Terrie M.,1 Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jun 16, 2016

0120152627 (E.E.O.C. Jun. 16, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Terrie M.,1
Complainant,

v.

Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120152627

Hearing No. 540-2012-00061X

Agency No. 6W0B09013

DECISION

On July 16, 2015, Complainant filed an appeal from the Agency’s June 15, 2015, final order
concerning her equal employment opportunity (EEO) complaint alleging employment
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 the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et
seq. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as the Head Coach for
the women's volleyball team at the Agency's U.S. Air Force Academy in Colorado Springs,
Colorado. On June 16, 2009, Complainant initiated EEO Counselor contact. Informal efforts
to resolve her concerns were unsuccessful.

On August 6, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), color (black),
and in reprisal for prior protected EEO activity when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. From May 2006 to May 2009, the Agency subjected her to ongoing harassment
when:
a. from May 2006 forward, the Director of Athletics (DA) and Vice Director
of Athletics (VDA) provided Complainant and her staff with substandard
office facilities;
b. in May 2008, Complainant rejected the VDA's requests to be her “sugar
daddy;”
c. in August 2008, the Agency forced Complainant to schedule her volleyball
practices at 5:00 a.m., but allowed men's and women's basketball teams to
practice at later times; and
d. in April 2009, the VDA looked Complainant up and down in a sexually
suggestive manner.

Additionally, Complainant alleges that the Agency subjected her to discrimination on the basis
of reprisal when:

2. in December 2008, Complainant learned that DA did not plan to renew her
contract. Complainant asserted that she had coached at the Academy for 15 years,
and believed that the decision not to renew her contract was the result of retaliation
by the VDA for rejecting his advances.

Moreover, Complainant alleged the Agency discriminated against her on the bases of sex,
race, color, and in reprisal for prior protected EEO activity when:

3. on May 11, 2009, Complainant learned that her share of the revenue from the
women's volleyball sports camp would be 38%, while male sports coaches received
revenue shares between 50% and 65%.

The Agency issued a final decision dismissing Complainant’s complaint on procedural
grounds. Complainant appealed the Agency’s dismissal to the Commission. In EEOC Appeal
No. 0120100131 (June 21, 2011), the Commission affirmed the dismissal of claims (1) and
(2). The Commission reversed the dismissal of claim (3) and remanded claim (3) for further
processing.

At the conclusion of the investigation of claim (3), 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 (AJ). Complainant requested a
hearing and AJ1 held a hearing on July 24, 2013. The case was subsequently reassigned to
AJ2 who issued a decision on April 27, 2015.

In her decision, AJ2 noted that Complainant was covered by a negotiated contract with the Air
Force Academy Athletic Association during the academic year. The decision noted that as part
of her employment with the Agency, Complainant signed a separate contract to conduct
summer sports camps at the U.S. Air Force Academy. The decision noted the parties
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stipulated that Complainant's compensation for the 2003 Sports Camp was $3,000 plus 35% of
net profits; for the 2004 Sports Camp it was 35% of net profits; for the 2005 Sports Camp it
was 40% of net profits; and for Sports Camps from 2006 until 2009 it was 38% of net profits.
AJ2 also stated that the parties agreed that the proper comparatives were the coaches for
Premier Sports, which are hockey, football, volleyball, as well as basketball - men's and
women's.

AJ2 noted that in 2006, Complainant requested a second assistant coach and was told she had
to raise money for that position by running a camp. AJ2 noted that Complainant ran an
additional volleyball camp, the goal of which was to pay for the second assistant coach. AJ2
found that Complainant never received a percentage of the profits generated by that camp.
AJ2 noted that all other sports were fully staffed without having to run a camp to raise the
money to cover the salary of an assistant coach.

AJ2 stated that in May 2009, when Complainant was having lunch with the men's soccer
coach, she realized she was being paid less than male coaches for camps. AJ2 noted that
men's basketball was getting 50 percent and men's football was getting over 50 percent.

AJ2 found the Agency violated Title VII and the Equal Pay Act with respect to Complainant's
summer sports camp compensation for the years 2007-2009. AJ2 determined that the correct
percentage to apply to the net profits from summer sports camps during the aforementioned
years was 56%. Thus, AJ2 concluded Complainant should earn 38% plus 18%, or 56% total.

AJ2 also found it discriminatory under both Title VII and the Equal Pay Act that Complainant
received no compensation for the team camp she sponsored, the profits of which were to be
used to pay for a second assistant. AJ2 noted the evidence reflected that all other Premier
Sports were staffed at the maximum coaches as allowed by the NCAA, and also that no male
coach was required to hold a sports camp to fund an assistant coach’s position. Thus, AJ2
determined compensation to Complainant for that camp should be at 56% of revenues.

AJ2 noted that Complainant requested $25,000 in pecuniary damages for money she needed for
living expenses after the Agency declined to renew her contract. AJ2 determined that since
that claim was not part of the case, and AJ2 did not see it as part of the discrimination, she
declined to award those damages.

