EEOC Appeal No. 0720140011
09-22-2015
Complainant v. Dep't of the Army
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0720140011
Hearing No. 570-2008-00536X
Agency No. ARMEDCOM07JAN00719
DECISION
Following its October 25, 2013, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency objects to certain remedies ordered by an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge's (AJ) following a finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Director at the Agency's Walter Reed Army Medical Center, Civilian Personnel Advisory Center, in Bethesda, Maryland.
On July 12, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), and reprisal for prior protected EEO activity when she was subjected to a hostile work environment by the actions of a subordinate.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on April 6, 7, 8, and 16, 2010. Following the hearing, the AJ issued a decision on June 28, 2013, concluding Complainant had proven she was subjected to a hostile work environment based on her sex. Further, the AJ determined that Complainant's management subjected her to retaliatory harassment. Therefore, the AJ ordered the Agency to pay Complainant $65,000 in non-pecuniary compensatory damages. The AJ also instructed the Agency to restore Complainant's sick leave by 543.5 hours. In addition, the AJ ordered that the Agency post a notice regarding the finding of discrimination; provide training with no less than seven hours of EEO training with an emphasis on sexual harassment issues; and consider disciplinary action against the Agency officials who have subjected Complainant to harassment. The AJ provided the Agency with the names of the individuals who should be disciplined. The AJ also indicated that, for those who are no longer employed by the Agency, the AJ's decision should be forwarded to the new employing Agency.
Subsequently, on September 12, 2013, the AJ issued his decision on attorney's fees and costs and remedies. The AJ ordered the Agency to pay Complainant's attorney $114,322.61 in fees and $886.18 in costs. The AJ also modified his previous order to allow the Agency to pay Complainant the value of her restored sick leave. Finally, the AJ noted that the Agency facility has since closed. Therefore, the Agency was relieved of posting the notice.
The Agency issued its final order and filed an appeal with the Commission. In its decision, the Agency did not challenge the finding of discrimination or much of the remedial order. However, the Agency indicated that it has decided not to implement the following relief ordered in the EEOC AJ's decisions:
1. Payment to Complainant of the monetary value of restored sick leave and
2. For those individuals who are no longer employed by the Agency, but are employed by another federal agency, the Agency (Army) is to forward a copy of the AJ's decision to the Office of Civil Rights at each employee's new agency.
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. (November 9, 1999). We note that the Agency has adopted the AJ's finding of harassment based on sex and retaliation. Therefore, the only issue before the Commission concerns a portion of the AJ's remedial order.
Order Concerning Former Employees Found to be Responsible for Discrimination
As for the AJ's order to provide copies of his decision to the new employers of the former Agency officials who were found to have created the hostile work environment, the Agency argues that it is unreasonable to require it to determine where its former employees are working. We agree. We do find, however, that the Agency can include a copy of the AJ's decision as part of each identified former employee's official personnel file for the time that employee worked at the Agency. As such, we find that the AJ's order should be modified accordingly.
Sick Leave
As an initial matter, we note that the Agency's final decision only challenged the AJ's order to pay Complainant for her sick leave rather than restoring it. However, in its statement in support of its appeal, the Agency also argued, for the first time, that the AJ erred in his calculation of hours to be restored to Complainant. There is no indication in the record that the Agency raised its objections to the amount of leave ordered by the AJ during the hearing process or, more importantly, in its final order. As such, we will not review the Agency's claim that the AJ's calculation of the hours of sick leave to be restored was incorrect.
The Agency has argued that Complainant is only entitled to restoration of her sick leave, but not its cash value as required by the AJ in his modified order. We agree. First, it is clear that Complainant did not lose any pay as a result of her use of sick leave resulting from the discrimination as it is undisputed that she had adequate paid sick leave to cover her absences.
Complainant retired from the Agency in September 2013, so there is a question as to whether restoration of sick leave would provide her with a meaningful remedy. However, unlike annual leave, a federal employee is not entitled to a cash payment for unused sick leave at the time of retirement. Complainant may, however, be entitled to a recalculation of her annuity based upon additional service credit for any unused sick leave. Therefore, we will modify the AJ's order to require it to restore Complainant's sick leave and file a request on her behalf with the Office of Personnel Management to recalculate her annuity based on any additional service credit she may be entitled to as a result of the additional unused sick leave balance at the time of her retirement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the AJ's remedial order and REMAND the matter to the Agency for further processing in accordance with the ORDER below.
ORDER
To the extent it has not already done so, the Agency shall:
1. Provide Complainant $65,000 in non-pecuniary compensatory damages.
2. Restore 543.5 hours of sick leave to Complainant and file a request on her behalf with the Office of Personnel Management to recalculate her annuity based on any additional service credit she may be entitled to as a result of the additional unused sick leave balance.1
3. Pay Complainant $114,322.61 for attorney's fees and $886.18 for legal costs.
4. Conduct training for the employees who was found to have violated Title VII. The Agency shall address these employees' responsibilities with respect to harassment and unlawful retaliation.
5. Consider disciplinary action against the employees who have subjected Complainant to harassment. The Agency shall report its decision. 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. Moreover, the Agency shall place a copy of the AJ's decision in the official personnel file of each of the employees (identified in the AJ's decision) who have been found to have subjected Complainant to discriminatory or retaliatory harassment.
6. The Agency shall complete all of the above actions within ninety (90) calendar days from the date on which the decision becomes final.
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 verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 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 (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 (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, 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.
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. Hadden, Director
Office of Federal Operations
September 22, 2015
__________________
Date
1 There is some indication in the record that Complainant may be reemployed by the Agency as a retired annuitant. If she continues in this status, the Agency should allow her to elect, if she wishes, to have the restored sick leave credited to her current position rather than applying it to her retirement annuity.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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