Kenyatta S.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jun 3, 2016

0720150016 (E.E.O.C. Jun. 3, 2016)

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

Kenyatta S.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0720150016

Hearing No. 410-2013-00093X

Agency No. 187-3-3768

DECISION

The Agency filed a timely appeal requesting that the Commission affirm its rejection of an
Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission
affirm its rejection of the relief ordered by the AJ in the amount of $8.000.00 for non-
pecuniary compensatory damages. For the following reasons, the Commission REVERSES
the Agency’s final order.

BACKGROUND

Complainant worked as an Operating Accountant at the Federal Penitentiary in Atlanta,
Georgia. On March 20, 2014, she filed an EEO complaint alleging that her managers
discriminated against her on the basis of disability (residual effects of on-the-job injury which
occurred on January 18, 2012) by ordering her off the clock on January 30, 2014, and refusing
to allow her to return to duty until she was cleared by her treating physician. She claimed that
the Agency’s action amounted to a denial of her request for a reasonable accommodation.
1This 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.

0720150016

2
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.
During discovery, the Agency submitted interrogatories, document production requests, and
requests for admissions, particularly whether Complainant brought any grievances or initiated
any other proceedings raising the same bases or issues as the instant complaint. When
Complainant failed to respond to the Agency’s discovery requests, the Agency filed a motion
to compel.

The AJ did not rule on the Agency’s motion until after the hearing, which was held on
February 7, 2014. At the conclusion of the hearing, the AJ issued a bench decision finding in
Complainant’s favor. The Agency’s representative reminded the AJ that she still had not ruled
on the motion to compel discovery, arguing that some of the items within the scope of the
discovery request were relevant to the issue of damages.

The Agency stated that upon receiving the requested responses from Complainant, it
discovered that Complainant had filed a union grievance on the same matter over one week
before filing the instant EEO complaint, whereupon it filed a motion with the AJ to reopen the
case and dismiss the complaint. The AJ did not respond to the Agency’s request for a
conference call on what it characterized as a “jurisdictional” issue.

On June 4, 2014, he Agency held a hearing on damages and on September 3, 2014, issued her
second and final decision in the matter. The AJ found that Complainant had been
discriminated against as alleged and awarded her $8,000 in pecuniary damages. The Agency
subsequently issued a final order declining to fully implement the AJ’s decision and filed the
instant appeal.

On appeal, the Agency reiterates that the complaint should be dismissed, arguing that the AJ
abused her discretion in not ruling on its motion to compel discovery in a timely fashion and
not entertaining its motion to reopen and dismiss the case. The Agency conceded, however,
that the AJ’s liability finding was correct and that it would accept the $8,000 damages award in
the event that the Commission upholds the AJ’s decision. Complainant responds that the
Agency owes her an additional $12,082.10, which represents compensation for 381.5 hours of
leave that she was forced to take as a result of being ordered off the clock on January 30,
2014.

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

0720150016

3
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.

This appeal raises two issues. The first issue is the alleged abuse of discretion by the AJ. The
second is whether the AJ erred in not awarding Complainant $12,082.10 for lost leave.
Because the Agency conceded both liability and the compensatory damages award, the AJ’s
findings and conclusions on the merits of the complaint are not now before us.

The Agency bases its contention regarding the AJ’s abuse of discretion on its reading of EEOC
Regulation 29 C.F.R. § 1614.107(a)(4), which states that prior to a request for a hearing the
Agency shall dismiss an entire complaint where Complainant has raised the matter in a
negotiated grievance procedure that permits allegations of discrimination and Section 1614.301
indicates that Complainant has elected to pursue the non-EEO process [emphasis added].
There is no question that Complainant filed a negotiated grievance on March 9, 2014, in which
she raised the same matter that she raised in her EEO Complaint which she filed eleven days
later on March 14. Investigative Report, pp. 12-13; Agency’s Motion to Reopen the Case and
Dismiss the Complaint, Exhibits 2 & 3.

