EEOC Appeal No. 0120171163
08-14-2018
Jasmine Y. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jasmine Y.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120171163
Hearing No. 560-2015-00123X
Agency No. ARSILL14MAR00901
DECISION
On February 7, 2017, 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 January 13, 2017, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the reasons which follow, the Commission AFFIRMS, as modified, the Agency's compensatory damages award.
ISSUE PRESENTED
Are the amounts of the award for pecuniary and non-pecuniary compensatory damages sufficient to remedy the harm caused by the Agency's discrimination?
BACKGROUND
At the time of the complaint, Complainant worked at the Tincher Child Development Center (CDC) as a Lead Child and Youth Program Assistant, Child Youth and School Services (CYSS), Directorate of Family and Morale, Welfare and Recreation (FMWR) in Fort Sill, Oklahoma. A Haitian, Complainant came to the United States in 2002. She has experience working at child-care centers and has worked in military facilities in Arizona and Japan.
Complainant began working for the Agency in March 2012. During the relevant time period, her immediate supervisor (Caucasian, American) was the Assistant Director at the Tincher CDC. Complainant's second level supervisor (Caucasian, American) was serving on a detail to the position of Tincher CDC Director for nine months, beginning in November 2013.2 Complainant's third level supervisor (Caucasian, American) was the Acting Director of CYSS and her fourth level supervisor (Caucasian, American) was the FMWR Director.
Complainant, whose husband is a member of the U.S. military, relocated from Oklahoma to Illinois in June 2014. She alleged that she did so because of the Agency's claim that she had abused a child by force feeding him at the Tincher CDC. Complainant no longer works for the Agency.3
Regarding the instant matter, Complainant initiated EEO Counselor contact on March 19, 2014. On May 21, 2014, she filed an EEO complaint alleging that the Agency subjected her to harassment on the bases of race (Black) and national origin (Haitian) and reprisal4 when:
1. On March 24, 2014, the Assistant Director accused the Complainant of force-feeding a child; placed Complainant on administrative leave; and did not allow Complainant to see the evidence.
2. From November 2013, to March 19, 2014, Complainant's room staff was removed without notice while the Assistant Director provided extra staff to other lead employees so that other leads were free to walk around or sit in other offices including that of the Assistant Director.
3. On March 13, 2014, Complainant filed a formal Interactive Customer Survey (ICE) complaint against the Assistant Director. The Assistant Director solicited co-workers, CW-1 and CW-2 to write letters alleging adverse treatment by Complainant and to provide them to the Assistant Director to take to her meeting with the CYSS Acting Director.
4. On February 11, 2014, the Tincher Director forced another co-worker into the room to work with Complainant, but allowed other lead caregivers to pick and choose with whom they desired to work.
5. In February 2014, Complainant requested a substitute because of illness. The Tincher Assistant Director secured a substitute, went to Complainant's room in front of staff, waved a sticky note in Complainant's face and stated, "Hey I found someone for you. Remember this when you (sic) going around saying nasty things about me," before loudly slapping the note on the wall.
6. On January 31, 2014, the Tincher Assistant Director refused to acknowledge Complainant while she was in her office to ask for help. The Tincher Assistant Director was helpful to other employees who walked into her office.
7. On January 16, 2014, the Tincher Assistant Director yelled at Complainant and refused to provide a replacement employee to cover Complainant's room to allow her to go to a medical appointment. Three days later, the Tincher Assistant Director went from room to room and found a replacement for a peer when the peer had an unexpected doctor appointment.
8. On December 19, 2013, the Tincher Assistant Director yelled at Complainant and treated her in a disrespectful manner in the presence of other staff members in the room.
9. In December 2013, the Tincher Assistant Director singularly disallowed Complainant to take her morning break at 10:30 a.m. along with the other seven lead employees. The Tincher Assistant Director told Complainant to take her break at 9:15 a.m. even after Complainant took the matter to the CYSS Acting Director.
