07A30079
07-21-2004
Taveah George, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Taveah George v. Department of Health and Human Services
07A30079
July 21, 2004
.
Taveah George,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 07A30079
Agency Nos. IHS07498; IHS01000
Hearing No. 310-A0-5371X
DECISION
Following its February 28, 2003 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) finding that the agency subjected
complainant to a hostile work environment on the bases of her sex
and disability, and did not provide her a reasonable accommodation.
The agency also requests that the Commission affirm its rejection of
the AJ's order of remedies. For the following reasons, the Commission
REVERSES in part, and AFFIRMS in part, the agency's final order.
Complainant, a former Supervisory Employee Relations Specialist,
GS-671-12, employed at the agency's Oklahoma City Area Office, filed
formal EEO complaints with the agency, alleging that the agency had
discriminated against her on the basis of her sex (female), in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., on the basis of disability, in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq., and on the basis of reprisal for
prior EEO activity [arising under the Rehabilitation Act] when she was
subjected to a hostile work environment beginning in or about July 1998,
that resulted in her reassignment from a Supervisory Employee Relations
Officer position, GS-230-12, to a Health Systems Specialist position,
GS-671-12.
In her complaint, complainant alleged that she was subjected to the
following unwelcome conduct from management, which taken as a whole,
constitute unlawful harassment: Her supervisor (S1) ignored her during
meetings; S1 attacked and demeaned her verbally; S1 failed to share
information with her that was pertinent to her program; S1 asked all
of the male department heads, and not her, to fill in as a personnel
manager in S1's absence; S1 rarely took complainant's recommendations
into consideration; S1 understaffed complainant's department, however,
when a male department head requested assistance, he usually received
it; S1 usually did not permit complainant to attend annual personnel
officers conferences, while male department heads were allowed to
attend; S1 refused to sign a performance appraisal that complainant
had prepared for an employee under her supervision; complainant was
permitted to work from home between April and November 1998, but was
only granted such permission for two weeks at a time, and therefore,
complainant was required to continually request the same accommodation;
complainant did not have a valid EPMS for 1998; on approximately October
30, 1998, complainant was reassigned to a non-supervisory position;
in approximately May or June 1999, S1 allowed confidential medical
information about complainant to be disclosed without her permission;
and, on July 20, 1999, complainant received an �excellent� rather than
an �outstanding� rating on her 1997 EPMS.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
Following a hearing, the AJ found that complainant was subjected to a
hostile work environment on the basis of her disability. In so finding,
the AJ determined that complainant was an individual with a disability
pursuant to the Rehabilitation Act, in that she was substantially limited
in major life activities related to her mobility. Specifically, the
AJ credited complainant's testimony that due to lupus and rheumatoid
arthritis she is �unable to perform routine household tasks because
of significant limitations on her ability to walk, stand or sit for
extended periods.� AJ Decision at 26. The AJ also noted complainant's
testimony that her chronic rheumatoid arthritis flares up as a result
of stress. The AJ then found that the agency provided complainant
with a reasonable accommodation when it permitted complainant to work
at home for a period of time in 1998. However, the AJ concluded that
when the agency reassigned complainant to a non-supervisory position,
this constituted a denial of reasonable accommodation because the agency
made the reassignment without first engaging in the required interactive
process with complainant. The AJ noted that complainant had not asked
to be assigned to a new area, but had merely requested to be retained in
her own supervisory position with a different supervisor. The AJ also
found that S1 subjected complainant to a hostile work environment based
on her sex. In so finding, the AJ concluded that the complained-of
harassment was adequately severe or pervasive to be unlawful. The AJ
found no discrimination as to complainant's allegation of a hostile work
environment based on reprisal for prior EEO activity.
The agency's final order rejected the AJ's finding of discrimination on
the bases of sex and disability, and accepted the AJ's finding of no
discrimination as to the hostile environment claim based on reprisal.
On appeal, the agency argues that the AJ's credibility determinations are
not supported by the record. In addition, the agency argues that the AJ
erred in finding that complainant was an individual with a disability,
and that she proved that the agency subjected her to a disability-based
hostile work environment, and failed to accommodate her disability.
