[Redacted], Brook V., 1 Complainant,v.William J. Burns, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Aug 12, 2021

Appeal No. 2019005657 (E.E.O.C. Aug. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brook V.,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. Appeal No. 2019005657 Hearing No. 570-2012-00055X Agency No. 10-18 DECISION Following its August 7, 2019, final order, the Agency filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of the EEOC Administrative Judge’s (AJ) decision finding discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Complainant filed a cross appeal challenging other aspects of the AJ’s decisions. For the reasons that follow, we MODIFY the Agency’s final order. BACKGROUND On January 5, 2009, Complainant entered duty with the Agency as an Operations Officer (Officer), GS-11, Step 10, assigned to Section 1. From January 5, 2009 to March 2009, Complainant’s chain of command was S1, First Level Supervisor/ Deputy Team Leader; S2, Team Leader; S3, Deputy Chief; S4, Deputy Chief, and S5, Chief. In March 2010, she filed a formal complaint against the Agency alleging that she was discriminated against and subjected to a hostile work environment because of her disability (cancer), sex (female) and in reprisal for engaging in EEO activity when from January 5, 2009 to January 28, 2010, she was singled out 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. 2019005657 2 for less favorable treatment, menacing words, detrimental acts and behaviors, a pattern of fabrications, and slandering of her reputation and character which culminated in the termination of her employment. After an 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. Complainant timely requested a hearing. A hearing was held October 13 - 15, and 19th 2015. On November 18, 2016, an Interim Decision on Liability and Damages Pending Attorney Fees and Costs was issued. The AJ’s final decision was dated May 15, 2019, with an Order Entering Judgment issued on June 28, 2019. AJ’s Decision During the hearing, the AJ found that Complainant was diagnosed in June/July 2008 with stage zero breast cancer (precancerous) and she underwent a mastectomy shortly after her diagnosis. She scheduled breast reconstruction surgery for January 2009. In January 2009, Complainant informed S2 that she had surgery for the time she was scheduled to be in new employee orientation. S2 is alleged to have stated, “if someone told me you had breast cancer, I’m not certain I would have given you the job.” Hearing Transcript (TR) at 84. Complainant rescheduled the surgery for April 2009. After the start of duty, Complainant and her co-workers participated in administrative orientation and additional training. Management provided the Officers, including Complainant, with assignments consistent with their backgrounds. Complainant, however, did not believe that her assignment matched her skill set. During the administrative orientation, Complainant filled out the necessary forms for insurance coverage through the Agency. During orientation sessions, S2 is alleged to have referred to Complainant as “special needs” and also told her coworkers to refer to her as “special needs.” TR at 97. During a break, Complainant testified that she commented on the fact that her fellow trainees were mostly all male. S2, she noted, was present. Afterward, Complainant stated that she was denied necessary information; and was required to take driving and remedial English classes unlike her fellow trainees. Upon the completion of her training course, on March 31, 2009, Complainant’s day to day tasks were managed by A1, Branch Chief, Section 2; S1 and S2 managed administrative matters such as her travel, time and attendance, salary and benefits. On April l, 2009, Complainant went on leave for surgery, which was conducted on April 7, 2009. Complainant had to pay $20,000.00 out of pocket for her breast reconstruction surgery. This, Complainant maintained, was due to the Agency’s failure to provide her with insurance prior to her surgery. 2019005657 3 According to Complainant, in April 2009, she went to the EEO office to report alleged harassment by S1, S2, and other management at Section 1, but was told by someone in the EEO office that filing a complaint could delay her proceeding to the official training phase, and mark her as a “dud.” On May l9, 2009, S3 met with Complainant and informed her that her official training scheduled for July 2009 had been cancelled by the Training Center because of her breast cancer treatment. Thereafter, Complainant reported to various Section 1 officials that she was being harassed and treated differently because she had breast cancer. TR at 147. On December 10, 2009, Complainant traveled overseas and met with B1, a former colleague/mentor, and a foreign national. B1 was her Ph.D. advisor/professor.2 According to Complainant, B1 mentioned to Complainant he knew D1. Complainant maintained that she did not meet with D1, personally, and that she reported her contact