[Redacted], Erick K., 1 Complainant,v.Katy Kale, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Aug 10, 2021

Appeal No. 2020003627 (E.E.O.C. Aug. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erick K.,1 Complainant, v. Katy Kale, Acting Administrator, General Services Administration, Agency. Appeal No. 2020003627 Hearing No. 530-2018-00022X Agency No. GSA-16-R3-Q-0130 DECISION Following its April 29, 2020, 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 a portion 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. For the reasons that follow, we MODIFY the Agency’s final order. BACKGROUND During the period at issue, Complainant worked as a Customer Service Director, at the Agency’s Customer and Stakeholder Engagement Division, Region 3, Customer Relationship Management and Outreach Branch (CRMOB) located in Philadelphia, Pennsylvania. On December 16, 2016, he filed a complaint alleging discrimination as follows: 1. The Agency discriminated against him because of age (over 40), sex (male), and in reprisal for prior EEO activity when, on June 14, 2016, he learned that he was not selected for the 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. 2020003627 2 position of Customer Service Representative (GS-14), under vacancy announcement number 1603058KMBMP located in Frankfurt, Germany. 2. He was subjected to a hostile work environment in reprisal for prior EEO activity when: a. on June 21, 2016, he was “verbally accosted” and accused of insubordination after he attended the One Acquisition Solution for Integrated Services (OASIS) conference; and b. on September 20, 2016, he was suspended for one day. 3. He was subjected to a hostile work environment because of sex and reprisal when: a. on October 14, 2016, he was denied permission to attend an industry day event. b. on November 4, 2016, his supervisor questioned his request for compensatory time. c. on or about November 5, 2016, his supervisor questioned his travel voucher. d. on November 7, 2016, he received an annual performance appraisal rating of “4” for critical element number “1.” e. on December 12, 2016, he was required to attend a teleconference. f. by email message dated December 19, 2016, his supervisor requested information regarding items he reported in the Weekly Activity Report. g. on January 17, 2017, he was ordered to work overtime. h. on March 24, 2017, his request to change the Deciding Official on a proposal to suspend was denied. i. on April 20, 2017, he was suspended from duty without pay for three days, effective April 24, 2017, through and including April 26, 2017. After an investigation the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. A hearing was held over a four-day period: October 28 - 29, 2019; November 13, 2019; and, January 9, 2020. Subsequently, the AJ issued a decision finding discrimination regarding claim 2 and finding no discrimination for the remainder of the complaint. The record indicates that, by emails on April 22 and May 12, 2016, Complainant informed his supervisor, S1, that he was interested in attending the OASIS conference in Colorado Springs, Colorado in June. Complainant also indicated that if TDY was not available, he would take leave the week of the conference. On May 23, 2016, S1 notified Complainant that C1, another employee, had also expressed interest in attending the conference, but she would discuss the issue with S2, the Director. S1 also indicated that Complainant had already traveled a lot that fiscal year, and while it was not a definitive “no, it may end up being a no.” 2020003627 3 After several follow-up email inquiries by Complainant regarding TDY for the conference, S2 notified Complainant that she would represent the Agency at the conference and C1 would be her guest. S2 further noted that the Agency had supported Complainant on prior travel, and he had attended previous OASIS conferences and had utilized the majority of the department’s travel budget for that year. The Agency, according to S2, wanted to give other employees opportunities to participate in these types of events. Thereafter, Complainant took annual leave, and attended the OASIS conference. He paid for his own travel and accommodations. However, he did not tell S2 that he would be attending the conference while on annual leave. Upon learning that Complainant was at the conference, S2 confirmed his attendance at the registration desk. S2 testified that she was surprised by Complainant’s presence because the conference was a private event and she did not authorize Complainant to attend on TDY, and it was unexpected that he would attend because he was previously notified that she would represent the Agency. S2 also felt that Complainant’s attendance at the conference was not a proper use of annual leave. S2 maintained that she viewed Complainant’s behavior as insubordinate because, as her subordinate, he defied her directive that she would represent the Agency, and that he, surreptitiously, avoided having his name placed on the Agency’s event tracker which identified Agency employees attending the event. Complainant testified that around lunchtime on the first day of the conference, S2 approached him in an accusatory tone and asked him, “what are you doing here” and then stated that he was insubordinate for being at the conference. Later, S2 sent Complainant an email directing him to leave the conference because he was not there in an official government capacity. S2 stated that she did not see Complainant again after the first day. The next day, June 22, 2016, Complainant sought EEO counseling alleging S2 subjected him to harassment when she accused him of insubordination. Approximately six weeks later, on August 1, 2016, S2 issued Complainant an Advanced Notice of Suspension with a proposal to suspend him from duty and pay for three days for inappropriate conduct. In the suspension notice, S2 maintained that Complainant’s behavior was unacceptable because prior to the conference, she specifically notified him that she would be representing