10. In November 2013, during a baby shower held at Tincher CDC in the presence of Complainant, the Tincher Assistant Director and several co-workers made fun of a former Haitian employee referring to the employee as "crazy Haitian [Person A]" who went "Haitian crazy."
11. On October 13, 2013, the Training and Curriculum Specialist scheduled a lead meeting, canceled it, and re-scheduled it to happen at the Olive Garden restaurant. Neither the Training and Curriculum Specialist or the Tincher Assistant Director told Complainant of the change. Complainant was humiliated and felt unfit to go out into the public with the other lead employees.
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 timely requested a hearing and the AJ held a three-day hearing from April 19-21, 2016, and a compensatory damages hearing on August 30, 2016. The parties submitted written closing arguments to the AJ. Thereafter, the AJ issued a decision finding discrimination on some of the claims and no discrimination on other claims. The AJ also awarded damages for the unlawful discrimination.
The Agency subsequently issued its decision on January 13, 2017, in which it stated that it was adopting the AJ's findings and would fully implement the decision. It is the damages award that Complainant now appeals.
CONTENTIONS ON APPEAL
Complainant, through counsel, essentially re-argues her position made before the AJ. She avers that the appeal is limited only to challenging the award amount as not sufficient and no other issue. She asserts that evidence establishes that the amount of the pecuniary damages was in excess of $62,000 and should be increased, including relocation expenses and medical bills. Complainant also maintains that her compensatory damages award should be increased and how, as a result of the unlawful discrimination, she has suffered and how her job opportunities and quality of life were diminished and affected, including relationships and health, as a result of the unlawful discrimination.
The Agency submits only a statement of agreement with the AJ's damages award and urges that its decision should be affirmed.
ANALYSIS AND FINDINGS
All post-hearing factual findings by an AJ will be upheld, pursuant to 29 C.F.R. � 1614.405(a), 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, � VI.B. (Aug. 5, 2015).
Administrative Judge's Decision
The AJ issued a 70-page decision on December 21, 2016, in which she found discrimination on some of the claims and found no discrimination on other claims. Specifically, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions regarding allegations 2, 4, 6, 10, 11. Regarding allegations 1, 3, 5, 7, 8, 9, the AJ concluded that Complainant was treated disparately based on her national origin; that the Agency had retaliated against her; and that the Agency had subjected her to unlawful harassment. The AJ also found that claim 1, placement on administrative leave, was race-based. We adopt the AJ's decision on these issues, as did the Agency.
Having determined that Complainant was subjected to unlawful discrimination as to some of the claims, the AJ provided remedial relief in her decision. Complainant had requested $200,000.00 in pecuniary and non-pecuniary compensatory damages, and attorney's fees in the amount of $46,200.00. The AJ awarded $20,000.00 in non-pecuniary compensatory damages, and pecuniary damages in the amount of $7,660.05 for medical bills, $67.06 for food, and $1,904.22 for mileage. The AJ also awarded an attorney's fee in the amount of $41,580.00, plus reimbursement for the retainer of $3,500.00. The AJ also awarded $376.32 in legal costs.
Compensatory Damages
When an agency or the Commission finds that the agency has discriminated against a complainant, the complainant is entitled to remedial relief. The 1991 Civil Rights Act authorizes compensatory damage awards in Title VII cases. 42 U.S.C. �198la. The U.S. Supreme Court has held that a complainant may recover compensatory damages in the administrative process. See West v. Gibson, 527 U.S. 212, 213 (1999). A precise measurement cannot always be used to remedy the wrong inflicted; nonetheless, the burden of limiting the remedy rests with the agency. See Davis v. U.S. Postal Service, EEOC Petition No. 04900010 (Nov. 29, 1990).
Compensatory damages may be awarded for past (out-of-pocket) pecuniary losses, future (likely future out-of-pocket) pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the Agency's discriminatory conduct. See Enforcement Guidance: Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991, (Guidance) EEOC Notice No. 915.002 (July 14, 1992), at 8.
