0720060035
07-29-2009
Marta Fonda-Wall, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Marta Fonda-Wall,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0720060035
Hearing No. 320-2003-08067X
Agency No. M010039
DECISION
Following its December 22, 2005 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding of discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. The agency also requests that the Commission
affirm its rejection of the relief ordered by the AJ. For the following
reasons, the Commission REVERSES the agency's final order.
BACKGROUND
Substantial evidence in the record supports the AJ's finding of the
following facts:
At all times relevant to this complaint, complainant worked in the
U.S. Marshal Service. This position required the incumbents to carry
a gun and maintain a top secret security clearance.
From 1995 to 1998, complainant's supervisor (S1) had an intimate
consensual sexual relationship with complainant's coworker. Sometime in
1998, the coworker wanted to discontinue her sexual relationship with S1.
However, S1 ignored her request and forced her to have sexual intercourse
and oral sex with him in his office. S1 also subjected the coworker
to verbal abuse in front of her peers. Once the sexual abuse ceased,
the verbal abuse escalated.
Complainant reported S1's abuse of her coworker to her first line manager
(M1), who was a subordinate to S1. Other employees also told M1 about
S1's abuse towards the coworker. The frequency of the reports of abuse
to M1 varied from once a month to once every few months. As a result,
M1 had several discussions with S1 about his abuse towards the coworker,
however, the abuse did not cease. Despite agency policy, M1 did not
report the harassment to more senior agency officials.
In March 2001, the abuse escalated. Complainant observed S1 tear a $10
bill in half, throw half of it toward the coworker and say, "I'll pay
you the other half when I damn well feel like it." A few days later,
complainant heard S1 subject the coworker to verbal abuse while standing
so close to the coworker that she couldn't stand up. Alarmed at what she
saw, complainant stepped between S1 and the coworker, placed her hand
on S1's chest, and said to him, "You've got to stop this. You've got
to stop this right now." Complainant reported what she saw to an EAP
representative. Around April 24, 2001, the EAP representative, who was
a friend of S1, told S1 that complainant had reported his mistreatment
of the coworker.
On May 4, 2001, complainant informed S1 that she was having problems
sleeping and that she was experiencing symptoms of anxiety in
connection with an upcoming execution. S1 told complainant to go home.
Subsequently, S1 purposely misrepresented to the EAP representative
that complainant had reported experiencing "panic attacks" and an
inability to sleep for 6 days. On May 8, 2001, relying solely on
S1's misrepresentations, the EAP representative instructed S1 to take
complainant's weapon as a result of lack of sleep and place her on
light/limited duty.
On or about May 8, 2001, S1 provided a similarly distorted account
of complainant's health to the Acting Chief. Relying solely on S1's
misrepresentations, the Acting Chief directed agency management to
confiscate complainant's government vehicle.
On or about May 11, 2001, S1 falsely accused complainant of revealing
sensitive national security information to party X (herein referred to as
"X"). Specifically, S1 untruthfully alleged that complainant breached
security when she revealed the whereabouts of S1 to X. As a result, X was
removed from complainant's caseload and was put under S1's responsibility.
S1 used his power over X by means of his funds, travel, and other needs
to influence X to corroborate S1's allegations against complainant.
On May 21, 2001, S1 issued complainant a memorandum alleging she had
engaged in leave abuse and placed her on severe leave restrictions.
The basis for the restrictions was S1's erroneous calculation that
complainant had accrued a negative 25 1/2 hours of leave balance.
The leave restrictions subjected complainant to burdensome requirements
relative to the documentation required from medical providers in
circumstances where normally employees were not required to provide
documentation. The memorandum threatened discipline, including removal,
for failure to comply with the leave restrictions.
On May 23, 2001, an agency contracted social worker cleared complainant
to perform her full duties and to have her gun returned to her. When S1
became aware that complainant was to have her gun returned to her, he
became extremely agitated and angry. S1 yelled at complainant and told
her to come into M1's office to retrieve her weapon. When she hesitated,
he yelled "If you want your f--king gun, get the f--k in here right now!"