Regulation 1614.107(a)(4) makes clear that dismissal is mandatory until Complainant requests
a hearing. Once a Complainant actually makes that request, however, 29 C.F.R. §
1614.109(b) makes it equally clear that the decision to dismiss a complaint pursuant to
1614.107(a) becomes a matter of discretion for the AJ.2 In charging an AJ with abuse of that
discretion, the party making that charge invariably faces a very high bar.3 Here, the Agency
has not provided any evidence that the AJ abused her discretion.
2Administrative Judges may dismiss complaints pursuant to § 1614.107 or upon an Agency’s
motion to dismiss a complaint [emphasis added]. The use of the word, “may” in Section
1614.109(b) clearly places the decision to dismiss the complaint within the broad scope of the
AJ’s discretion to regulate the conduct of the hearing.

3The Administrative Judge shall have the power to regulate the conduct of a hearing. 29
C.F.R. § 1614.109(e). The Administrative judge has full responsibility for the adjudication of
the complaint. EEO Management Directive 110 (August 5, 2015), Chapter 7, Section III(D).
This responsibility gives the AJ wide latitude in directing the terms, conduct, or course of
EEOC Administrative hearings. Douglas F. v. Equal Employment Opportunity Commission,
EEOC Appeal No. 0120122183 (December 4, 2015); Andy B. v. Department of Veterans
Affairs, EEOC Appeal No. 0120131912 (October 28, 2015); Complainant v. United States
Postal Service, EEOC Appeal No. 0120122616 (June 23, 2015); Turner v. United States
Postal Service, EEOC Request No. 0520110239 (April 12, 2011); Ponisciak v. Social Security
Administration, EEOC Appeal No. 0120082062 (April 23, 2010); Clarke v. Department of the
Army, EEOC Appeal No. 01A33392 (May 25, 2004); Bey v. United States Postal Service,
EEOC Appeal No. 01A15147 (December 12, 2002); Duff v. Department of Housing & Urban
Development, EEOC Appeal No. 01A15239 (December 21. 2001).

0720150016

4
We now address Complainant’s contention that she is entitled to equitable relief in addition to
compensatory damages. At the damages hearing held on June 4, 2014, Complainant testified
that as a result of being sent home from work on January 30, 2014, she was forced to use
381.5 hours of leave, and that the monetized value of that leave was $12,082.10. Damages
Hearing Transcript, p. 5. She contends on appeal that the AJ merely committed an oversight
error in not awarding her $12,082.10 in leave restoration. Because a finding of discrimination
gives rise to a presumption of entitlement to an equitable remedy, the Agency must restore
Complainant’s lost leave unless it can prove, by clear and convincing evidence, that
Complainant would not have been entitled to that remedy even if discrimination had occurred,
Complainant v. Department of Agriculture, EEOC Appeal No. 0120131896 (May 22, 2014).
Because neither party has submitted any evidence on this issue, we will direct the Agency to
conduct a supplemental investigation in order determine whether and to what extent
Complainant is entitled to leave restoration.

CONCLUSION

After a careful review of the record in its entirety, including considerations of all statements
submitted on appeal, we REVERSE the Agency’s final order and adopt the findings and
conclusions of the Administrative Judge that Complainant had been discriminated against on
the basis of disability when she was denied a reasonable accommodation on January 30, 2014,
and sent home from work. We REMAND this matter to the Agency for further processing
consistent with this decision and the Order below.

ORDER (C0610)

To the extent that it has not already done so, the Agency is ORDERED to take the following
remedial action within thirty (30) calendar days of the date upon which this decision becomes
final:

1. If the Agency has not yet made an award of compensatory damages in the amount of
$8,000, it shall issue a check to Complainant in that amount.

2. The Agency shall conduct a supplemental investigation limited in scope to the issue of
whether and to what extent Complainant is entitled to restoration of leave that she was
forced to expend following the discriminatory incident that had occurred on January 30,
2014. It shall issue a check for the monetized value of said leave, together with interest
and any other benefits due, unless it presents clear and convincing evidence that
Complainant is not entitled to restored leave despite its act of discrimination.
Complainant shall fully cooperate with the Agency as it gathers the information
necessary to make its determination.

3. 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

0720150016

5
include supporting documentation verifying that the corrective action has been
implemented.

POSTING ORDER (G0914)

The Agency is ordered to post at the Federal Penitentiary in Atlanta, Georgia 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 becomes final, 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 at the address cited in the paragraph entitled
"Implementation of the Commission's Decision," within 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)), 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

0720150016

6
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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

0720150016

7
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. “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

June 3, 2016
Date