with B1 to her Section 2 managers, i.e., A1 and A2. TR 183, TR at 370. On December 30, 2009, S3 sent a note to the security office requesting a security interview/investigation regarding Complainant’s suitability. On January 11, and January 12, 2010, Complainant was interrogated regarding her contact with a foreign national. Complainant was cleared of suspicion of espionage. ROI at 435. TR at 199. On January 25, 2010, S5 submitted a request for enforced administrative leave pending the termination of Complainant’s contract and the revocation of her security clearance. The request outlined several behaviors that led Section 1 to question her veracity, judgment, reliability, trustworthiness and suitability for continued employment with the Agency. On January 28, 2010, the Agency notified Complainant that she was being placed on 30 days of administrative leave with pay and her contract would be terminated at the end of the 30-day period. On February 27, 2010, Complainant’s employment with the Agency ended. The AJ found credible, Complainant’s testimony that S2’s stated that, “if someone told me you had breast cancer, I’m not certain I would have given you the job.” The AJ further found that this was direct evidence of S2’s animosity towards Complainant’s disability. The AJ also noted the testimony of R1, Chief, Human Resources, that Complainant’s cancer could have a “big effect on her being able to perform daily life activities” in her position. The AJ noted that R1 discussed Complainant’s disability and insurance issues with S2 and that her testimony, along with that of S2, was direct evidence that the Agency based its employment decisions on Complainant’s disability. The AJ found that the Agency’s failure to provide Complainant with primary insurance coverage,3 giving her a less favorable duty assignment, delaying her training, and its ultimate decision to terminate her employment were all “[t]ainted by discrimination based on Complainant’s disability.” 2 Among her degrees, Complainant received a master’s degree. 3 The AJ found that Complainant’s private insurance coverage lapsed, and she was thereafter placed under the Agency’s back-up plan as of March 31, 2009. 2019005657 4 With respect to Complainant’s claim of harassment, the AJ found that the direct evidence of animosity towards Complainant’s disability permeated every aspect of Complainant’s employment relationship with the Agency. The AJ noted Complainant’s testimony that S2 directed her to tell her male colleagues about her breast cancer diagnosis, and that she complied with S2’s directive because she felt intimidated by S2’s threat to terminate her if she did not disclose this information. A1 testified that Complainant informed her about S2’s directive, but that she advised her that it was not appropriate and that she was not obligated to talk abut her medical condition with co-workers. ROI Tab E-17. The AJ further noted A1’s testimony that Complainant’s relationship with Section 1 was “extremely strained” and continued to deteriorate while she worked with her. Id. A1 believed the hostility was personal and seemed intended to drive Complainant out of the organization. Complainant, she stated, was well regarded within her unit and had favorable relationships with all levels of management. Based on the preponderance of the evidence, the AJ found that Complainant was subjected to harassment based on her disability. In addition to S2 directing Complainant to inform her male colleagues about her breast cancer diagnosis, the AJ cited the following incidents as further examples of discriminatory harassment: Complainant being admonished on several occasions for failing to comply with travel regulations; being called “special needs”; not being approved for primary insurance coverage; being unfairly accused of not reporting her contacts with her former colleagues; being told that she asked too many inappropriate questions of her current colleagues and trainers; being ordered to take driving lessons because of an alleged poor driving record; being ordered to take remedial English and to complete work books on basic English skills; being accused of having improper meetings with other individuals; being denied necessary information; being denied access to the medical leave bank; and other accusations. With respect to her claim of sex discrimination, the AJ noted Complainant’s testimony that all her male counterparts received their insurance, access to the medical leave bank annual leave, and necessary information without any problems but that she was treated less favorably with respect to the terms and conditions of her employment. She indicated that her male counterparts, among other things, regularly engaged in conduct which directly violated the Agency’s rules of behavior such as incurring driving infractions like DUIs. Upon finding that Complainant established a prima facie case of sex discrimination, the AJ found that the Agency failed to articulate a legitimate, nondiscriminatory reason for why Complainant was treated differently than her male counterparts. In this regard, the AJ found that the Agency did not explain why Complainant was denied a secondary level of primary insurance coverage. She also noted that S2 did not deny the allegation that males did receive primary insurance coverage, leave benefits, necessary information, and all the other benefits of employment that Complainant did not receive. The AJ did not find S2 credible when she testified that she was not aware that male Officers had violated other rules in place for trainees because she was their primary supervisor and that, unlike the male Officers under her supervision, she gave close scrutiny to all of Complainant’s activities. 