Once complainant entered the office, S1 became enraged. He slammed the
door shut and began to display aggressive behavior towards complainant.
He accused complainant of impugning his integrity, and then he suddenly
and aggressively lurched toward her and came within 2 or 3 feet of
her body. Complainant then ran out of the office, with S1 and M1
following her. Complainant asked M1 to protect her from S1 because she
thought he was going to attack her. S1 ordered complainant to return to
M1's office. When she refused, S1 said that he was going to write her
up for insubordination. S1 left complainant's workstation, but shortly
returned and said "Just get out of here. Get the f--k out of here and
don't ever come back!"
On May 24, 2001, complainant told the EAP representative that she believes
S1's behavior was in retaliation for her stepping in between S1 and the
coworker when he was verbally abusing her. On May 25, 2001, S1 called
a meeting in his office attended by various subordinates, including the
coworker he had been harassing. S1 discussed the incident on May 23
and, under S1's influence, the subordinates came to a consensus about
what had occurred on May 23. After the meeting, each participant
submitted a narrative of the May 23 event, describing S1's behavior
as normal and unremarkable and attributed the events to complainant's
mental instability. Many of the witnesses later recanted their account
or contradicted their narratives during the hearing. For example, the
coworker who had been harassed later recanted her narrative and stated
that she lied because S1 threatened to destroy her marriage and she was
afraid of her abusive relationship with S1 being revealed.
On or about June 5, 2001, the agency's medical program staff recommended
that the agency should again confiscate complainant's gun and government
vehicle pending receipt of additional information regarding complainant's
medical condition. On June 7, 2001, S1 and M1 confiscated complainant's
gun at a preordained location. M1 contacted the local Police Chief and
requested back up at the meeting place. Coincidentally, during that
conversation the Police Chief stated that he knew complainant because
in May 2001, complainant had displayed her official agency badge to the
local police officers.
On or about June 13, 2001, complainant initiated an OIA complaint against
S1, alleging his verbal abuse towards her coworker was conduct prohibited
by agency policy. On June 18, 2001, the OIA advised complainant that the
matters raised were beyond the jurisdiction of the OIA to investigate
and they closed the matter. Also on June 18, 2001, S1 confiscated
complainant's cell phone for exceeding the allowable minutes of use
during the months of April and May 2001.
On June 27, 2001, S1 initiated an OIA complaint against complainant,
alleging improper use of her official identification during the incident
with the local Police Department in May 2001. Official identification
misuse is prohibited by the agency's Code of Professional Responsibility.
On August 8, 2001, the agency ordered complainant to submit to a fitness
for duty examination, to take place on August 21, 2001. On October 16,
2001, the agency found complainant fit for duty, including carrying a
firearm, without any restrictions or accommodations.
On October 26, 2001, the agency proposed a two-day suspension for
complainant for improper use of her official identification when she
showed it to the local Police Officers.
On November 7, 2001, the agency's Security Programs Manager advised
complainant that her security clearance was being suspended because she
was accused of disclosing sensitive information to X. As a result,
the agency suspended complainant from work for 24 days. On November 12,
2001, the agency assigned complainant to a detail to a non-sensitive
position.
On November 16, 2001, the agency announced a vacancy announcement for a
criminal investigator position. Complainant felt that she was qualified
for the position and applied. She was not selected for the position
because her security clearance was suspended.
On January 22, 2002, the agency notified complainant that, based upon her
security clearance suspension, she would be permanently reassigned to an
office in a different state. The notice further advised complainant that
based upon the mobility agreement that she signed when she first joined
the agency, she would be terminated if she refused the reassignment.
On February 15, 2002, the agency deactivated complainant's top secret
security clearance. The reason given was that, given her duties in her
new assignment, there was no longer a need for her to hold a top secret
clearance. The agency no longer pursued the merits of the original charge
it had leveled against complainant, i.e., that she breached security.
