0720170013
04-06-2017
Lewis Z.,1 Complainant, v. Lisa S. Disbrow, Acting Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lewis Z.,1
Complainant,
v.
Lisa S. Disbrow,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 0720170013
Hearing No. 540-2010-00062X
Agency No. 4V1C09009F16
DECISION
Following its October 7, 2016 final order, the Agency simultaneously filed an appeal which the Equal Employment Opportunity Commission (EEOC or Commission) accepts pursuant to 29 C.F.R. � 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge (AJ)'s finding of unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ.
BACKGROUND
During the period at issue, Complainant worked as a Journeyman Electrician at the Agency's Civil Engineering facility located at Aerospace Maintenance and Regeneration Group (AMARG), Davis-Monthan Air Force Base in Tucson, Arizona.
On August 21, 2009, Complainant filed a formal EEO complaint alleging the Agency subjected him to discrimination in reprisal for prior EEO activity when, on June 15, 2009, the Agency reassigned him from the AMARG to the Facilities Maintenance Team (FMT).
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. The AJ held a hearing on June 16 and 17, 2011, and September 26, 2011, and issued a decision on August 8, 2016. The AJ found that Complainant established that he had been subjected to unlawful reprisal for prior EEO activity when he was reassigned.
The AJ determined that on June 8, 2009, Complainant filed an informal complaint alleging that he was discriminated against on the bases of national origin and age when, on June 4, 2009, management yelled and screamed profanities at him in the presence of the entire staff. Complainant's informal complaint against the Maintenance Mechanic Supervisor, also his supervisor, was resolved through a settlement agreement within 24 hours of him filing the complaint. The Deputy Chief of Operation Flight, also Complainant's third-line supervisor, instructed the supervisor to apologize to Complainant in the presence of the entire AMARG staff. After this public apology was made by the supervisor, Complainant withdrew his complaint on June 9, 2009.
The AJ noted that immediately after the supervisor's public apology, the Deputy Chief conducted a meeting at the base, away from AMARG, with the supervisor and AMARG employees. Complainant was excluded from the meeting. During this meeting, the Deputy Chief listened to the employees' complaints against Complainant. Thereafter, the Deputy Chief encouraged the employees to put their complaints in writing so he could bring it to the attention of civilian personnel. On or about June 9 or 10, 2009, the supervisor solicited and gathered written statements from employees and delivered them to the Deputy Chief, along with his own written statement accusing Complainant of disrespectful and disruptive behavior.
On June 15, 2009, Complainant was reassigned from the AMARG to the Facility Management Team. Both the Captain and the Deputy Chief were aware of Complainant's June 8, 2009 complaint prior to his reassignment to FMT. Prior to being moved from AMARG to FMT, the supervisor recommended that Complainant's reassignment to Deputy Chief. The Deputy Chief accepted the supervisor's recommended assignment of Complainant to FMT.
Further, the AJ noted that prior to Complainant's reassignment, all of his performance appraisals had been positive. In September 2009, the Deputy Chief placed a disciplinary action ("971") in Complainant's personnel file. This disciplinary action was related to actions complained of in the written statements solicited from AMARG employees dated June 9, 2009. The record reflects that AMARG is approximately two miles from the main base where the FMT is located. Complainant objected to the reassignment because it would mean a longer commute from his home. Following his reassignment to the FMT, Complainant lost the exclusive use of a truck/van to complete his assignments. Complainant averred that he lost sleep as a result of the transfer to FMT. Moreover, Complainant stated that he feels like a "glorified handyman" at FMT because his assignments were minor, such as changing light bulbs.
In sum, the AJ concluded that the actions by management reassigning Complainant from AMARG to FMT just seven days after he filed a complaint against the supervisor constituted amounted to unlawful retaliation.
Regarding remedies, the AJ ordered the Agency to take the following actions: expunge the 971 disciplinary action from Complainant's personnel file as well as any other files within the Agency's control and/or possession; make an unconditional offer to Complainant to return to AMARG as an Electrician at the same pay rate as he held in July 2009 or at his current pay rate, whichever is greater; pay Complainant $10,000 in non-pecuniary, compensatory damages; pay Complainant's attorney $26,220 in attorney's fees; and pay Complainant $1,037.25 in reimbursement of related costs.
