reasonable steps to ensure
that said notices are not altered, defaced, or covered by any other material. The original
signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within 10 calendar days of the
expiration of the posting period.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be
paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not
to the Equal Employment Opportunity Commission, Office of Federal Operations -- within
thirty (30) calendar days of this decision becoming final. The Agency shall then process the
claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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
Carlton M. Hadden, Director
Office of Federal Operations

October 2, 2015
Date