On March 28, 2002, M1 rated complainant as unacceptable on her performance
appraisal for the period of April 2001 to March 2002. In September 2002,
the performance appraisal was revised to acceptable.
Complainant first contacted an EEO counselor on May 25, 2001, to
complain about the sex discrimination towards her coworker and her
reprisal discrimination. On October 28, 2001, complainant filed an EEO
complaint alleging that she was discriminated against in reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when:
1. She was physically intimidated and verbally abused;
2. She was charged Leave Without Pay;
3. The agency revoked her weapon, government vehicle, and cellular
phone;
4. The agency proposed a two-day suspension;
5. Her top secret security clearance was suspended;
6. She was not selected for a position;
7. She was suspended for 24 days;
8. She was transferred to work in another locale;
9. She was permanently reassigned to work in another state; and
10. She received an unacceptable performance evaluation.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing that lasted nine days
and concluded February 5, 2004. The AJ subsequently issued a decision
finding that complainant established by a preponderance of the evidence
that she was subjected to retaliation for prior protected EEO activity
when she was physically intimidated and abused; had severe restrictions
placed on her leave; had her weapon and vehicle revoked; and received a
bad performance evaluation.1 Additionally, the AJ found the suspension
of complainant's security clearance discriminatory because it was based
upon S1's willful retaliatory lies. The AJ further found that the
discriminatory suspension of the security clearance was the proximate
cause of the subsequent 24-day suspension, and the detail and ultimate
relocation to another state were also discriminatory. The AJ awarded
complainant pecuniary damages in the amount of $187,263.72. Complainant
was also awarded non-pecuniary damages in the amount of $150,000.00.
Further, complainant was awarded $199,492.89 in attorney's fees, and
$11,557.02 in legal costs. The AJ also ordered the agency to either
reactivate complainant's security clearance or reconsider its decision
revoking complainant's security clearance and to do so absent retaliatory
influences, to offer complainant reinstatement to her former position
or an equivalent position in a location of complainant's choice, and to
reimburse complainant for pay and/or benefits lost as a result of being
suspended for 24 days and being placed on Leave Without Pay and Absent
Without Leave status.
The agency issued a final order affirming the AJ's finding that
complainant was subjected to harassment based upon retaliation, but
rejecting the AJ's finding that the suspension of the security clearance,
the 24-day suspension, the detail, and the reassignment were within
the jurisdiction of the Commission. The agency also rejected the AJ's
damages award.
CONTENTIONS ON APPEAL
On appeal, the agency concedes that complainant was subjected to
retaliatory harassment by S1 and the agency is liable for that harassment.
The agency argues that the AJ erred when he determined that the EEOC has
the authority to review the actual suspension of complainant's security
clearance. Further, the agency argues that any adverse actions that were
a direct consequence of the suspension of complainant's security clearance
are not actionable under Title VII and should not have been reviewed
by the AJ. Finally, the agency articulates that the Administrative
Judge's remedies must be reviewed and reduced.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Here the AJ found that the suspension of complainant's security clearance
was a direct result of S1's retaliation, and therefore the suspension and
the resulting adverse employment actions were discriminatory. The seminal
case of Department of the Navy v. Egan provides the legal framework for
analyzing security clearance related claims. 484 U.S. 518, 520 (1988).
There, the Supreme Court determined that the Merit Systems Protection
Board did not have "the authority to review the substance of an underlying
decision to deny or revoke a security clearance in the course of reviewing
an adverse action." Further, the Supreme Court noted that "the grant of
security clearance to a particular employee, a sensitive and inherently
discretionary judgment call, is committed by law to the appropriate agency
of the Executive Branch." Id. at 527. Additionally, the Court held that,
since each agency must have broad discretion to determine who may have
access to classified information, an outside non-expert body could not
"review the substance of a judgment and . . . decide whether the agency
should have been able to make the necessary affirmative prediction
with confidence." Id. at 529. The Court further held that no outside
body could determine what "constitutes an acceptable margin of error in
assessing the potential risk," and considered it "extremely unlikely"
that Congress intended to "involve the [MSPB] in second-guessing the
agency's national security determinations." Id. at 531.
