0520130004
05-14-2013
David Feder, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
David Feder,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Request No. 0520130004
Appeal No. 0720110014
Hearing No. 520-2008-00413X
Agency No. F-07-6268
DENIAL
The Agency timely requested reconsideration of the decision in David Feder v. Department of Justice, EEOC Appeal No. 0720110014 (July 19, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
Complainant was, at the relevant time, a contract Linguist with the Agency in its New York Field Office. He had entered into yearly employment contracts with the Agency starting in August 2002. His duties consisted of listening to foreign language recordings and translating them into English. Due to his experiences in World War II and as a Holocaust survivor, he had developed a condition called hyperacusis, which made him overly sensitive to certain sounds and which caused him physical pain, distraction, and disruption. Consequently, he had informed his supervisors at the Agency about this noise sensitivity, and had made requests to be moved to quieter areas of the office and to work on weekends when there were fewer people in the office to create ambient noise.
In late 2005 and early 2006, a series of incidents occurred between Complainant and his coworkers. Complainant then ignored an order from his supervisor not to work on weekends. Complainant was escorted from the office on February 1, 2006. Following an internal Agency investigation, a decision was made not to renew Complainant's contract for Fiscal Year 2007, thereby ending his employment with the Agency on September 30, 2006. Complainant filed an EEO complaint on the bases of disability (physical), religion (Jewish), and reprisal, claiming that he had been subjected to a hostile work environment and denied a religious accommodation, that the Agency had not accommodated his "acoustic disability," and that on November 12, 2006, he was notified that he had been removed from his employment with the Agency.
The Agency accepted Complainant's complaint, but dismissed the claim of reprisal discrimination, finding that he had not engaged in prior EEO activity. Complainant requested a hearing before an EEOC Administrative Judge (AJ). During the pre-hearing litigation of the case, Complainant withdrew his claim of discrimination on the basis of his religion, and represented that he was not pursuing a claim of failure to accommodate his disability. The issue heard at hearing was whether the Agency discriminated against Complainant on the basis of physical disability when on November 12, 2006, he was advised that he was being terminated from employment with the Agency.
The AJ who heard the case held a five-day hearing and subsequently issued a decision in which she found that the Agency had discriminated against Complainant on the basis of disability. She found that Complainant was an individual with a disability because he had a hearing impairment that required him to limit his exposure to noise, and that he was a qualified individual with a disability. She also found that, under a mixed-motive analysis, Complainant had shown that his disability was a motivating factor in the Agency's decision to terminate Complainant's employment, and that the Agency had shown that it would have taken the same action absent the unlawful discrimination. She noted that this did not entitle Complainant to personal relief in the form of reinstatement, back pay, or damages, but did entitle him to declaratory relief, injunctive relief, and attorney's fees and costs.
The Agency filed an appeal from the AJ's decision, in which it rejected the AJ's finding of discrimination based on disability. Complainant filed a cross-appeal as well, in which he argued that the AJ should not have concluded that the Agency would have terminated Complainant even absent a discriminatory motive, and that he was entitled to greater relief than what had been awarded.
Our previous decision affirmed the AJ's ultimate finding of discrimination, but on a different basis than that on which the AJ made a finding. We first made several findings in the course of the decision in response to the arguments put forth by the Agency in its appellate brief. We found that Complainant was to be considered an Agency employee for the purposes of the EEO process, and not a contract employee who would not have been entitled to use the federal EEO administrative complaint process. We held that Complainant's EEO Counselor contact on December 7, 2006 should be deemed timely. We found that the Agency erred when it dismissed the basis of reprisal from Complainant's complaint because Complainant had engaged in prior EEO activity when he requested to be moved to quieter work areas as reasonable accommodation to his sensitivity to noise. The decision noted that the Commission's Compliance Manual section on Retaliation states that requests for reasonable accommodation are protected as EEO activity. The decision found that Complainant's removal was the result of discrimination on the basis of reprisal for Complainant's requests for reasonable accommodation for his sensitivity to noise. It also held that liability could be imputed to the Agency under the "cat's paw" theory, based on the retaliatory animus of the responsible management official who influenced the decision to terminate Complainant's employment. Applying a mixed-motive analysis, we also found that the deciding official had provided a non-retaliatory reason for removing Complainant, but that there was not clear and convincing evidence that the Agency would have removed Complainant absent the discriminatory factor. Therefore, the decision concluded that Complainant was entitled to personal relief, including damages, reinstatement, and back pay.