As to sex-based harassment, the agency argues that complainant is
not similarly-situated to her male comparator, and that moreover, the
record is devoid of evidence of sex-based animus on the part of S1.
The agency additionally argues that it is unlikely that the same person
who hired complainant (S1) would subsequently discriminate against her.
The agency notes, however, that there likely was a personality conflict
between complainant and S1. The agency requests that the Commission
affirm its final order.
In her response to the agency's appeal, complainant argues that the
agency failed to issue a proper final order, and that the agency's
appeal to the Commission was untimely. Complainant requests that we
reverse the final order, and implement the AJ's decision and order for
remedial action. Initially, we address complainant's Motion for Dismissal
of the agency's appeal. A review of the record indicates that the AJ
sent an incomplete copy (missing several pages) of her bench decision
to the parties on January 10, 2003. By letter dated January 21, 2003,
the AJ sent a complete copy of her bench decision to the agency, noting
that it should replace the first incomplete copy. The agency asserts
that it received the decision on January 28, 2003. On February 28, 2003,
the agency issued a timely final order, and simultaneously filed a notice
of appeal with the Office of Federal of Operations. Complainant's Motion
for Dismissal of Appeal is denied because we find that the agency is in
compliance with 29 C.F.R. � 1614.110(a).
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.
Initially, we find that the AJ erred in finding that complainant was
denied a reasonable accommodation. In so finding, we note that the
record indicates that the agency allowed complainant to work from home
from approximately April to November 1998, pursuant to her request.
Additionally, assuming arguendo that complainant is an individual with a
disability within the meaning of the Rehabilitation Act, a request for
a reassignment to a new supervisor does not constitute a request for
reasonable accommodation. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915.002, Question 33 (rev. Oct. 17, 2002) (�An employer does
not have to provide an employee with a new supervisor as a reasonable
accommodation.�). Therefore, we AFFIRM the agency's final order to the
extent that it found that the agency did not unlawfully deny complainant
a reasonable accommodation.
We now turn to addressing complainant's allegations of retaliatory and
sex-based harassment. First, as to reprisal, it is well-settled that
harassment based on an individual's prior EEO activity is actionable.
Roberts v. Department of Transportation, EEOC Appeal No. 01970727
(September 15, 2000) (citing Ray v. Henderson, 217 F.3d 1234 (9th
Cir. 2000); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886
(7th Cir. 1998)). In order to establish a claim of harassment based upon
her prior EEO activity, complainant must show that: (1) she engaged
in prior EEO activity; (2) she was subjected to unwelcome conduct;
(3) the harassment complained of was based her 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 McCleod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). Here, the record indicates that
complainant engaged in prior EEO activity when, in or about March 1998,
she requested the reasonable accommodation of working from home. It is
also clear from the record that S1 was aware of complainant's prior
EEO activity. We further find that substantial evidence supports a
finding that complainant satisfied all of the remaining criteria, and
that she was the victim of retaliatory harassment as to several of the
afore-mentioned incidents.
As to complainant's claims of sex-based harassment, we note that
it is well-settled that harassment based on an individual's sex
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,
the complainant must show that: (1) she belongs to the statutorily
protected classes; (2) she was subjected to unwelcome conduct related to
her membership in those classes; (3) the harassment complained of was
based on sex and/or race; (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 Henson v. City of
Dundee , 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems
Inc., EEOC Notice No. 915.002 (March 8, 1994). We find that substantial
evidence of record supports the AJ's finding that complainant satisfied
all of these criteria, and that she was the victim of sex-based harassment
concerning several of the afore-mentioned incidents.
We further find that the sex-based and retaliatory harassment culminated
in a tangible employment action; namely, complainant was reassigned
out of her area to a non-supervisory position that she did not request
or desire.<1> In so finding, we note that the record supports that
complainant requested a new supervisor who would not subject her to
harassment, however, she did not request to leave her area, nor did she
request to be placed in a non-supervisory position. We note additionally
that management did not discuss the reassignment with complainant prior
to sending her the letter of reassignment.