In 1989, the Commission issued policy guidance on the national security
exception, explaining that it is an affirmative defense to a charge of
discrimination. Policy Guidance on the Use of National Security Exception
Contained in � 703(g) of Title VII of the Civil Rights Act of 1964,
as amended (EEOC National Security Guidance), EEOC Notice No. N-915-041
(May 1, 1989). As such, employers must raise the affirmative defense
and prove that the employment decision at issue was made because of
national security requirements. Id. Further, the Commission restated
that no one has a right to a security clearance and non-expert bodies
cannot second guess the decisions of agency heads in determining who is
qualified to receive a security clearance. Id. (citing Egan, at 528).
Therefore, the Commission is "precluded from reviewing the substance of
security clearance decisions [and] from reviewing the validity of the
security requirement itself." EEOC National Security Guidance.
Applying Egan and EEOC National Security Guidance, the Commission has
consistently affirmed the dismissal of complainants' claims alleging that
they were subjected to discrimination due to their security clearance
being revoked or denied, finding that such claims fail to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1), and are outside the purview
of the Commission's jurisdiction. See, e.g., Rezaee v. Department of
the Air Force, EEOC Appeal No. 01A60451 (April 25, 2006) (citing EEOC
National Security Guidance); Carr v. Department of the Army, EEOC Appeal
No. 01A44011 (November 4, 2004) (citing EEOC National Security Guidance).
However, the Commission retains authority to review whether the grant,
denial, or revocation of a security clearance was carried out in a
discriminatory manner. Id.; Schroeder v. Department of Defense (Defense
Mapping Agency), EEOC Request No. 05930248 (April 14, 1994).
In Dodson v. Department of Defense, the Commission found discrimination
where a manager sought to have an employee's clearance revoked in
retaliation for filing EEO complaints. EEOC Appeal No. 01954101 (June
13, 1997). The Commission did not address whether the agency actually
decided to revoke the clearance, nor did it analyze the substance
of any information that was part of the decision to grant or revoke
the clearance. The decision addressed the manager's motivation for
seeking to have the employee's clearance removed. Further, in Chatlin
v. Navy, the Commission found that an agency's decision to initiate a
review of a security clearance was not the result of any substantive
decision making process, and was thus reviewable by the Commission.
EEOC Request No. 05900188 (June 1, 1990).
Here, the AJ determined the initiation of the investigation into
complainant's security clearance was retaliatory. Specifically, the
AJ found that complainant did not reveal sensitive national security
information to X, and S1 willfully lied and influenced X to lie in
retaliation for complainant opposing S1's sexual harassment of her
coworker. The AJ found that the suspension of the security clearance
was discriminatory and ordered the agency to reinstate the security
clearance or, in the alternative, to reconsider the suspension without
considering any retaliatory information.
Upon review, we find that this case presents a situation within the
Commission's authority. Here, it is undisputed that the motivation to
investigate and suspend complainant's security clearance was based upon
the discriminatory actions of S1. We note that we are not questioning
the agency's judgment as to whether complainant should have access to
sensitive information; the agency never made a determination on the
merits of whether complainant's security clearance should be revoked for
revealing sensitive information because the investigation was abandoned by
the agency after complainant was relocated. While we find that the AJ was
correct in finding that S1's motivation for initiating the suspension of
complainant's security clearance was retaliatory, we agree with the agency
that the Commission lacks jurisdiction to order an agency to reactivate
an individual's security clearance. However, we find that the Commission
does have jurisdiction to order the agency to reactivate the abandoned
security clearance investigation. In its final agency decision, the
agency acknowledged that it should reconsider complainant's suspension of
her security clearance in light of S1's retaliation. Therefore, we affirm
the AJ's finding that the investigation and security clearance suspension
were based on retaliation, and affirm that the agency must reactivate
the investigation into complainant's security clearance suspension.