The amount of an award of compensatory damages is based on the following factors: (1) severity of the harm; (2) duration of the harm; and (3) extent to which the harm was caused by discriminatory conduct. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Santiago v. Dep't of the Army, EEOC Appeal No. 01955684 (Oct. 14, 1998); Guidance at 11-12, 14. Emotional harm will not be presumed simply because Complainant is a victim of discrimination. Id. at 5. It is the complainant's burden to "provide objective evidence in support of her claim and proof linking the damages to the alleged discrimination." Davis v. Dep't of Homeland Sec., EEOC Appeal No. 0720060003 (June 18, 2007)(citing Papas v. U.S. Postal Serv., EEOC Appeal No. 01930547 (Mar. 17, 1994)). Further, a complainant must establish a nexus between the harm and the discrimination found. When the medical evidence is ambiguous or vague, the Commission will not find a causal connection between the medical issue and the discrimination. The Commission also recognizes that evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).
Title VII does not require federal courts to grant plaintiff a windfall, but only requires an award of "make whole" relief. Haskins v. United States Dep 't of Army, 808 F .2d 1192, 1200 (6th Cir. 1987). Thus, the agency must provide a complainant with full, make-whole relief to restore the complainant as nearly as possible to the position that she would have occupied, absent the discrimination. See e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Emmett W. v. Dep't of Agriculture, EEOC Appeal No. 0120143098 (May 3, 2016); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994).
1. Non-pecuniary damages
Non-pecuniary losses are losses that are not subject to precise quantification. They constitute sums necessary to compensate the injured party for actual harm, even where the harm is intangible. Such losses include, but are not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. Carter v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122266 (Oct. 18, 2012).
A complainant must establish a nexus between the harm and the discrimination found. When the medical evidence is ambiguous or vague, the Commission will not find a causal connection between the medical issue and the discrimination. The Commission also recognizes that evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).
At the damages hearing, Complainant and her brother were the only witnesses who presented testimony. Both testified how Complainant's life had changed and how her health was affected as a result the discriminatory conduct. Complainant also submitted 15 exhibits in support of her damages claim.
The AJ awarded $20,000 in non-pecuniary compensatory damages. In her decision, the AJ recounted the testimony of Complainant and her brother and considered the documentation submitted in support of her claim. The AJ noted that Complainant experienced panic attacks, migraine headaches, depression, loss of enjoyment of life in family activities, anxiety, and marital difficulties. The AJ also reviewed the medical diagnoses contained in medical reports. Considering the nature and extent of the disability, the AJ noted Complainant's testimony that the effects of the discrimination lasted for about six months and found that Complainant produced no evidence that the effects were permanent.
We find an award of $30,000 in non-pecuniary damages more sufficiently remedies the harm experienced by Complainant rather than the $20,000 that the AJ awarded. The increased award is supported by the evidence, consistent with prior Commission precedent, and is neither "monstrously excessive" nor the product of passion or prejudice. Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989); Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999).
In claim 1, for example, the action concerning Complainant for force feeding a child, which was considered child abuse by the Agency and led to her being placed on administrative leave by the Agency, was initiated after Complainant contacted an EEO Counselor. The testimony discloses that the video of the claim of force feeding a child was evaluated by others. Complainant asked to see the video but was denied her request even after the CYSS Acting Director had directed the Tincher Director to allow Complainant to review the video which was alleged to have shown the force feeding.