AJ2 found the Agency failed to show that it acted in good faith or that it had reasonable
grounds for believing the disparity was not a violation of the EPA. Thus, AJ2 awarded
liquidated damages. AJ2 also noted that when Complainant raised her concerns about sex
discrimination in pay, management took no action to investigate or even consider her issues.
Thus, the AJ determined Complainant was entitled to three years back pay differential for the
sports camps.

AJ2 ordered the Agency to: (1) pay Complainant the difference in income from sports camps
between 38% and 56% for the years 2007, 2008, and 2009; and (2) to pay Complainant 56%
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of the proceeds of the camps for which she was not compensated, which were run for the
purpose of adding an assistant coach for volleyball. The Agency was also ordered to pay
Complainant an additional equal amount as liquidated damages for its violation of the EPA as
identified in (1) and (2). Finally, the Agency was ordered to pay Complainant's counsel
$94,218.64 in attorney’s fees and pay Complainant $1,402.98 in costs.

AJ2 found no discrimination for all other bases for claim (3).

The Agency subsequently issued a final order on June 15, 2015. The Agency fully
implemented the AJ’s decision.

On appeal, Complainant acknowledges the Agency has paid her and her attorney pursuant to
the AJ’s decision and she states she is not challenging that receipt of the monies due her per the
AJ order. Complainant has also not appealed the findings of no discrimination. Complainant,
however, does contend the AJ erred in interpreting the law with respect to the damages
awarded.

Complainant claims on appeal that the AJ should have awarded her relief (including liquidated
damages) for the pay disparity from 2006 through 2008 plus, separate from that amount, the
AJ should have awarded her for the pay disparity in 2009. Complainant notes that while her
complaint was pending, she honored her commitments to the Agency and administered the
2009 summer camps. Complainant states she was paid less than her male counterparts for her
work. Complainant requests she be awarded the camp differential at the rate of 56% for the
years 2006, 2007, and 2008 (plus 56% of the proceeds from the extra camp she ran) and an
equal amount as liquidated damages. In addition, Complainant requests to be awarded the
differential on the camp she held post-complaint in 2009, as compensatory damages under Title
VII, because that relief is not available under the EPA.

In addition, Complainant claims that the AJ should have awarded her compensatory damages
for the Title VII claim, including compensatory damages accruing in 2009. Complainant notes
the AJ found discrimination under Title VII and the EPA; however, the AJ did not award her
any relief under Title VII. Complainant states that the pay disparity for 2009, is properly
recoverable under Title VII. In addition, she states that she is entitled to compensatory
damages accruing due to the loss of that income. Complainant notes that she testified at the
hearing to her actual pecuniary damages due to the 2009 lost camp pay. Specifically,
Complainant states that she explained that when her contract ended in December 2009, she
could have used the camp money to pay her family’s living expenses until she started her new
job. Complainant claims that since she did not have that camp money, she had to dip into her
savings to come up with the $25,000 she needed “to make ends meet between the two jobs.”
Complainant states that while the end of her contract can explain the fact that she had to dip
into her savings, her un-rebutted testimony established the causal connection between her lost
camp pay in 2009, and the savings she had to withdraw. Thus, Complainant argues she is
entitled to an additional $25,000 in compensatory, pecuniary damages on top of the lost camp
revenue.
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In response to Complainant’s appeal, the Agency argues that the AJ properly limited
Complainant’s relief for the pay disparity in 2007, 2008, and 2009. The Agency notes
Complainant’s complaint was filed on August 6, 2009. The Agency states that as the AJ found
the EPA violation was willful, she awarded Complainant three years back pay for the summer
sports camps she ran from 2007 through 2009. The Agency notes on appeal, Complainant is
seeking back pay for any camps occurring in the summer of 2006; however, it argues that any
such camps are beyond the reach of the EPA. The Agency claims Complainant can only
receive back pay for summer camps between August 6, 2006, and August 6, 2009. The
Agency claims Complainant does not direct the Commission’s attention to any evidence in the
record to support her argument that the 2006 summer camp is within this time window. The
Agency notes that although Complainant states she “initiated” the complaint process in June
2009, the record shows she filed the complaint on August 6, 2009.

The Agency also argues that the AJ’s decision to deny Complainant’s request for compensatory
damages is supported by the evidence. The Agency notes that the AJ properly determined the
Agency’s decision to not renew Complainant’s contract was not at issue in the present case.
Further, the Agency states Complainant failed to establish that the harm she alleges, i.e., her
use of savings to cover her living expenses between jobs, was a result of discrimination by the
Agency. The Agency notes Complainant’s assertion that she “could have used the camp
money to pay her family’s living expenses until she started her new job” is speculative, at best.
The Agency states that to recover compensatory damages under Title VII, Complainant must
establish the nature, severity, and extent of her harm. The Agency claims Complainant did not
offer any evidence to support her claim for $25,000.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

At the outset, we note that on appeal Complainant does not challenge the definition of the
issues addressed by the AJ and does not appeal the finding of no discrimination. Thus, we
AFFIRM the finding of discrimination under EPA and Title VII (sex) for claim (3).

