Ciera B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 20, 2018

0120161961 (E.E.O.C. Sep. 20, 2018)

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

Ciera B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120161961

Hearing No. 430-2014-00035X

Agency No. 2004-0658-2013100839

DECISION

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 22, 2016, final
order concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Vocational
Rehabilitation Specialist, GS-1715-09, hired under the Schedule A hiring authority, at the
Agency’s facility in Salem, Virginia. On March 15, 2013, Complainant filed an EEO complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of her disability (post-traumatic stress disorder, Attention Deficit

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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Hyperactivity Disorder, dyslexia, and anxiety disorder) and in reprisal for prior protected EEO
activity when2:

1. on November 1, 2012, she informed her supervisor (S1), that her coworker (CW1)
was bullying her;
2. on November 8, 2012, S1 told Complainant to resign, leave quietly, look for
another job, or be fired;
3. on December 12, 2012, S1 stated that “people do not like it when waves are
made” and that Complainant should leave the job for two years and come back;
4. on December 14, 2012, after Complainant contacted the Union and the EEO
office, S1 told her that “no one likes a troublemaker and it will make it more
difficult” for Complainant to get a job and that she should quit;
5. on December 28, 2012, S1 placed her on a performance improvement plan (PIP);
6. on January 8, 2013, S1 told her that “if I knew about you what I know now, I
would not have hired you;” and
7. on January 28, 2013, management issued Complainant a letter of termination
during her trial period, effective February 8, 2013, for failure to qualify during the
trial period.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing and the
AJ held a hearing on August 18-19, 2015. The AJ issued a decision on April 7, 2016, finding no
discrimination with respect to claims (1), (2), (5)-(7). The AJ also found that Complainant failed
to establish that she was subjected to unlawful harassment. With respect to claims (3) and (4),
however, the AJ also found that the Agency had committed an act of per se retaliation. By way
of remedies for the per se retaliation, the AJ ordered the Agency to: pay Complainant $500.00 in
nonpecuniary, compensatory damages and $12,286.00 in attorney’s fees and costs; provide eight
hours of EEO training to the responsible management official; and post a Notice of the finding of
discrimination.

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. As to claims (3) and (4) the
Agency adopted the AJ’s finding of per se retaliation and the ordered remedies. On appeal,
Complainant argues that the AJ erred in finding no discrimination, made improper credibility
determinations, improperly failed to sanction the Agency, and awarded unsatisfactory
compensatory damages.

2 In her formal complaint, Complainant also alleged that she was subjected to unlawful age
discrimination, however she withdrew the basis of age during the hearing. Complainant does not
address the basis of age on appeal.
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ANALYSIS AND FINDINGS

Initially, we address Complainant’s contentions on appeal regarding the manner in which the AJ
conducted the hearing phase. The Commission notes that AJs have broad discretion in the
conduct of hearings, including discovery and the determination of whether to admit evidence, or
permit or compel the testimony of witnesses. See 29 C.F.R. § 1614.109(e); EEOC Management
Directive 110 for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). The Commission
has reviewed the record and finds no abuse of discretion by the AJ. Further, the Commission is
unable to find any evidence of bias, or other reversible error, resulting from the manner in which
the AJ managed this case.

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).

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, assuming, arguendo, Complainant established a prima facie case of disability and reprisal
discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the record shows that Complainant was hired under the schedule A hiring authority,
effective February 27, 2011, with a two-year probationary period and a not-to-exceed period of
four years. From the time Complainant began in the position until approximately June 2011,
CW1 was assigned to provide her with on the job training. The record shows that CW1 was often
frustrated with Complainant’s progress in learning the documentation and computer systems.
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The record also shows that when Complainant informed S1 that she was having difficulties
working with CW1, including CW1 setting unrealistic goals, S1 told her that the goals “were the
essential functions of the position” and therefore not unrealistic, and that Complainant needed to
learn from CW1.