A Program Operations Specialist, who was previously a Training and Curriculum Specialist for over 17 years, was given the video to provide a second opinion. Her opinion, after viewing the video several times, was that the video showed Complainant feeding the child and not force feeding the child, an 18-momth-old. The Program Operations Specialist also opined that Complainant had not engaged in child abuse. Training and Curriculum Specialist-2 also reviewed the video and determined that the video did not depict child abuse. She testified that she had observed Complainant in the classroom with the children and she had never seen Complainant mistreat a child. Training and Curriculum Specialist-2 testified also that Complainant functioned professionally, was very well trained, and she had children that loved her every day. She also stated that reviewing video was a standard process but that she did not know of any other situation where there so many views by management and done so quickly. The CYSS Acting Director testified that Complainant always conducted herself with integrity and that she had never seen Complainant abuse or endanger a child in any manner and that she would not hesitate to place her own child in Complainant's care.
The Military Police, the Criminal Investigation Command, Military Police Investigations, Social Work Services and the Judge Advocate General all viewed the film and determined that the actions did not meet abuse criteria. The AJ found that she viewed the film and did not observe any actions that might be construed as force feeding. Complainant underwent the type of investigation not seen before.
Testimony revealed that the parent of the child was informed of the incident but did not bring a complaint. Testimony also revealed that the child had a genetic disorder and there were issues with the child's eating skills. Testimony clearly established that the child's mother had spoken to employees about the need to assist the child with eating so that he could receive enough nutrition. In addition, testimony also revealed that other workers were not placed on administrative leave for more than a day, while Complainant was placed on immediate administrative leave and for 90 days, including one employee who had to be driven home because of alcohol on her breath and another employee who had slapped the hand of a child. Also established by the evidence is that co-workers were also solicited to submit complaints concerning Complainant after she began participating in protected activity.
Complainant and her brother testified concerning how the discrimination affected her.5 Here, Complainant had no prior history of depression. Because of the unlawful incidents at work and the harassment to which she was subjected, Complainant was diagnosed for the first time with depression. She was also diagnosed with anxiety. Complainant had suicidal thoughts. She attended therapy and was prescribed medication. Complainant began experiencing migraine headaches; her sleep was affected for which she had to take medication; and she had crying spells. Complainant became irritable. She had to be taken to the emergency room because of chest pains. She lost interest in participating in activities with her two young children who were both under 10 years. Complainant also lost interest in social and family activities in which she had previously engaged. Testimony and documentation reveal that Complainant was instructed not to come to the daycare facility. As a result, Complainant had to abruptly withdraw her daughter who attended the Tinsher CDC. Her marriage relationship suffered. Complainant also felt humiliated and embarrassed when she ran into parents of children and her work colleagues at the military commissary.
Based on the foregoing, a $30,000 nonpecuniary, compensatory award is appropriate. The increased award is designed to remedy the harm that Complainant suffered rather than to punish the Agency for its discriminatory conduct. See Morgan v. Dept. of Agriculture, EEOC Appeal No. 0120101559 (Sept. 13, 2012) (award of $30,000 where discrimination caused harm to career, status at the agency, reputation, personal friendships, and relationship with wife and family and hypertension worsened); Moore v. Dept. of Justice, EEOC Appeal No. 07A60017 (Oct. 17, 2006) ($32,500 award for nonpecuniary, compensatory damages where complainant suffered from intense mental anguish, loss of enjoyment of life, humiliation, injury to reputation, loss of self-esteem, a pronounced lack of energy, and damage to familial relationships due to the agency's actions); Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) ($30,000 awarded for emotional harm suffered during a six-month period).
2. Pecuniary damages
Pecuniary damages are available for out-of-pocket expenses. Just as with claims for non-pecuniary losses, a complainant must show that the loss was caused by the agency's discriminatory conduct.