the Agency at the conference. S2 also alleged that, without her knowledge or authorization, Complainant requested Agency staff to finalize his registration to the conference and requested that Agency staff remove his name from the registration list. S2 stated that his behavior was misleading and deceptive. Finally, S2 stated that while at the conference, Complainant ignored her request to discuss his unapproved presence at the conference. A1, the OASIS Program Manager, stated that the conference was not an “invitation-only” government sponsored event, contrary to S2’s assertions in the suspension notice. A1 stated that the conference was open to “any government employee,” and to everyone at the Agency that was involved in the program. According to A1, formal invitations were only sent to guest speakers. Although Complainant attended the conference and was on the registration list, he was not part of the panel; nor did he provide a presentation. 2020003627 4 A1 also noted that the OASIS conference was open to prime contractors and all government employees regardless of whether the government employee was on work or leave status. On August 16, 2016, Complainant submitted a rebuttal to the suspension notice to D1, Deputy Regional Commissioner. Thereafter, on September 20, 2016, D1 reduced Complainant’s three- day suspension to a one-day Saturday suspension. The Saturday suspension was on a nonduty day and therefore Complainant did not lose pay; however, a form SF-50 of the suspension was still placed in Complainant’s personnel file. The AJ found that Complainant established a prima facie case of reprisal when, on August 1, 2016, S2 issued an Advanced Notice of Suspension that was subsequently reduced to a one-day, Saturday nonduty suspension. According to the AJ, the record showed that: (1) on or about June 16, 2016, Complainant initiated EEO contact alleging he was discriminated against when he was not selected for the Frankfurt, Germany position, and on June 22, 2016, initiated EEO counseling for allegations of insubordination by S2; (2) S2 stated that she was aware of the prior EEO activity; (3) Complainant was subjected to adverse treatment when the Agency issued him an Advanced Notice of Suspension on August 1, 2016; and (4) the less than two month temporal proximity between Complainant’s prior EEO activity and adverse action established the requisite nexus. The AJ noted the Agency’s legitimate, nondiscriminatory explanations for the August 1, 2016, suspension notice, i.e., (1) S2 viewed Complainant’s actions as insubordinate because she notified him that she would appear on behalf of the Agency; (2) S2 believed Complainant exhibited deceptive and misleading behavior; and (3) Complainant ignored her request to discuss his unapproved presence at the conference. The AJ, however, found that the Agency’s actions were a pretext for discrimination. In reaching this determination, the AJ noted that the OASIS conference was not an invitation-only government sponsored event. A1 credibly testified that the conference was open to any government employee, and to everyone at the Agency who was involved in the program, including Complainant. The AJ also noted that on the first day of the conference, S2 sent Complainant an email directing him to leave the conference because he was not there in an official government capacity, but noted in the suspension that Complainant was insubordinate because he ignored her request to meet and discuss his unapproved presence at the conference. The AJ noted that when S2 learned of Complainant’s presence at the conference, she immediately contacted HR for guidance on how to initiate Complainant’s removal from the conference, but she waited six weeks to issue the notice of suspension, after Complainant’s June 22, 2016, EEO contact. The AJ found S2’s delay in issuing the suspension was suspect especially given her impulsive response at the conference. Finally, the AJ found that Complainant did not improperly use leave as alleged by the Agency. Annual leave, according to S2, was provided and used for two general purposes: (a) to allow every employee an annual vacation period of extended leave for rest and recreation, and (b) to provide periods of time off for personal and emergency purposes. 2020003627 5 Because Complainant testified that he attended the conference as a “personal investment in his professional career,” the AJ found he used leave for personal reasons as permitted in the Agency’s guidance.2 The AJ ordered the following relief: 1. Remove any and all documentation pertaining to the August 1, 2016, Advanced Notice of Suspension and the subsequent one-day nonduty Saturday suspension from Complainant’s personnel file, including electronic personnel files. 2. Provide training to all managers and supervisors responsible for issuing reprimands and/or discipline, particularly notices of suspensions, to employees at the CRMOB in Philadelphia, Pennsylvania, specifically addressing the appropriateness and timeliness of any reprimands and/or disciplinary actions no later than 60 calendar days after the date this decision becomes final. 3. Post copies of a notice, after being signed by the Agency’s duly authorized representative, for 365 consecutive days, in conspicuous places at the CRMOB in Philadelphia, Pennsylvania. 