The Agency's October 7, 2016 final order rejected the AJ's findings of discrimination on the basis of retaliation. On appeal, the Agency essentially argues that there was "no factual evidence of discrimination or reprisal." The Agency also argues that the AJ's award of non-pecuniary compensatory damages for Complainant's loss of sleep "was not fully warranted as the Administrative Judge did not consider the Agency's evidence of an alternate basis for the complainant's loss of sleep."
In his brief in opposition to the Agency's appeal, Complainant, through his representative argues that the Agency's appeal was not timely filed, and accordingly, the appeal should be dismissed. Complainant also requests that we affirm the AJ's findings of discriminatory retaliation and the compensatory damages award of $10,000.
ANALYSIS AND FINDINGS
As a threshold matter, we note that Complainant argues that the Agency's appeal was untimely filed. The record reflects that AFCARO, the Agency's final action authority, received the AJ decision on August 8, 2016, and the hearing record on August 30, 2016. Given these circumstances, we determine that the Agency's October 7, 2016 appeal was timely filed. We will proceed to an analysis of the substance of its appellate arguments.
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 � VLB. (November 9, 1999).
The AJ properly found that Complainant was retaliated against when he was reassigned from the AMARG to FMT seven days after filing a complaint against his supervisor. The record shows that the supervisor proceeded to encourage Complainant's coworkers to complain about him and then recommend that he be disciplined and reassigned. The Agency failed to prove that it had a legitimate, non-retaliatory reason for the disputed actions. The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. The Commission finds that the instant complaint, in which Complainant claimed that he was subjected to a series of related incidents of retaliation, including being subjected to a disciplinary action and reassignment from the AMARG to FMT has established his retaliation claim.
We have considered the Agency's arguments. However, we concur with the AJ's determination that the weight of the evidence establishes that Complainant has proven his retaliation claim. Based on the review of the evidence in light of Commission cases regarding non-pecuniary compensatory damages awarded for emotional harm, we find that the AJ's award of $10,000 in non-pecuniary compensatory damages is consistent with what the Commission has awarded in cases where complainants have suffered emotional harm similar in severity and duration to the emotional harm Complainant suffered in the instant case. See e.g., Hamilton v. U.S. Postal Serv., EEOC Appeal No. 01A30899 (March 4, 2004) (awarding $10,000 in non-pecuniary compensatory damages for discriminatory non-selection when complainant suffered anxiety, stress, depression, humiliation, marital strain, and insomnia). We note that this sum is meant to compensate Complainant for the emotional distress he suffered, which was caused by the Agency's discriminatory actions. Finally, this amount meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone, and being consistent with the amounts awarded in similar cases. See Cyhnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
In her final order of remedies, the AJ also ordered the Agency expunge the 971 disciplinary action from Complainant's personnel file as well as any other files within the Agency's control and/or possession, make an unconditional offer to Complainant the opportunity to return to AMARG as an Electrician at the same pay rate as he held in July 2009 or at his current pay rate, whichever is greater, and pay Complainant in the amount of $1,037.24 for reimbursement of costs. We find that the AJ properly analyzed the record in determining that Complainant is entitled to the above mentioned remedies for being subjected to retaliation based on his prior protected activity for filing a complaint against his supervisor.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed here, the Commission REVERSES the Agency's final order which rejected the AJ's finding of discrimination. The Commission REMANDS this matter to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
To the extent it has not already done so, the Agency is ordered to take the following remedial actions within 60 days of the date this decision is issued:
1. The Agency shall expunge Complainant's 971 disciplinary action from his personnel file and any other files within the Agency's control and/or possession.
2. The Agency shall make an unconditional offer to Complainant to return to his prior duty location as an Electrician at the same rate of pay held at the time of his reassignment or his current pay rate, whichever is greater.
3. The Agency shall pay Complainant in the amount of $10,000 in non-pecuniary compensatory damages.
4. The Agency shall pay Complainant's attorney in the amount of $26,220 in attorney's fees.
5. The Agency shall pay Complainant in the amount of $1,037.24 for reimbursement of costs.
6. The Agency shall post a notice in accordance with the paragraph below entitled "Posting Order."
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 (G0914)
The Agency is ordered to post at its AMRG, Davis-Monthan Air Force Base in Tucson, Arizona, 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), 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 (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 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
April 6, 2017
__________________
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.
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