Next, the AJ found that the suspension of complainant's top secret
security clearance resulted in three agency actions taken against
complainant: her 24-day suspension, her three-month involuntary assignment
on detail, and her permanent involuntary reassignment. The AJ found that
since the underlying suspension of her security clearance was retaliatory,
the resulting adverse actions were discriminatory as well.
The agency asserts that the Commission does not have jurisdiction
over these claims since they arose from the suspension of the security
clearance. We note that Commission decisions have distinguished between
claims in which complainants are alleging that their security clearances
were revoked and claims in which complainants are alleging that they were
removed or suffered some adverse action subsequent to their security
clearances being revoked. See Okuma v. Department of the Navy, EEOC
Appeal No. 01A31383 (October 14, 2003) (complainant's allegations
that he was reassigned to a non-sensitive area after his security
clearance was revoked states a claim); Lyons v. Department of the Navy,
EEOC Request No. 05890839 (March 22, 1990) (the Commission has limited
review where an individual has been denied a position or discharged from
a position because he does not have a security clearance); Zimmerman
v. National Archives and Record Administration, EEOC Request No. 05920102
(January 24, 1992) (the Commission found that it was not precluded from
considering whether an employee with a disability could be reassigned to
a non-sensitive position after his security clearance had been denied).
Therefore, we are permitted to look at the subsequent adverse actions
against complainant.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct.2 See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Given our decision that the initiation of the suspension of the security
clearance was discriminatory, the agency's subsequent reliance on
the suspension of the security clearance to justify the subsequent
actions taken against complainant is not legitimate. Specifically, the
agency articulated that complainant was suspended for 24 days because
she disclosed sensitive information. Further, the agency stated that
complainant was detailed because her security clearance was suspended
during the investigation, and her position required a clearance. Finally,
complainant was reassigned to another state because her security clearance
was suspended.
Complainant must now show, by a preponderance of the evidence, that
the agency's articulated reasons for its actions were pretext for
discrimination. We first note that complainant was suspended because
of the allegations that she breached security, not because her security
clearance was suspended. Besides the original accounts of S1 and X,
the record does not contain any evidence that would support the agency's
articulated reason for the 24-day suspension. A preponderance of the
evidence of record supports complainant's assertion that she did not
disclose sensitive information as alleged by S1. S1 willfully fabricated
the allegations against complainant in an attempt to retaliate against
her for opposing his sexual harassment of her coworker. Additionally,
the record supports complainant's assertion that S1 influenced X
to corroborate the allegations. Complainant has established, by a
preponderance of the evidence, that retaliation was more likely than
not a motivating factor in the 24-day suspension. Therefore, we find
that the agency's legitimate, nondiscriminatory reason is a pretext
for discrimination.
Next, complainant must show, by a preponderance of the evidence, that the
agency's articulated reasons for detailing complainant and permanently
reassigning her to another state are pretext for discrimination. The
agency asserts that complainant was detailed and reassigned because her
security clearance was suspended. Not only has complainant established
that the articulated reasons are not legitimate, but she has also offered
additional evidence that would establish that the agency's articulated
reasons are pretext for discrimination. Specifically, the record shows
that two other individuals, who had never engaged in prior protected EEO
activity, had their security clearances suspended yet were permitted to
either stay in the their current positions or take paid administrative
leave. Specifically, S1 had his security clearance suspended due to
domestic violence and a violation of a temporary restraining order.
While his security clearance was suspended he was permitted to stay
in his assigned location. The only responsibility taken away from
him was the ability to authorize financial disbursements. Further,
when another employee in complainant's job title had his security
clearance suspended he was placed on paid administrative leave pending
the outcome of his investigation and was not forced to go on detail to a
non-sensitive position. Memoranda in the record suggest that S1 played
a part in the decision to detail complainant and ultimately reassign her.
Further, the agency failed to rebut complainant's evidence that there were
non-sensitive positions in her location that were vacant and complainant
was qualified for that she could have been placed in pending the outcome
of the investigation. Complainant has established that retaliation
was more likely than not a motivating factor in the decision to detail
complainant and permanently reassign her. Therefore, we find that the
agency's articulated reasons are pretext for discrimination.