4. Pay nonpecuniary, compensatory damages ($10,000.00) to Complainant. The AJ’s compensatory damages award was based on her consideration of the testimony of Complainant’s wife that after the issuance of the August 2016, suspension, Complainant appeared withdrawn and experienced high levels of anxiety. She further testified that Complainant exhibited little emotion and signs of depression and was constantly under stress. She also noted Complainant’s testimony that, in or about August 2016, he began seeing a certified psychologist, for feelings of stress, mental anguish, and pain and suffering. Complainant saw the psychologist from August 2016 through June 2018, with a frequency of once every three to four weeks, and at times once every two weeks. On April 29, 2020, the Agency issued its final order accepting the AJ’s findings and conclusions regarding claims 1 and 3 but rejecting her finding of discrimination regarding claim 2. The Agency also objected to the relief granted by the AJ. On May 27, 2020, the Agency filed an untimely statement in support of its appeal. On May 28, 2020, the Agency also filed a motion seeking to waive the 20-day time limitation period for filing its statement. Complainant did not file an appeal from the AJ’s decision. Complainant requests that the AJ’s finding of discrimination be upheld. Complainant, we note, contacted the EEOC prior to the expiration of the time period for filing his brief opposing the Agency’s appeal and requested an extension, which was granted. 2 The AJ did note that Complainant’s behavior lacked transparency, and that out of professional courtesy, he should have notified management that he was going to attend the OASIS conference. 2020003627 6 ANALYSIS AND FINDINGS We find that the Agency has not provided an adequate justification for extending the 20-day time limitation period for submitting a statement in support of its appeal. We note that there is no explanation for why the Agency simply did not request an extension prior to the 20-day time limitation period expiring. Accordingly, we find that the Agency’s brief was untimely filed. Even if we consider the brief as timely filed, we find that it does not change the result in this decision. We note that neither party is challenging the AJ’s finding of no discrimination regarding claims 1 and 3; therefore, we AFFIRM that determination. 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. After a review of the record in its entirety, we REVERSE the portion of the Agency’s final order finding no discrimination, because the AJ’s ultimate finding, that unlawful employment discrimination based on reprisal for claim 2 was proven by a preponderance of the evidence, is supported by substantial evidence in the record. We also find that substantial evidence in the record supports the AJ’s compensatory damages award of $10,000.00, and that such an award is neither monstrously excessive nor the product of passion or prejudice and is consistent with prior EEOC precedent. See Ralph B. v. Dep’t. of Homeland Security, EEOC Appeal No. 0120161451 (Apr. 25, 2018) (complainant awarded $10,000 as a result of a reprisal claim where complainant suffered stress, anxiety, depression stomach pains, and insomnia after discrimination). Complainant does not specifically contest the $10,000 award. We do find, however, that the AJ improperly ordered the Agency to conduct EEO training for all its managers and supervisors responsible for issuing reprimands and/or discipline, particularly notices of suspensions, at the CRMOB in Philadelphia, Pennsylvania. In the present case, we find that the AJ’s training remedy is overly broad. The AJ did not specify a reason for issuing such a broad training order. The record reveals that S2 was the only responsible management official involved in the AJ’s retaliatory finding. Moreover, we find there is no evidence in this case of a facility-wide culture of discrimination. See Joey B. v. Dep’t. of Veterans Affairs, 0720160023 (December 21, 2016). Therefore, we will modify the AJ’s Order so that only S2 will be provided training. 2020003627 7 We also find no justification for requiring the CRMOB to post a notice regarding the finding of discrimination for 365 consecutive days. The Commission normally requires that notices be posted at the affected facility for 60 days. Although, there may be some justification for ordering postings for a longer period, the AJ did not explain her reasons for ordering the longer period. Therefore, we will modify the AJ’s Order so that the Notice need only be posted at the CRMOB for 60 days. We find the other relief ordered by the AJ to be appropriate and we also add to the Order the requirement that the Agency consider disciplining S2. CONCLUSION The Agency’s decision is MODIFIED. The Agency’s decision finding no discrimination for claims 1 and 3 is AFFIRMED. The Agency’s decision finding no discrimination for claim 2 is REVERSED and the matter is REMANDED to the Agency for compliance with the Order herein. ORDER The Agency shall take the following actions: 1. Within 60 days of the date this decision is issued, the Agency shall pay Complainant $10,000 in nonpecuniary, compensatory damages. 2. Within 60 days of the date this decision is issued, the Agency shall remove any and all documentation pertaining to the August 1, 2016, Advanced Notice of Suspension and subsequent one-day nonduty Saturday suspension from Complainant’s personnel file, including all electronic personnel files. 3. Within 90 days of the date this decision is issued, the Agency shall provide eight hours of in person or interactive training to S2 regarding her responsibilities under Title VII with an emphasis on avoiding retaliation against employees who have engaged in protected EEO activity. 4. Within 60 days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against S2. The Commission does not consider training to be a 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 S2 has left the Agency’s employment, then the Agency shall furnish documentation of her departure date(s). POSTING ORDER (G0617) The Agency is ordered to post at its Customer and Stakeholder Engagement Division, Region 3, Customer Relationship Management and Outreach Branch located in Philadelphia, Pennsylvania facility copies of the attached notice. 2020003627 8 Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. §1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. 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 (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. 2020003627 9 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. 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). 2020003627 10 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 10, 2021 Date