In the context of supervisory liability, the Supreme Court and the
Commission have moved away from the commonly used categories of �quid
pro quo� and hostile work environment harassment, finding it more
useful analytically to distinguish between harassment that results in
a tangible employment action and harassment that creates a hostile
work environment. See Burlington Indus. V. Ellerth, 524 U.S. 742,
760-65 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);
EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002, at 2, n. 7 (June 18, 1999).
In Ellerth and Faragher, supra, the Supreme Court made clear that
employers are subject to vicarious liability for unlawful harassment by
supervisors. 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. Accordingly, in this
case, the agency is liable for the sex-based and retaliatory harassment
of complainant, which culminated in her reassignment.<2>
We now turn to addressing remedies. On appeal, the agency contends that
there should be no award of compensatory damages since the agency provided
complainant with a reasonable accommodation. The agency also requests
clarification of the AJ's order to pay future medical co-payments.
The agency additionally contends that the order to reassign complainant
to the same position, but to another supervisor, is not reasonable.
Compensatory Damages
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the CRA,
codified as 42 U.S.C. � 1981a, authorizes an award of compensatory
damages as part of the "make whole" relief for intentional discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in Enforcement
Guidance: Compensatory and Punitive Damages Available Under � 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992)
(Guidance). Briefly stated, the complainant must submit evidence to
show that the agency's discriminatory conduct directly or proximately
caused the losses for which damages are sought. Id. at 11-12, 14;
Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994) req. for recons. den. EEOC Request No. 05940927 (December 11,
1995). The amount awarded should reflect the extent to which the
agency's discriminatory action directly or proximately caused harm to
the complainant and the extent to which other factors may have played
a part. Guidance at 11-12. The amount of non-pecuniary damages should
also reflect the nature and severity of the harm to complainant, and
the duration or expected duration of the harm. Id. at 14.
In Carle v. Department of the Navy, the Commission explained that evidence
of non-pecuniary damages could include a statement by the complainant
explaining how he or she was affected by the discrimination. EEOC Appeal
No. 01922369 (January 5, 1993). Statements from others, including family
members, friends, and health care providers could address the outward
manifestations of the impact of the discrimination on the complainant.
Id. The complainant could also submit documentation of medical or
psychiatric treatment related to the effects of the discrimination. Id.
Non-pecuniary damages must be limited to the sums necessary to compensate
the injured party for the actual harm and should take into account the
severity of the harm and the length of the time the injured party has
suffered from the harm. Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995).
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly
or proximately caused by the agency's discriminatory conduct. Guidance
at 8. Pecuniary losses are out-of-pocket expenses that are incurred as a
result of the employer's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
Past pecuniary losses are the pecuniary losses that are incurred prior
to the resolution of a complaint via a finding of discrimination, an
offer of full relief, or a voluntary settlement. Id. at 8-9.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses. Note, however, that compensatory
damage awards only became available to complainants after the effective
date of the CRA of 1991, November 21, 1991.
Here, complainant requests $185,000.00 in non-pecuniary damages, and
$4,910.41 for past co-payments for medication, and $168,000.00 for future
co-payments for medication. We begin by addressing non-pecuniary damages.
Complainant's rheumatologist (R1) testified that prior to the agency's
discriminatory conduct, complainant's rheumatoid arthritis had been
�rocking along. It was still inflamed, but it was easier to control.�
R1 stated that complainant's rheumatoid arthritis and lupus worsened
substantially as a result of the agency's discriminatory conduct.
R1 explained that these auto-immune diseases are directly affected by
stress. R1 further asserted that complainant suffered from depression
and anxiety due to the worsening of her conditions. R1 additionally
stated that complainant will need to receive aggressive treatment
(i.e. chemotherapy) indefinitely, and possibly for the remainder of her
life. R1 additionally stated that due to the worsening of complainant's
condition, complainant would certainly not be able to have children
with her husband. Complainant's husband (H1) also provided testimony
that there was a marked difference in complainant's life as a result
of the discriminatory harassment. H1 testified that complainant
became emotionally destroyed; she did not want to go anywhere, her
self-confidence was undermined, and her relationship with her stepson
was affected. Additionally, H1 noted that due to the severity of her
arthritis, complainant needed help dressing herself and buttoning her
clothes.