2019005657 5 With respect to Complainant’s claim of retaliation, the AJ found that Complainant established a prima facie case of retaliation. At the start of Complainant’s employment, she alerted the Agency that she would require time off for reconstructive breast surgery, i.e., a request for accommodation, which was protected EEO activity. The AJ also noted Complainant’s testimony that she raised a concern about the low number of females in the program, a reference to the possibility of discrimination, and how this comment later became one of the grounds for her alleged lack of fitness for employment. Complainant also indicated that she reported to various Section 1 officials that she was being harassed and treated differently because she had breast cancer. The AJ found that the advice Complainant received would likely have a “chilling effect” on a prospective complainant. Moreover, she found that the Agency was aware of Complainant’s EEO activity and that there was a nexus between that activity and the adverse treatment she received, i.e., the cancellation of her training, not being provided with insurance coverage, not being provided with necessary information, or access to the medical leave bank or annual leave calculations. The Agency maintained that it cancelled Complainant’s official training because of her breast cancer treatments but the AJ found that this did not address why her surgery in the spring of 2009 would interfere with training scheduled for the summer of 2009. With respect to the Agency’s denial of other benefits, the AJ found that it gave no explanations aside from its general claim that Complainant was incompetent and failed to complete paperwork. The AJ found that this explanation was not worthy of belief because the Agency’s email communications established that it alone was responsible for failing to process Complainant’s paperwork. Accordingly, the AJ found that Complainant established that the Agency was more likely than not motivated by retaliation when she was denied benefits, not provided with necessary information, and when she was not allowed to attend official training. With regard to the specific reasons provided by the Agency for Complainant’s termination, i.e., (a) lack of veracity and integrity, (b) inappropriate solicitation of sensitive information, (c) unreported contacts with former colleagues, (d) alleged unauthorized contact with D1, (f) consistent lack of adherence to Agency administrative requirements, (e) questionable management of her expenses, and (g) the results of a psychological review, the AJ found that although S4 and S5 jointly made the decision to terminate Complainant it was based on misinformation given to them by S1 and S2. In other words, S4 and S5 were used as “cats’ paws” to discriminate against Complainant.4 The AJ found that the Agency’s explanations for Complainant’s termination was not supported by evidence but instead was a pretext to mask retaliation for Complainant’s protected EEO activity. 4 Under the cat’s paw theory, animus and responsibility for an adverse action can be attributed to a supervisor who was not the ultimate decision maker, if that supervisor intended the adverse action to be a consequence of their discriminatory conduct. See Feder v. Dep’t of Justice, EEOC Appeal No. 0720110014 (Jul. 19, 2012). 2019005657 6 Regarding reason (a), the AJ specifically noted Complainant’s testimony that B1 told her that he knew D1 had a need for a research assistant and that she reported her contact with B1 to A1 and A2 and the fact that he mentioned D1’s name to her. The AJ found that S1 and S2, upon finding out about the contact, reported that Complainant had a job interview with D1. The AJ noted S5’s testimony that he was more concerned about the various accounts Complainant supposedly gave about the event, but the AJ noted that S4 testified that S1 and S2 told her that Complainant had direct contact with D1. S4 did not speak directly with Complainant to verify the story, thus the AJ found that the evidence supported the conclusion that S1 and S2 were responsible for the inconsistency, not Complainant. Neither S2 nor S4 could provide any other example where Complainant was supposedly misleading or gave inconsistent stories. Regarding reason (b), the AJ noted S2’s comment that