[Redacted], Erick K., 1 Complainant,v.Robin Carnahan, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Dec 16, 2021

Appeal No. 2020003627 (E.E.O.C. Dec. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erick K.,1 Complainant, v. Robin Carnahan, Administrator, General Services Administration, Agency. Request No. 2021004655 Appeal No. 2020003627 Hearing No. 5300-2018-00022X Agency No. GSA-16-R3-Q-0130 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021004655 (Aug. 10, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the following reasons, we DENY the Agency’s request. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Service Representative (Customer Service Director), GS-0301-13, at the Agency’s Customer and Stakeholder Engagement Division, Region 3, Customer Relationship Management and Outreach Branch (CRMOB), in Philadelphia, Pennsylvania. 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. 2021004655 2 On June 21, 2016, Complainant took annual leave to attend the One Acquisition Solution for Integrated Services (OASIS) conference at his own expense. Complainant attended the conference against the wishes of his Director (i.e., his second level supervisor), who expressly told Complainant that she wanted to represent the Agency at the conference. Upon seeing Complainant, the Director approached him and accusatorily inquired about the nature of his presence at the conference. The following day, Complainant sought EEO counseling alleging that the Director subjected him to harassment when she accused him of insubordination. Approximately six weeks later, on August 1, 2016, the Director issued Complainant an Advanced Notice of Suspension proposing to suspend him from duty and pay for three days for inappropriate conduct. The Deputy Regional Commissioner ultimately reduced the penalty on September 20, 2016, and allowed Complainant to serve a one-day suspension on Saturday, a nonduty day. See Erick K. v. Gen. Servs. Admin., EEOC 2020003627 (Aug. 10, 2021) at 2-4. On December 16, 2016, Complainant filed a formal EEO complaint alleging, in relevant part, that the Agency discriminated against him on the bases of age (over 40), sex (male), and reprisal for prior protected EEO activity when: 2(a) on June 21, 2016, he was “verbally accosted” and accused of insubordination after he attended the OASIS conference; and 2(b) on September 20, 2016, he was suspended for one day.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Following discovery, the AJ assigned to the matter held a four-day hearing into the matter. The AJ subsequently issued a decision finding, in relevant part, that Complainant established a prima facie case of reprisal when, on August 1, 2016, the Director issued an Advanced Notice of Suspension that was subsequently reduced on September 20, 2016, to a 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 a position, and on June 22, 2016, initiated EEO counseling alleging that the Director accused him of insubordination; (2) the Director stated that she was aware of Complainant’s 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) less than two months elapsed between Complainant’s prior EEO activity and the adverse action. The AJ considered the Director’s explanation that she proposed to suspend Complainant because Complainant was, among other things, insubordinate. 2 We note that Complainant filed two additional claims of discrimination. The appellate decision affirmed the AJ’s finding of no discrimination regarding these claims because neither party raised these issues on appeal. As neither party has requested reconsideration of our determination, we will not address these claims in the instant decision. 2021004655 3 However, after hearing the testimonies of all relevant witnesses, the AJ concluded that the Director’s articulated reasons were pretext for reprisal for engaging in protected EEO activity. To remedy the finding of discrimination, the AJ ordered the Agency to take the following remedial actions: 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 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; and 4. Pay nonpecuniary compensatory damages ($10,000.00) to Complainant. Notably, the AJ’s award of nonpecuniary compensatory damages was based on her consideration of the testimony of Complainant’s wife who testified that after the issuance of the August 2016, suspension, Complainant appeared withdrawn and experienced high levels of anxiety. Complainant’s wife further testified that Complainant exhibited signs of depression, little emotion, and was constantly under stress. The AJ also noted Complainant’s testimony that, from August 2016 to June 2018, he began seeing a therapist once every three to four weeks or so, for feelings of stress, mental anguish, and pain and suffering. The Agency subsequently issued a final order, which, in relevant part, rejected both the AJ’s finding of discrimination on claim 2 and the remedial relief ordered by the AJ. In accordance with the Commission’s regulations, the Agency, in issuing the final order, simultaneously filed an appeal with the Commission. The Agency’s appeal was docketed as Appeal No. 2020003627. In Appeal No. 2020003627 (Aug. 10, 2021), our appellate decision succinctly reversed 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.” While the appellate decision found the AJ’s award of $10,000.00 in nonpecuniary compensatory damages to be consistent with Commission precedent in Ralph B. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120161451 (Apr. 25, 2018), the appellate decision concluded that the AJ erred in ordering the Agency to train all of its managers and supervisors and post notice of the discrimination for 365 days. Specifically, the appellate decision found that the AJ should have only ordered the Agency to provide training to the Director, as the Director was the sole management official responsible for discriminating against Complainant. The appellate decision further found that the AJ provided no justification for ordering the Agency to post notice of the discrimination for 365 days, well in excess of the typical 60 day posting period. 2021004655 4 As such, the appellate decision modified the ordered remedial reflect to reflect these concerns. The Agency then filed the instant request for reconsideration on August 20, 2021. In its request for reconsideration, the Agency argues that the appellate decision erred in finding substantial evidence to support the AJ’s decision. Specifically, the Agency asserts that the appellate decision, in reversing the Agency’s final order, relied on the AJ’s erroneous finding that the adverse treatment occurred on August 1, 2016, the dated when the proposal was issued. To the contrary, the Agency maintains that the adverse action actually occurred on September 20, 2016, when the Deputy Regional Commissioner issued Complainant a final decision on the proposed suspension. The Agency maintains that the period of temporal proximity between June 16, 2016 to September 20, 2016, is insufficient to establish a nexus. Furthermore, the Agency asserts that Complainant failed to present any evidence of pretext. As such, the Agency vehemently maintains that the appellate decision should not have reversed its final order rejecting the AJ’s finding of discrimination. Additionally, the Agency asserts that the AJ’s award of $10,000 in nonpecuniary compensatory damages is excessive considering that Complainant’s therapist did not testify as previously agreed. Furthermore, the Agency points out that while Complainant’s wife initially testified that Complainant lost money as a result of the suspension, on cross-examination, Complainant’s wife admitted that Complainant did not lose any money. Given these factors, the Agency strenuously maintains that Complainant is only entitled to a nuisance value of no more than $500.00 in nonpecuniary compensatory damages.3 After reviewing the appellate decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. In denying the Agency’s request, we note that the Agency presented the same contentions in support of its appeal of the AJ’s decision. Though our appellate decision found the Agency’s brief to be untimely filed, we nevertheless determined that “[e]ven if we consider the brief as timely filed, we find that it does not change the result in this decision.” See Erick K. v. Gen. Servs. Admin., EEOC Appeal No. 2020003627 (Aug. 10, 2021). Having reviewed the record, we find no factual basis to second-guess the appellate decision. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. 3 On September 11 and 12, 2021, Complainant filed responses to the Agency’s August 20, 2021, request for reconsideration. Under our regulations, a party has 20 calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See Devona V. v. Dep’t of the Army, EEOC Appeal No. 0120160776 (June 29, 2017) citing Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110). As Complainant failed to file his responses within 20 days of the date when the Agency filed its request for reconsideration, we will not consider Complainant’s responses. 2021004655 5 Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Based on the foregoing, we conclude that the Agency cannot meet this standard with regard to liability. As for our affirmation of the AJ’s award of $10,000.00 in nonpecuniary compensatory damages, we note that the appellate decision affirmed the AJ’s award based on the AJ’s assessment of both Complainant’s testimony and the testimony of his wife. While we are mindful of the Agency’s contentions regarding Complainant’s wife and therapist, we note that the Commission has long held that a complainant’s testimony alone can suffice to establish an entitlement to nonpecuniary compensatory damages. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep’t of the Navy, EEOC. Appeal No. 01922369 (Jan. 5, 1993)); see also Jeffry R. v. U.S. Postal Serv., EEOC Appeal No.2020002824 (Sept. 13, 2021); and Franklin v. U.S. Postal Serv., EEOC Appeal Nos. 07A00025 and 01A03882 (Jan. 19, 2001). Given that the AJ, in assessing the award, relied, in part on Complainant’s testimony, we cannot say that the appellate decision was clearly erroneous in awarding Complainant $10,000.00 in nonpecuniary compensatory damages. CONCLUSION After reviewing the appellate decision and the entire record, we find that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is our decision to DENY the request. The decision in EEOC Appeal No. 2020003627 remains in effect. There is no further right of administrative appeal. The Agency shall comply with the Order as set forth below. 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 the Director regarding her responsibilities under Title VII with an emphasis on avoiding retaliation against employees who have engaged in protected EEO activity; and 4. Within 60 days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the Director. The Commission does not 2021004655 6 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 the Director 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, 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 thirty (30) calendar days of the date this decision was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within ten (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. 2021004655 7 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 2021004655 8 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 December 16, 2021 Date