These damages include reimbursement for medical expenses, job hunting expenses, moving expenses, and other quantitative out-of-pocket expenses. The amount to be awarded for past pecuniary losses can be determined by receipts, records, bills, cancelled checks, confirmation by other individuals, or other proof of actual losses and expenses. The Commission requires documentation in support of these expenses, typically in the form of receipts, bills, or physicians' statements. See Minardi v. U.S. Postal Service, EEOC Appeal No. 01981955 (Oct. 3, 2000); Gause v. Soc. Sec. Admn., EEOC Appeal No. 01972427 (Mar. 8, 2000). Damages for past pecuniary damages will not normally be awarded without documentation.
a. Medical bills
The AJ concluded that Complainant was entitled to the full amount of her claim for her medical bills incurred for conditions caused by the discrimination that she had experienced. The AJ noted that Complainant was asking to be reimbursed by the Agency for the full amount of her pecuniary damages, even though some of the expenses were paid for by her insurer. In so concluding, the AJ applied the collateral source doctrine which holds that "benefits received by a complainant from a source does not reduce the agency liability for damages. The AJ disallowed dermatology expenses because the condition was attributable to a fungus and Complainant had not shown how the discrimination had exposed her to a fungus. The AJ awarded $7,660 for medical costs which are identified in the chart provided in the AJ's decision. Complainant bills were for two ambulance rides to the emergency room ($715.30 + $769.50), an emergency room bill ($558), a Quad City Neurology bill ($940), Genesis Medical ($3,838.00) Eye Surgeons and Pulmonary Associates/Sleep Consultants ($649). The AJ denied $10,000 in future medical bills because Complainant failed to show that she would incur medical bills in the future.
Upon review, we find that the AJ's award and denial of past medical bills was proper. The AJ denied bills that were not shown to be linked to the unlawful discrimination for expenses for which no receipts and other documentation were produced. The Commission has held that pecuniary damages will not be awarded without documentation. Valentine v. Dep't of Justice, EEOC Appeal No. 07A30098 (Dec. 10, 2003), request for reconsideration denied, EEOC Request No. 05A40372 (Feb. 27, 2004). The Commission also notes that the AJ can reject expenses for travel when a Complainant fails to submit bills or receipts. Vereb v. Dep't of Justice, EEOC Appeal No. 01990136 (June 11, 1999).
Complainant made a claim for future pecuniary losses. Future pecuniary losses are losses that are likely to occur after the resolution of a complaint. Alvina S. v. Environmental Protection Agency, EEOC Appeal No. 0120151681 (Jan. 17, 2018). The AJ's finding that Complainant has not shown that she would be entitled to future losses is supported by substantial evidence of record.
Also, we agree with the AJ's application of the collateral source rule. Under the collateral source rule, an agency may not reduce its liability for damages because of payments made to a complainant from a collateral source. A complainant is required only to prove that she incurred the expenses to establish her entitlement to a corresponding damage award. A complainant need not make the additional showing that she paid the expense. The Commission has consistently applied the collateral source rule in determining damages. See Wallis v. U.S. Postal Serv., EEOC Appeal No. 01950510 ((Nov. 13, 1995)(health insurance benefits funded by employer-paid premiums are collateral source funds and, therefore, not subject to offset); Woodrow B. v. Dep't of Health and Human Svcs., EEOC Appeal No. 0120143194 (May 13, 2016); see also Liza B. v. Dep't of Agriculture, EEOC Appeal No. 0120152098 (Aug. 31, 2017)(retirement disability payments not deductible from back pay).
b. Moving expenses
Complainant sought damages for pecuniary losses associated with her move from Oklahoma to Illinois and associated expenses, including moving, fuel, hotel, mortgage payments, and rental payments. The listing of Complainant's expenses is contained in the record which the AJ reviewed and which is also reproduced in the AJ's decision. The AJ found that Complainant failed to show causation between her move from one city to across the country and the Agency's discrimination. The AJ noted that this complaint did not involve termination. In addition, the AJ noted that Complainant's husband who was on active duty had orders to move to a new state in October 2013, at about the same time that Complainant began being subjected to unlawful harassment. Previously, Complainant had chosen to move with her husband during his military career but Complainant chose to move to Illinois.