Damages
In a claim for compensatory damages, a complainant must demonstrate,
through appropriate evidence and documentation, the harm suffered as a
result of the agency's discriminatory action; the extent, nature, and
severity of the harm suffered; and the duration or expected duration of
the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934156
(July 22, 1994); Notice at 11-12, 14; Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence
in support of a claim for pecuniary damages includes documentation showing
actual out-of-pocket expenses with an explanation of the expenditure and,
for non-pecuniary claims, statements from the complainant and others,
including family members, co-workers, and medical professionals. See
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992)
(Notice); Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993). Awards are limited to compensation for the actual harm
suffered as a result of the agency's discriminatory actions. See Carter
v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13.
The agency is only responsible for those damages that are clearly shown
to be caused by the agency's discriminatory conduct. Carle v. Department
of the Navy, supra. To recover damages, the complainant must prove that
the employer's discriminatory actions were the cause of the pecuniary or
non-pecuniary loss. Notice at 8. An award of compensatory damages for
non-pecuniary losses, including emotional harm, should reflect the extent
to which the agency's discriminatory action directly or proximately caused
the harm and the extent to which other factors also caused the harm.
Notice at 11-12.
Pecuniary Damages
Here, complainant was awarded $187,263.72 in pecuniary damages. After a
review of the record, we find that almost all of the pecuniary damages
awarded by the AJ are directly related to the agency's discriminatory
actions. For example: wear and tear on complainant's vehicle in the
amount of $8,859.16; trailer rental and storage costs in the amount of
$3,484.19; moving expenses in the amount of $1,136.00; lodging costs in
the amount of $244.08; lost profit on the sale of complainant's home in
the amount of $65,600.00; tutoring costs for complainant's children due
to readjustment after being involuntarily moved twice in the amount of
$32,000.00; attorney's fees incurred for child custody issues arising
from complainant taking children out of state in the amount of $3,000.00;
cell phone costs in the amount of $4,628.59; fees paid to a special
advocate for complainant's children in the amount of $5,000.00; plane
fare for children to visit their father in her former work location in
the amount of $1,289.00; office supply costs in connection with this
complaint in the amount of $3,000.00; and past and future psychological
care for complainant's children's separation anxiety from their father and
stepfather in the amount of $12,996.60.3 We also find that complainant
submitted sufficient documentation to support her claims.
However, we do not agree with the AJ's award of $46,026.00 for her
children's lost scholarship tuition to Community College. Complainant
asserts that had her children remained in the school at her former
location, they would have been entitled to free tuition at Community
College. We agree with the agency that complainant's children are
young and still many years away from considering college, and various
intervening factors could have affected whether her children would ever
have been able to take advantage of the tuition entitlement. For example,
complainant could have been transferred under the agency's mobility
agreement, the children could have decided to go to school elsewhere, or
they could have decided not go to school at all. Therefore, we reduce
the award by $46,026.00 and award complainant $141,237.72 in pecuniary
damages.
Non-Pecuniary Damages
Complainant initially requested $612,000.00 in non-pecuniary damages.
The AJ awarded complainant non-pecuniary damages in the amount of
$150,000.00.
After a careful review of the record we agree with the AJ that the harm
complainant endured was a direct result of the agency's retaliatory
actions. Complainant's doctor testified that she had never seen
complainant in such a state, that her symptoms were not related to any
prior or unrelated issues, and that her emotional harm was directly
attributable to her work conditions. Additionally, complainant's
doctor was so concerned about complainant's mental and physical health
that she advised complainant not to return to the office unless S1 was
not present.
Complainant established that she suffered a significant amount of
emotional harm from the agency's actions, which manifested itself into
physical harm. Specifically, complainant's doctor found that complainant
was more anxious and upset than she had ever seen her, that her demeanor
changed after the interactions with S1, and that she endured a great
deal of psychological trauma. Complainant felt physically threatened
and afraid that S1 was going to hurt her after he verbally assaulted
her, had her corned against a wall, lunged toward her, and chased her
down the hall to the extent that she had to call for M1's protection.