this issue arose from her belief that Complainant’s questions regarding the number of women in the training program were inappropriate. The AJ found, however, that this issue was essentially Complainant voicing a concern about possible discrimination in the workplace, and that the Agency’s reliance on this as a reason to terminate her employment was direct evidence of retaliation for which the Agency was liable. With respect to reason (c), the AJ found that the Agency failed to substantiate any unreported contacts. With respect to reason (d), the AJ found that the allegation that Complainant met with D1 was unsubstantiated. Regarding reason (e), the AJ found that that the Agency’s claim Complainant failed to adhere to the Agency’s requirements was discredited by her determination that this was evidence of disability and reprisal discrimination. Moreover, she noted A1’s testimony that she gave Complainant initial approval to take time off but was overruled by Section 1 management. When she contacted S1 to explain that Complainant had not lied about obtaining approval, A1’s efforts were met with hostility, the AJ found. With respect to reason (f), the AJ found that the Agency described this allegation as Complainant failing to appear at meetings to resolve accounting issues surrounding her expenses. The AJ noted that the investigation did not support a finding that Complainant behaved any differently than other Officers. S5 testified that Officers often get into trouble with handling money. The AJ found no indication in the record as to why Complainant’s conduct was more egregious than that of her male counterparts. With respect to reason (g), the AJ noted the Agency’s determination that Complainant’s patterns of behavior were personality driven and could not be remedied; however, the AJ found that the evaluation was conducted for discriminatory reasons, specifically, because Complainant had a number of health concerns such as cancer. The AJ also noted an email between S3 and S2 where S3 advocated for another psychological evaluation based on concerns that Complainant could not shoulder the stresses of training and her serious health condition. 2019005657 7 The AJ found that this was further evidence that the Agency drew a connection between Complainant's disability and its employment decisions concerning her. The AJ, among other things, ordered the Agency to pay Complainant non-pecuniary and pecuniary compensatory damages, back-pay, two years of front-pay,5 and attorney’s fees and costs. The Agency was also directed to provide training to S1, S2, and S3 and to consider disciplining them. The AJ’s June 28, 2019 Order Entering Judgment was presumed to have been received by the Agency on July 3, 2019. The Agency, on August 7, 2019, issued a final order rejecting the AJ’s finding that Complainant was discriminated against regarding her termination and that she was subjected to a hostile work environment based on her disability, sex, and in retaliation for engaging in protected EEO activity. The Agency also argued that: (a) the AJ erred by awarding non-pecuniary damages for untimely discrete acts; (b) failed to analyze whether this was a mixed-motive case, which would have prohibited Complainant from obtaining personal relief, i.e., damages; (c) erred by awarding Complainant language pay; (d) erred by awarding Complainant out-of-pocket medical expenses allegedly incurred from 2009 through 2021, two years after the entry of judgment in the case; and (e) erred by ordering the Agency to pay Complainant $100,000 in additional pay. Upon issuing its final order, the Agency simultaneously filed an appeal with the Commission. The Agency indicated that it would delay any and all payments pending appellate resolution of the case, other than those that addressed “prospective pay and benefits.” The Agency calculated the undisputed amount of front pay and benefits to be $180,922.00, i.e., Complainant’s GS-11, Step 10 salary including locality pay for the Washington Metropolitan area ($90,461.00 x 2 years). The Agency also indicated that it would arrange to pay Complainant the undisputed amount within 90 days. Complainant, in her cross appeal, argued, in pertinent part, that the Agency’s appeal was untimely; that the AJ’s determination that Complainant’s base pay was $83,236 per year was in error due to an incorrect Agency exhibit. The actual amount, according to Complainant, is $89,324.40. Complainant also argues that the AJ erred by not finding that she would have been deployed outside the United States and therefore limiting her to locality pay for the Washington Metropolitan area, and not providing for overseas, hazard, and annual language incentive pay; and by requiring that she submit receipts to justify per diem for the years following her termination in 2010, and for February 2010. 5 The parties agreed that front pay in lieu of reinstatement was appropriate. 