The AJ was not persuaded by evidence that the unlawful pecuniary losses were a result of the discrimination. Pecuniary damages cannot be awarded without specific documentation to support the claimed expenses. See Canady v. Dep't of the Army, EEOC Request No. 05890226 (Dec. 27, 1989). Accordingly, we leave the AJ's conclusion undisturbed. The substantial evidence of record supports the AJ's finding that Complainant failed to show that the move with its associated expenses were causally connected to the unlawful discrimination.
c. Other expenses
Complainant also sought compensation for annual leave, sick leave, work coupons, and personal property left in her office.
The AJ found that Complainant failed to show that she was not actually compensated for her annual leave. The AJ relied on documentary evidence provided in the record which showed that on October 8, 2014, the Agency paid Complainant $2,363.40. Regarding sick leave, the AJ found that Section 5-22(a) of the Agency's Nonappropriated Funds Instrumentalities Personnel Policy prohibited the Agency from paying for accumulated sick leave. The policy provided that "under no circumstances is a lump sum payment authorized for accumulated sick leave when the employee is separated." In addition, the AJ concluded that Complainant produced no evidence that she was entitled to monetary value for 59-minute work "coupons," which the Agency distributed to employees as employment perks. Regarding her personal property left in the office that she claimed was worth $20,000 and which she testified that the Agency had not returned, the AJ found that Complainant had failed to provide adequate proof to find in her favor.
Regarding the miscellaneous claims set forth above and others not specifically recounted herein, we find that the AJ's decision finding discrimination is supported by substantial evidence. It is significant that those claimed losses, not awarded to Complainant, were not linked to the unlawful conduct or supported by sufficient documentation.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM, as modified, the AJ's decision and award of compensatory damages.
ORDER
Within one hundred and twenty (120) calendar days from the date when this decision is issued or unless otherwise ordered, the Agency, to the extent that it has not already done so, is ORDERED to take the following remedial actions consistent with this decision and the Order below:
1. Pay Complainant $30,000.00 in non-pecuniary compensatory damages.
2. Pay Complainant $7,660.00 in pecuniary compensatory damages for medical bills, $67.06 for food, and $1,904.22 for mileage.
3. Pay attorney's fees in the amount of $45,080.00 and $376.32 in legal costs.
4. The Agency shall provide six hours of training, to management and staff at the Tincher Child Development Center, with a focus on Title VII, retaliation, and harassment. The Agency shall provide proof of the contents of the in-person training provided.
5. The Agency shall consider taking appropriate disciplinary action against the then detailed Director and Assistant Director of the Tincher Child Development Center. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer, referenced herein. 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 for its decision not to impose discipline. If any of the responsible management officials have left the agency, then the Agency shall furnish documentation of their departure date.
6. Complainant is entitled to an additional award of reasonable attorney's fees and costs. Consistent with the statement below entitled "Attorney's Fees", Complainant's attorney must submit to the Agency, a verified statement of attorney's fees and costs. The Agency shall respond to the statement of attorney's fees within thirty (30) calendar days of receipt of the statement.
7. Within thirty (30) calendar days of the date this decision is issued, the Agency shall post a notice, as provided in the statement below entitled "Posting Order."
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 evidence that the corrective action has been implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Tincher Child Development Center in Fort Sill, Oklahoma, 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).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501 (e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. 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 (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.
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 (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's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 14, 2018
__________________
Date
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.
2 At the time of the hearing, she had become the Director of the Cooper CDC.
3 The Agency apparently discharged Complainant in July 2014 for the force-feeding issue and other matters. The Administrative Judge specifically noted that Complainant's termination was not before her as an issue.
4 The Administrative Judge found that evidence adduced at the hearing established retaliation as to some of the claims of the complaint.
5 Complainant's brother was living with her at the time of the discrimination. He testified that he was a general practitioner who had received a medical degree in the Dominican Republic and had practiced in Haiti. Her brother also testified that he was working toward obtaining medical licensure from the U.S. Medical Licensing Examination (USMLE).
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