The previous decision ordered the Agency to retroactively reinstate Complainant, remand the matter to an AJ to hold a hearing on compensatory damages and to reconsider the award of attorney's fees given the revised finding of discrimination, provide training to the relevant Agency officials, consider discipline of the responsible management officials, and to post a notice of a finding of discrimination at the New York Field Office. The decision also noted that Complainant would be entitled to back pay.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the Agency argued that the previous decision was clearly erroneous in its determination that Complainant was discriminated against based on reprisal, and in not specifically addressing the issue of whether Complainant is an individual with a disability. The Agency argued that the evidence did not support a finding that Complainant had ever actually requested a reasonable accommodation based on an asserted disability, and therefore that there was no protected EEO activity on which to rest a finding of reprisal discrimination. It claimed that Complainant's various requests to several supervisors for a quiet work environment based on his "sensitivity to noise" were merely to address his personal desire to improve his health and work productivity. The Agency also argued that the information in the internal investigation which led to Complainant's termination, relating to Complainant's requests to move work stations to escape office noise, was not enough to establish discriminatory animus. The Agency asserted that the responsible management official did not have a retaliatory motivation sufficient to find retaliation through the cat's paw theory of liability.
The Agency's request for reconsideration further posited that if the finding on the basis of retaliation was overturned, Complainant would not then be able to prevail on a finding of disability discrimination, as the AJ held, because he had not established that he was an individual with a disability. The Agency has argued to the AJ, on initial appeal, and now in its request for reconsideration that the testimony of Complainant's treating psychiatrist was insufficient to show that his hyperacusis was a physical impairment, or that Complainant had been properly diagnosed with it by a doctor with the appropriate expertise. The Agency disputed that Complainant's hyperacusis is a physical disability, as opposed to a mental or psychological disability. Therefore, the Agency argued that Complainant's disability discrimination claim was not established.
The Agency also argued that the decision would have a substantial impact on the policies and practices of the Agency in that the order of reinstatement could place the Agency in a position of taking actions which would conflict with other government policies and regulations. Complainant, as a federal contract Linguist with the Agency, was employed through the use of yearly contracts. The Agency argued that it could be required to enter into contracts with Complainant for fiscal years 2007 through the present, which would then obligate it to pay Complainant out of funds for fiscal years which were completed and for which the funds were no longer available. This could be seen as in conflict with federal contracting rules and regulations. It also claimed that the number of hours Complainant would have worked in those fiscal years would be speculative, and that there was no evidence in the record as to Complainant's mitigation of his damages through other employment. The Agency asked the Commission to provide some guidance as to how the back pay calculation should be arrived at. Further, it requested clarification as to the length of Complainant's future reinstatement which was being ordered by the Commission, given that Complainant operated on yearly contracts, contingent on satisfactory performance and behavior. The Agency represented that it had offered interim reinstatement to the position of contract Linguist to Complainant, as per the Commission's regulations.
Complainant filed a statement in opposition to the Agency's request for reconsideration in which he argued that the Agency's request should be denied, except for its request to clarify relief. He argued that it was irrelevant as to whether his disability was physical, or was a physical disability resulting from psychological trauma. He also argued that the finding of discrimination based on retaliation should be affirmed, as the responsible management official knew that Complainant's requests for a quieter work station and the ability to work weekends were in effect requests for reasonable accommodation of his disability. Complainant concurred with the Agency's request to clarify the award and calculation of relief, noting that he generally worked overtime each month, and that he did not believe that he had been required to mitigate his past damages, which he stated should only apply to an award of front pay.
The Agency filed a response to Complainant's opposition statement in which it disputed Complainant's statements regarding his disability, and disputed that Complainant's supervisors would have understood that Complainant had requested reasonable accommodation for his condition. As such, it again argued that the supervisors would not have been able to discriminate based on reprisal as they would not have understood his requests to be protected EEO activity. The Agency again noted that clarification of relief was needed, given Complainant's request for overtime hours in the amount of 40 hours each month, and the Agency's changed budget circumstances in the years when the complaint was being litigated and a corresponding change in the availability of overtime. The Agency argued that Complainant was incorrect when he stated that he had not been required to mitigate his past damages, and that that mitigation only applied to front pay. It urged the Commission to clarify how to calculate the back pay award and other issues pertaining to relief.
ANALYSIS/DETERMINATION
Findings of the previous decision
We find that the Agency's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency.
We find that the Agency is taking too narrow a view of when it is on notice that an employee has requested a reasonable accommodation. We note that our policy guidance and cases have consistently stated that a complainant need not use the "magic words" of "reasonable accommodation" when asking for a change in work conditions in relation to a health condition. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002) at Q.1. Instead, the employee need only inform the Agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. U.S. Postal Service, EEOC Appeal No. 0120044720 (Feb. 24, 2006).
Complainant satisfied this criteria when he requested a quiet work environment away from office ambient noise, and the ability to work on weekends, due to his noise sensitivity. Supervisors were aware of the origin of Complainant's condition, namely the psychological trauma due to his experiences as a Holocaust survivor, as evidenced through their testimony. Testimony also supported a finding that Complainant's many requests to have a quiet office environment had drawn the ire of supervisors, who regarded his "constant complaining" as an issue.