2019005657 8 ANALYSIS AND FINDINGS At the outset, we remind the parties that the Commission’s regulations provide that “[a]ny statement or brief on behalf of the agency in support of its appeal must be submitted to the Office of Federal Operations within 20 days of filing the notice of appeal.” 29 C.F.R. § 1614.403(d). Any statement or brief in opposition to the appeal must be submitted within 30 days of the receipt of the Agency’s statement or brief. 29 C.F.R. § 1614.403(f). There is no provision in our regulations for the parties to respond to each other’s briefs. As for Complainant’s request that we dismiss the Agency’s appeal on the grounds that it is untimely, we decline. The record indicates that the AJ’s Order Entering Judgment was issued on June 28, 2019 and was presumed to have been received by the Agency within five days, i.e., July 3, 2019. As the AJ indicated in her Order, the Agency had forty days after receipt of “this decision” to file its appeal. Accordingly, we find the Agency’s August 7, 2019, appeal to be timely. On appeal, Complainant also argued that the Agency’s actions warrant dismissal of its appeal for violating the Commission’s regulations providing for interim relief. See 29 C.F.R. § 1614.505(b). We disagree. 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. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VI.C (Aug. 5, 2015) provides that on appeal to the Commission, the burden is squarely on the party challenging the AJ’s decision to demonstrate that the AJ’s factual determinations are not supported by substantial evidence. See id. In this case, this means that the Agency and Complainant have the burden of pointing out where and why the AJ’s findings are not supported by substantial evidence. Cf. id. (pointing out that “[t]he appeals statements of the parties, both supporting and opposing the [AJ’s] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ’s] factual determinations are supported by substantial evidence”). 2019005657 9 Agency’s Appellate Arguments The Agency’s appeal raises the following issues: 1. Whether the AJ erred when she found the Agency liable for the discriminatory termination of Complainant’s employment based on sex and disability, because her decision is not supported by substantial evidence in the record. 2. Whether the AJ erred when she found that Agency liable for a hostile work environment based on sex and disability, because her decision is not supported by substantial evidence in the record. 3. Whether the AJ erred when she assessed damages against the Agency, because her decision contains errors of law and is not supported by substantial evidence in the record. Issues 1 and 2 We find that there is substantial evidence in the record to support the AJ’s determination that Complainant was discriminated against and subjected to harassment based on her disability, sex, and in retaliation for engaging in protected EEO activity. As was noted above, substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” the fact that the Agency can point to alternate non-discriminatory conclusions does not establish that substantial evidence does not support that AJ’s factual findings. In this case, the AJ relied profoundly upon her determination that Complainant testified credibly and that Agency witnesses, specifically, S1 and S2, did not. We concur with Complainant’s statement on appeal that the AJ “[f]ound that S2 made statements that showed her animosity toward [Complainant’s] disability and that this animosity motivated the Agency’s mistreatment of [Complainant,] including the decision to terminate her.” Moreover, the AJ found that the specific reasons provided by the Agency for Complainant’s termination, i.e., (a) lack of veracity and integrity, (b) inappropriate solicitation of sensitive information, (c) unreported contacts with her former colleagues, (d) alleged unauthorized contact with D1, (f) consistent lack of adherence to Agency administrative requirements, (e) questionable management of her expenses, and (g) the results of a psychological review, were not supported by evidence but instead were pretext to mask retaliation for Complainant’s protected EEO activity. For each reason, the AJ pointed to specific evidentiary reasons for her findings that are set forth above. Finally, to the extent that the Agency is contending on appeal that Complainant’s termination was a security clearance determination, we agree with Complainant that the Agency is attempting to raise this argument for the first time on appeal and that it was not brought before the AJ. The Commission has long held that arguments raised for the first time on appeal will not be addressed. 