After a thorough review of the record, we find that the AJ's conclusion
that complainant's conditions were substantially exacerbated due
to the discrimination, to be supported by substantial evidence
of record. We agree with the AJ that an award of $125,000.00 is
appropriate to compensate complainant for her pain and suffering
during the relevant time period. We point out that non-pecuniary
compensatory damages are designed to remedy a harm and not to punish
the agency for its discriminatory actions. See Memphis Community
School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating that
compensatory damages determination must be based on the actual harm
sustained and not the facts of the underlying case). The Commission
notes that this award is not �monstrously excessive� standing alone,
is not the product of passion or prejudice, and is consistent with
the amount awarded in similar cases. See Leatherman v. Department
of the Navy, EEOC Appeal No. 01A12222 (December 14, 2001)($100,000.00
awarded where discrimination caused complainant to suffer from suicidal
thoughts, inability to sleep, chest pains, migraine headaches, anxiety,
depression, and she had to be hospitalized on two occasions); Santiago
v. Department of the Army, EEOC Appeal No. 019955684 (October 14, 1998)
($125,000.00 awarded where sex and age-based discrimination by supervisor
caused complainant depression and other emotional and mental disorders,
severe chest and stomach pains, digestive problems, and incidents of
shortness of breath); Cook v. United States Postal Service, EEOC Appeal
NO. 01950027 (July 17, 1998)($130,000.00 awarded where hostile work
environment caused employee to suffer from Atypical Paranoid Disorder).
There is no award of future medical co-pay amounts or future sick leave,
as these claims are highly speculative and inadequately supported by
medical documentation.<3>
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
affirms the portion of the agency's final order finding no denial of
reasonable accommodation, but reverses the portion of the decision
finding no retaliatory or sex-based harassment, and remands the matter
to the agency to take corrective action in accordance with this decision
and the Order below.
ORDER
Within sixty (60) days of the date this decision becomes final and to
the extent it has not already done so, the agency is ordered as follows:
Offer complainant reassignment to her prior position as an Employee
Relations Specialist, GS-671-12. Complainant is not to be in the
chain of command of any individual who was found in this case to have
discriminated against complainant;
Pay complainant $125,000.00 in non-pecuniary damages;
Pay complainant co-payments in the amount of $4,910.01 for medication
and services, to the extent that they were purchased due to complainant's
severe depression and exacerbated condition, between 1997 and 2002.
Restore 372 sick leave hours if complainant can show it is directly
attributable the agency's discriminatory actions;
Provide EEO training to the individual(s) found to have discriminated
against complainant, regarding their obligations pursuant to Title VII
and the Rehabilitation Act, with special emphasis on the provisions
regarding retaliation and harassment.
Consider taking appropriate disciplinary action against the responsible
management officials. The Commission does not consider training to
be disciplinary action. The agency shall report its decision to the
compliance officer. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s).
Pay attorney's fees in the amount of $52,740.00 and costs in the amount
of $2,251.45.
Post the attached notice on all employee bulletin boards indicating that
it has been found to have discriminated against an employee in violation
of the Commission's regulations and Title VII and the Rehabilitation Act.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 21, 2004
__________________
Date
1 We are not persuaded by the
evidence of record that the �excellent� rather than an �outstanding�
rating on her 1997 EPMS was unlawfully motivated.
2 Based on our findings that complainant was subjected to harassment
on the bases of sex and reprisal, we need not address complainant's
allegations of disability-based harassment, as complainant would not be
entitled to any further relief.
3 We will not disturb the AJ's order that the agency pay complainant
$4,910.01 as reimbursement for past medical co-payment amounts, because
the agency has not specifically disputed this award on appeal. For the
same reason, we also will not disturb the AJ's order to restore 372 sick
leave hours if complainant can show they are directly attributable
the agency's discriminatory actions. On appeal, the agency asks
that no attorney's fees or costs be awarded in the event that the
Commission finds no discrimination, however, the agency fails to
otherwise specifically dispute the award of $52,740.00 in attorney's
fees or $2,251.45 in costs, in the event that we found discrimination.
Therefore, we will not disturb the award of attorney's fees and costs.
There is no award of back pay or front pay as there is no finding that
a promotion was denied to complainant as a result of the discrimination.