We have also consistently held that a request for a reasonable accommodation is a form of protected EEO activity for the purposes of establishing a claim of retaliation. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, 8-II.B.2. (May 20, 1998) (Compliance Manual); Raju v. Dep't of Veterans Affairs, EEOC Appeal No. 01986574 (Nov. 2, 2001). Therefore, the previous decision was not clearly erroneous in its finding that Complainant was discriminated against based on reprisal for his requests for a quieter work environment and the ability to work on weekends.
Given that we are affirming the finding of the initial appeal that Complainant was discriminated against based on retaliation, we find that we need not address the Agency's argument that Complainant did not establish that he is an individual with a disability, as it would not change the relief ordered.
Clarification of relief
The Agency requested that the Commission clarify the relief ordered in light of Complainant's status as a contractor, and the intricacies of federal contracting regulations.
We find that it would satisfy our Order, and place Complainant in the same position he would have been in absent the discrimination, for the Agency to pay Complainant a lump sum of back pay without entering into multiple, retroactive Basic Ordering Agreements.
As far as how to calculate the back pay due to Complainant, we find that this issue should be remanded to the AJ, along with the hearing on Complainant's entitlement to compensatory damages, for evidence to be taken on, including but not limited to, the following: The Agency should present evidence which would show the number of hours in each fiscal year for which it required translation services through the New York Field Office for the five languages which Complainant had been contracted to translate, namely, Hebrew, French, Yiddish, Dutch, and German. It is logical that the amount of translation for each could have varied over the successive years, and that the Agency's requirement for this service would not have been a static amount between the time that Complainant ceased providing services on February 1, 2006 and the present. The AJ should make a finding as to how many hours Complainant would have worked in each fiscal year based on this evidence, and calculate the appropriate back pay for each fiscal year. There should also be evidence entered as to the amount of overtime which was requested and granted in each year with respect to translating these languages, and to which Complainant may have been entitled had he been employed. The AJ should also make a finding as to any attendant benefits that would be due Complainant under the Basic Ordering Agreement which governed the provision of Complainant's services, given that, as a contractor, he would not have received the "benefits" usually included under an award of back pay.
Evidence should also be presented by Complainant on his attempts to mitigate his damages, i.e., his replacement employment, in this intervening period. A back pay claimant under Title VII generally has a duty to mitigate damages. The burden is on the agency, however, to establish, by a preponderance of the evidence, that a complainant has failed to mitigate his damages. See 29 C.F.R. � 1614.501(d); McNeil v. U.S. Postal Serv., EEOC Request No. 05960436 (Dec. 9, 1999). The Agency may pay Complainant in one lump sum payment, in the absence of retroactive Basic Ordering Agreements, and it shall include the appropriate interest on the back pay award.
We also find that the Agency is only required to reinstate Complainant for one prospective yearly contract. As Complainant's services were contracted by the Agency on a yearly basis, contingent on his satisfactory performance and behavior, reinstatement for the period of one year would not place him in any greater a position he would have been in absent the discrimination.
CONCLUSION
Therefore, after reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The Commission, however, MODIFIES the ORDER contained in the previous decision. The decision in EEOC Appeal No. 0720110014 is MODIFIED, and the complaint is REMANDED to the Agency for further processing in accordance with our ORDER below. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the modified Order as set forth below.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall submit to the Hearings Unit of the EEOC's New York District Office the request for a hearing on Complainant's entitlement to back pay, in accordance with the guidance delineated above, compensatory damages, and additional attorney's fees within fifteen (15) calendar days of the date this decision becomes final. The Agency is also directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall determine whether Complainant is entitled to compensatory damages, both pecuniary and non-pecuniary, and/or any additional attorney's fees, consistent with this decision and the decision in 0720110014, and shall determine the appropriate amount of back pay and any attendant benefits, consistent with this decision. The AJ shall issue a decision on the remedies awarded in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
2. Within sixty (60) calendar days of receipt of this decision, the Agency shall offer Complainant a one-year reinstatement to his position as a contract Linguist at the FBI's New York Field Office, or a substantially equivalent position. The offer shall be made in writing and include a written position description. Complainant shall have fifteen calendar (15) days from receipt of the offer to accept or decline the offer. Failure to accept the offer within fifteen (15) days will be considered a declination of the offer, unless the individual can show that circumstances beyond his control prevented a response within the time limit.
3. The Agency is directed to provide at least eight (8) hours of EEO training for the responsible management official(s), addressing their responsibilities with respect to eliminating discrimination in the workplace with an emphasis on retaliation, the current state of the cat's paw theory of liability, and their obligations to provide reasonable accommodations under the Rehabilitation Act.
4. The Agency shall 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 separation date(s).
5. The Agency shall post copies of the attached notice in accordance with the statement entitled "Posting Order."
6. 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.
POSTING ORDER (G0610)
The Agency is ordered to post at the FBI's New York Field Office copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (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)), 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 (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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 14, 2013
Date
2
0520130004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130004