2019005657 10 Issue 3 (a): The Agency maintains that Complainant contacted the Agency’s EEO office on January 28, 2010 and alleged a non-specific pattern of discriminatory acts which culminated in her termination. Thus, the Agency argues that the bulk of Complainant allegations - such as the Agency’s failure to process her for an insurance policy in January or March 2009 are untimely discrete acts and should only be considered as background evidence, not independent grounds for relief. We do not find persuasive evidence that the AJ erred here. According to the AJ, she found that an award of “$100,000 in non-pecuniary damages was appropriate to compensate Complainant for the emotional distress, loss of sleep, loss of self-esteem and loss to her reputation during her one-year of employment and the subsequent emotional distress she testified she experienced post termination.” We find no indication that the AJ’s award arises principally from the period of January or March 2009,6 nor do we find that the bulk of Complainant’s disparate treatment or hostile work environment claims were discrete acts that should have triggered her awareness to seek EEO counseling.7 Finally, we note that the AJ found Complainant’s testimony that she contacted the EEO office in April 2009, but was discouraged from proceeding to be credible. Therefore, we find it reasonable for the AJ to not have discounted aspects of Complainant’s claim as untimely or when crafting her remedy. (b): We do not find that the AJ erred by not analyzing this matter as a mixed-motive case. In addition to the fact that the Agency is raising this issue for the first time on appeal, the AJ specifically found that the 7 reasons offered by the Agency for Complainant’s termination were not supported by the evidence and were instead pretext to mask retaliation against Complainant. Therefore, because there is no basis for finding that the Agency had legitimate reasons for Complainant’s termination, we do not find that the application of the mixed motive analysis is appropriate here. (c): The Agency argues that the AJ erred by awarding Complainant $45,000 for the language bonuses that she did not receive. The Agency noted documentary evidence indicating that S2 sought to obtain a waiver to allow Complainant to complete the foreign language testing after her surgery and requested that she receive the applicable hiring bonus if she tested successfully. The Agency argues that the AJ failed to address or consider this contradictory evidence. We do not find an error on the AJ’s part. Regarding this issue, the AJ found that S2 “[w]as the central perpetrator of the discriminatory treatment against Complainant.” The AJ could reasonably find that S2’s later efforts do not change the fact that she caused Complainant to miss the deadline in the first place. 6 The AJ noted the testimony of Complainant’s father regarding her distress over being investigated about possible espionage concerns, which took place in January 2010, and the effect on her reputation. C1, Complainant’s coworker, testified that he observed her crying at work “a number of times,” because of Section 1’s actions. 7 For example, Complainant stated that S2 made inappropriate comments about her cancer such as asking whether her fiancé knew she was disfigured and that he might cheat on her. TR at 92. 2019005657 11 (d): Regarding the Agency’s argument that the AJ erred by awarding Complainant out-of-pocket medical expenses incurred from 2009 through 2021, two years after the entry of judgment in the case, we note the AJ’s specific finding that the Agency’s inaction motivated by discrimination was the reason Complainant did not receive the same insurance coverage as her cadre members, and that because the Agency’s termination was discriminatory and caused the lapse of insurance after her termination, the AJ found the Agency liable for Complainant’s out- of-pocket medical expenses post termination as well. We find, as set forth above, that there is substantial evidence in the record to support these determinations. (e): The Agency argued that the AJ erred in ordering that Complainant be provided $100,000.00 in additional pay. The AJ did not provide a specific rationale for this award. After reviewing the hearing transcript, specifically, the testimony of S4, we find that the record does not support this payment; therefore, the Agency will not be required to pay this sum.8 Complainant’s Cross Appeal (a). According to Complainant, the AJ’s determination that her base pay was $83,236 per year was in error due to an incorrect Agency exhibit, and that the actual amount was $89,324.40. Notwithstanding Complainant’s assertion, we find that Complainant is entitled to the actual amount of back pay that she would have received absent the discrimination; therefore, the Order below will direct the Agency to pay that amount. If there is a dispute regarding the exact amount of back pay the parties will follow the procedures set forth below. (b). With respect to Complainant’s contention that the AJ erred by not finding that she would have been deployed outside the United States and therefore limiting her to locality pay for the Washington Metropolitan area, and not providing for overseas, hazard, and annual language incentive payments, we do not find that the AJ erred. Because there was no evidence that Complainant would have been assigned to a specific location following her training, the AJ found that her