Complainant did not feel safe at work, and often cried, shook, was
depressed, became anti-social, and felt panicked. Complainant was in
constant fear of S1's next retaliatory act, which left her always feeling
apprehensive, nervous, and concerned for her safety.
Additionally, complainant established that her reputation and professional
life was damaged as a result of S1 and his subordinates lying about
the events that occurred and attributing them to fabricated mental
health problems, which resulted in her being treated as an outcast and a
trouble maker. Complainant was always uncomfortable around her coworkers,
who isolated and alienated her because they were afraid of retaliation
from S1, which caused complainant to be denied special assignments and
other lucrative career opportunities. Further, complainant suffered
humiliation and shame when the rumors about her mental health spread,
and she suffered additional stress and anxiety when she was given a
negative performance evaluation for the relevant time period.
The record supports complainant's assertion that the agency's actions
wreaked substantial havoc on her life outside of the agency. Due to
the two involuntary relocations to two different states, complainant
was alienated from her children and husband, and the moves placed
enormous stress upon her marriage that ultimately resulted in divorce.
She also was forced to endure a custody battle when her ex-husband fought
against complainant taking their children out of state. Complainant also
suffered the stress and anxiety of having to quickly sell her home, the
lost profits from that home, and being forced to place her belonging in
storage during the interim. Further, complainant suffered additional
emotional harm when she was forced to watch the impact the involuntary
reassignments had on her children who were forced to move to another
state, were forced to leave their home, family, and friends, had to
struggle in a new school, were (and still are) separated from their
father, and had to endure the divorce.
Upon review of the record, we note that the AJ failed to take into
consideration the length of time complainant suffered the harm.
Complainant's harm began when she first spoke out against S1's harassment
towards her coworker in March 2001. Complainant is still assigned
to Texas to this day, and she continues to deal with the effects of
the divorce and child custody issues, and the emotional effects of
watching her children's separation anxiety from their father. Further,
complainant has continued to suffer the embarrassment and humiliation of
having her security clearance revoked, being involuntarily transferred,
and dealing with the consequences of a ruined reputation from the lies
that S1 spread about her. In fact, the long term and continuing impact
of the agency's actions were evident during the hearing, when complainant
broke down into tears twice. The record establishes that complainant's
harm has spanned over eight years.
Several Commission decisions have awarded significant compensatory damages
in cases similar to this case. For example, in Glockner v. Secretary
of Veterans Affairs, EEOC Appeal No. 07A30105 (September 23, 2004),
the Commission affirmed an award of $200,000.00 in non-pecuniary
compensatory damages where complainant was subjected to harm for five
years and she suffered humiliation, depression, significant fears,
and her professional reputation was damaged. In Looney v. Department of
Homeland Security, EEOC Appeal No. 07A40124 (May 19, 2005), the Commission
affirmed an AJ's award of $195,000.00 in non-pecuniary compensatory
damages. In that case, complainant was retaliated against when she
was detailed to a location for an extended period of time far from
her home. Complainant's harm included crying, humiliation, depression,
destruction of her spirit and confidence, tension, inability to sleep,
difficulty coping with life, and a physical change in her appearance.
Further, in Mack v. Veterans Affairs, EEOC Appeal No. 01983217 (June 23,
2000); req. for reconsideration denied, Request No. 05A01058 (October 26,
2000), the Commission awarded complainant $185,000.00 in non-pecuniary
compensatory damages. In that case, complainant was depressed, hurt,
embarrassed, felt demeaned, lost his house and automobiles, and lost
custody of his daughter as a result of discrimination.