The record shows that S1 met with Complainant on November 4, 2011, to discuss her
performance evaluation. S1 rated Complainant as fully successful, however she pointed out
numerous areas of concern with her performance, including time management, organization, and
communication skills. In March 2012, S1 again met with Complainant to discuss her
performance evaluation, giving her an overall rating of fully successful, but outlining the same
areas of concern with her performance. The record shows that following consultation with S1’s
supervisor and with the human resources office, S1 gave Complainant an unsatisfactory rating on
her fiscal year 2012 performance evaluation and provided her with a performance and
expectations memorandum. S1 states that when it became clear that she was going to terminate
Complainant’s employment prior to the end of her probationary period, she explained to
Complainant that she would have a less difficult time finding other employment if she resigned
in lieu of termination, and provided Complainant with a recommendation for another position
outside the Agency. When Complainant’s performance failed to improve, S1 issued Complainant
a notice of termination, effective February 9, 2013. We concur with the AJ’s finding that
Complainant failed to show that any of the Agency’s articulated reasons for its actions were a
pretext for unlawful disability or reprisal discrimination.

As to Complainant’s contention that the incidents alleged constitute harassment based on her
protected bases, the Commission finds that, since she failed to refute the legitimate,
nondiscriminatory reasons proffered by the Agency for its actions, she also failed to establish
that such actions were taken on the basis of her disability, or prior EEO activity. Accordingly,
Complainant failed to establish that she was subjected to a discriminatory hostile work
environment. See Complainant v. Department of the Navy, EEOC Request No. 05980746
(September 19, 2000).

Next, to the extent that Complainant is alleging that the Agency failed to provide her with a
reasonable accommodation, under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of an otherwise
qualified individual with a disability unless the agency can show that accommodation would
cause an undue hardship. 29 C.F.R. §1630.9. In the instant case, we concur with the AJ’s finding
that, although management was aware that Complainant is an individual with a disability, she
failed to show that she requested a reasonable accommodation or otherwise made it known to
management, prior to being informed that her employment was being terminated, that any of her
performance issues were related to her disabilities. In so finding, we note that an employer is not
required to excuse an employee’s past conduct or performance issues as a reasonable
accommodation. EEOC's Enforcement Guidance: The Americans with Disabilities Act and
Psychiatric Disabilities, EEOC Notice 915.002 (Mar. 25, 1997), at Question 31.

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Regarding claims (3) and (4), we find that the AJ’s award of $500.00 in nonpecuniary,
compensatory damages is appropriate. Nonpecuniary damages are available to compensate an
injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd.,
727 F.2d 1225 (D.C. Cir. 1984). We note that for a proper award of nonpecuniary damages, the
amount of the award should not be “monstrously excessive” standing alone, should not be the
product of passion or prejudice, and should be consistent with the amount awarded in similar
cases. See Complainant v. Department of the Interior, EEOC Appeal No. 01961483 (March 4,
1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). We find that the AJ’s
award is consistent with prior Commission precedent. See Complainant v. Dep't of Veterans
Affairs, EEOC Appeal No. 0120122266 (Oct. 18, 2012) (complainant awarded $500.00 as a
result of Agency's per se interference with EEO process); Complainant v. U.S. Postal Service,
EEOC Appeal No. 0120101454 (December 16, 2010) (complainant subjected to per se reprisal
discrimination and awarded $500 in nonpecuniary, compensatory damages).

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final order and we Order
the Agency to implement the remedies in the Order herein

ORDER
To the extent it has not already done so, the Agency shall take the following remedial actions:
1. Within 60 days from the date this decision is issued, the Agency shall pay
Complainant $500.00 in nonpecuniary, compensatory damages.
2. Within 60 days from the date this decision is issued, the Agency shall pay
Complainant’s attorney’s fees and costs in the amount of $12,286.00.
3. Within 90 days from the date this decision is issued, the Agency shall provide
eight hours of in-person or interactive EEO training to S1, with an emphasis on
EEOC regulations against retalitation.
4. Within 60 days from the date this decision is issued, the Agency shall commit in
writing to Complainant that it will not retaliate against Complainant for filing the
instant complaint or engaging in any other protected EEO activity.
5. Within 60 days from the date this decision is issued, the Agency shall consider
taking disciplinary action against S1 who was 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, then it shall set forth the
reasons for its decision not to impose discipline.

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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). Further,
the report must include supporting evidence that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Salem, Virginia 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).
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or department head, identifying that person
by his or her full name and official title. Failure to do so may result in the dismissal of your case
in court.
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“Agency” or “department” means the national organization, and not the local office, facility or
department in which you work. Filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 20, 2018
Date