locality pay should be based on the Washington Metropolitan area. We find that this was a reasonable conclusion and supported by the record. We also find no error in the AJ’s determination not to award hazardous duty pay or annual language incentives payments because both would require speculation that Complainant would have engaged in continuous language testing into the future or would have been assigned to a hazardous overseas location. (c). With respect to Complainant’s contention that the AJ erred by finding that that she needed to submit receipts in order to establish her entitlement to a per diem for the years following her termination in 2010, and for February 2010. Because Complainant submitted no documentation in support of specific expenses following her termination or for the month of February 2010, the AJ disallowed this claim. We find no error. 8 Like other issues, Complainant may petition the Commission for enforcement or clarification of any matters in dispute. 2019005657 12 CONCLUSION Based on a review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency’s final order and AFFIRM the AJ’s finding of discrimination and harassment based on disability, sex, reprisal. We REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision is issued: 1. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due the Complainant, retroactive to January 1, 2010, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision was issued.9 The Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.” 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 supporting documentation of the Agency’s calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. 2. The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. Complainant has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, Complainant shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which Complainant shall then be compensated. 3. The Agency shall pay two years of front pay at the rate set forth in the back-pay award above including any subsequent increases in pay and promotions she would have received absent discrimination, from the date judgment is entered. 9 As provided by the AJ, this amount shall be based on a locality pay adjustment for the Washington Metropolitan Area and shall include the $45,000 language bonus Complainant would have been paid. 2019005657 13 4. The Agency shall provide at least eight (8) hours of training to S1, S2, and S3 to ensure that like violations of Title VII and the Rehabilitation Act shall not recur. The training shall address the current state of the law on employment discrimination, particularly, discrimination based on disability, sex and reprisal and the goals behind requiring equal employment opportunity. 5. The Agency shall consider taking appropriate disciplinary action against S1, S2, and S3. 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 the responsible management officials have left the Agency’s employ, the Agency shall furnish documentation of their departure dates. 6. The Agency shall pay Complainant $100,000.00 in non-pecuniary damages. 7. The Agency shall pay Complainant past pecuniary expenses for rental expenses (not already paid by per diem) of $34,290.00, according to the Agency’s written policy, lost air fare of $l,034.43; storage fees of $2,908.00; moving expenses of $2,918.44; transportation for medical treatment of $16,307.54. 8. The Agency shall pay Complainant’s out-of-pocket medical expenses for 2009 ($29,314.75), 2010 - 201l ($109,938.03); 2012 - ($53,792.00); 2013 - ($30,155.00), 2014 - ($68,197,00); 2015 - ($ll0,974.00); 2016 - ($96,123.00); 2017 - ($175,335.00); 2018 - ($41,960.00). Egg storage fee - $2,000.00; Prescription expenses ($59,584.00), Physician Services $6,954.09. Dental Expenses in 2015 - $19,330.00. COBRA payments - $12,205.00 (2010-2011). Private insurance premiums - $61,406.00. 9. The Agency shall pay future out-of-pocket medical expenses not covered by insurance if supported by adequate verification for two years following entry of judgment. 10. The Agency shall expunge its written records of any and all references to Agency actions found to be discriminatory by the AJ.10 11. The Agency shall pay Complainant’s Attorney’s fees and costs as follows: (Law Firm #1, Attorney #1) $323,030.90 - attorneys’ fees, $13,613.47 - costs; (Law Firm #2) - $187,637.65 attorneys’ fees, $l,031,90 - costs; Complainant’s personal expenses/costs $22,754.39. 10 In this regard, we note that the AJ ordered the Agency to cooperate with Complainant to improve her resume, and to “assist her by setting the parameters for future employment opportunities considering the Agency’s security concerns.” 2019005657 14 POSTING ORDER (G0617) The Agency is ordered to post at its Headquarters 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). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2019005657 15 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2019005657 16 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 August 12, 2021 Date