Additionally, there are District Court cases which are similar to the
instant case with respect to the nature, severity, and duration of
the harm that complainant endured. See Peyton v. DiMario, 287 F.3d
1121 (D.C. Cir. 2002) (upheld the reduction of a jury's non-pecuniary
compensatory damage award from $482,000.00 to $300,000.00, where employee
was retaliated against under Title VII, and as a result was distressed,
fearful, and depressed); Koster v. TWA, 181 F.3d 24 (1st Cir. 1999)
(employee was awarded $250,000.00 for discrimination that resulted in
emotional damages such as stress on his family life, trouble sleeping,
and anxiety); O'Sullivan v. City of Chicago, 474 F.Supp.2d 971
(N.D. Ill. 2007) (employee was awarded $250,000.00 in non-pecuniary
damages when retaliation resulted in loss of reputation, humiliation,
anxiety, headaches, nausea, and withdrawal from her family). Further, we
note that the more egregious the agency's actions are, the more likely it
is that a complainant will suffer significant emotional harm. Here, the
agency's retaliatory conduct was severely egregious, and complainant has
established that her harm was significant. Accordingly, the Commission
finds that complainant is entitled to an award of $200,000.00 in
non-pecuniary damages.
Attorney's Fees and Costs
Complainant was awarded $199,492.89 in attorney's fees, and $11,557.02 in
legal costs. Here, the AJ originally approved an award of $163,422.50
in attorney's fees. Subsequently the AJ increased the award by 15%
after finding that it was reasonable to increase the fee award to reflect
complainant's high degree of success in her compensatory damages award
and the highly competent and complex representation by her attorneys.
We agree that complainant's attorneys spent a reasonable amount of
time on very complex issues. We also agree that the attorney's fees
were reasonable. Therefore, we affirm the AJ's award of $199,492.89,
and legal costs in the amount of $11,557.02.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
agency's finding of no discrimination and order the agency to comply
with the order below.
ORDER
The agency, to the extent it has not already done so, is ordered to take
the following remedial actions:
1. Within thirty (30) calendar days of the date this decision becomes
final, pay pecuniary damages to the complainant in the total amount of
$141,237.72;
2. Within thirty (30) calendar days of the date this decision becomes
final, pay non-pecuniary damages to the complainant in the total amount
of $200,000.00;
3. Within thirty (30) calendar days of the date this decision becomes
final, pay attorney's fees to the complainant in the total amount of
$199,492.89 and legal costs in the amount of $11,557.02.
4. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall reactivate the investigation into the suspension
of complainant's security clearance, taking into account our finding
of discrimination, and if it is determined that she is eligible for a
security clearance, that she be reinstated to her former position or
offered a substantially equivalent position.
5. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall remit to complainant all pay and/or benefits lost
as a result of the agency's retaliatory actions taken herein including
losses incurred as a result of her 24-day suspension, being placed on
leave without pay (LWOP) and absent without leave (AWOL) status, and
being denied administrative leave. Complainant shall cooperate in the
agency's efforts to compute the amount of benefits due, and shall provide
all relevant information requested by the agency. If there is a dispute
regarding the exact amount of benefits, the agency shall restore the
undisputed amount of benefits to complainant within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
6. Within one hundred and eighty (180) days of the date this decision
becomes final, the agency shall provide a minimum of 40 hours of
EEO training to managers at the involved facility focusing on their
obligations under Title VII with special emphasis on harassment and
retaliation.
7. 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 departure date(s).
8. The agency shall post the notice discussed below.
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 (G0900)
The agency is ordered to post at the involved facility 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 (H0900)
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 (K1208)
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 (M1208)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
July 29, 2009
Date
1 The AJ also found that complainant failed to establish that the
revocation of her cell phone and the non-selection were retaliatory.
2 The agency concedes that complainant established a prima facie case
of retaliation.
3 The agency states that the Commission is prohibited from compensating
complainant for her children's harm caused by the agency's discriminatory
actions. The agency points to Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995) and Pohlel v. United States
Postal Service, EEOC Appeal No. 01A54696 (December 15, 2005). These
decisions are distinguishable first, as they state that the Commission
cannot award non-pecuniary damages for harm to wife and children due to
agency's discriminatory actions; and second, as the award in the present
matter is for out-of-pocket expenses incurred by complainant as a direct
result of the agency's discriminatory actions.
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Washington, DC 20507
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