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An individual may recover under both the EPA and Title VII for the same period of time as
long as the same individual does not receive duplicative relief for the same wrong. 29 C.F.R.
§ 1620.27(b). Relief is computed to give an individual the “highest benefit” which either
statute would provide. Id. Under Title VII, a complainant may recover back pay for two
years prior to the filing of the complaint. EEOC Compliance “Compensation Discrimination,”
No. 915.003, at 10-VI (Dec. 5, 2000) (citations omitted). Back pay under the EPA dates back
to two years prior to the filing of the complaint. Id. In cases of willful violations, the back
pay period is three years. Id. The EPA also provides for liquidated damages, at an amount
equal to back pay, unless the agency proves that it acted in “good faith” and had reasonable
grounds to believe that its actions did not violate the EPA. Id.

On appeal, Complainant only challenges the relief ordered by the AJ. Because she states she
has received the monies due her per the AJ’s order, we shall not restate that relief in the instant
Order. We note the AJ’s determination that the Agency’s violation of the EPA was willful was
not challenged on appeal and is supported by the record. Upon review, we find the AJ’s
decision properly awarded Complainant back pay retroactive to August 8, 2006 (three years
prior to the date from which the complaint was filed). This included back pay for the 2007,
2008, and 2009 summer camps at the difference in income from sports camps between 38%
and 56%. To the extent Complainant is arguing the AJ did not award relief for the 2009
camps, she is incorrect. With regard to Complainant’s contention that she should be awarded
the camp differential at the rate of 56% for the 2006 summer camp, we find that Complainant
failed to establish that the 2006 summer camp fell within the applicable time frame for relief.
The AJ also ordered the Agency to pay 56% of the proceeds of the camps for which
Complainant was not compensated, which were run for the purpose of adding an assistant
coach for volleyball. We note the Agency did not challenge this provision of relief on appeal.
Further, we find the AJ properly determined the Agency did not establish that it acted in “good
faith” and had reasonable grounds to believe that its actions did not violate the EPA. Thus, we
affirm the award of liquidated damages in an amount equal to the back pay awarded.

Additionally, we note that on appeal Complainant requested $25,000 in pecuniary damages for
using money from her savings “to make ends meet between the two jobs” when her contract
ended in December 2009. Upon review, we find substantial evidence supports the AJ’s
determination that Complainant did not show she was entitled to any pecuniary damages. We
note that on appeal Complainant does not request any additional compensatory damages beyond
the $25,000 in pecuniary damages. The Commission shall add the remedies of EEO training
for the responsible agency officials and the consideration of discipline for the responsible
agency officials. Also, as it is not clear that the posting of the notice of discrimination
requirement has been met, we shall order the Agency to comply with that requirement if they
have not already done so.

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CONCLUSION

Accordingly, the Agency’s finding of discrimination regarding Complainant’s claim of sex-
based pay discrimination under the EPA and Title VII is AFFIRMED. The Agency’s decision
on relief is also AFFIRMED as slightly modified herein.

ORDER

To the extent it has not already done so, the Agency shall take the following actions:

1. Within 180 days of the date this decision becomes final, the Agency shall provide EEO
training to the Agency officials responsible for the alleged discrimination with regard to
the prohibitions against sex discrimination under the Equal Pay Act and Title VII.

2. Within 60 days of the date this decision becomes final, the Agency shall consider taking
disciplinary action against the Agency officials responsible for discriminating against
Complainant. The Agency shall report its decision to the Commission and specify
what, if any, action was taken. If the Agency decides not to take disciplinary action,
then it shall set forth the reasons for its decision not to impose discipline.

The Agency is further directed to submit a report of compliance, as provided in the statement
herein entitled “Implementation of the Commission's Decision.” The report shall include
supporting documentation verifying that the corrective action has been implemented.

POSTING ORDER (G0914)

The Agency is ordered to post at its U.S. Air Force Academy in Colorado Springs, Colorado
copies of the attached notice. Copies of the notice, after being signed by the Agency's duly
authorized representative, shall be posted both in hard copy and electronic format by the
Agency within 30 calendar days of the date this decision becomes final, and shall remain
posted for 60 consecutive days, in conspicuous places, including all places where notices to
employees are customarily posted. The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in the paragraph entitled
"Implementation of the Commission's Decision," within 10 calendar days of the expiration of
the posting period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
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send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
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Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or department head, identifying that
person by his or her full name and official title. Failure to do so may result in the dismissal of
your case in court. “Agency” or “department” means the national organization, and not the
local office, facility or department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

June 16, 2016
Date