0720110029
06-12-2012
Yolanda R. Guess, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Yolanda R. Guess,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0720110029
Hearing No. 520-2009-00182X
Agency No. 2008-0054-R02
DECISION
Following its May 9, 2011, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge (AJ) erred when she found that Complainant proved by a preponderance of evidence that she was discriminated against on the basis of reprisal when she was subjected to a lateral reassignment in retaliation for engaging protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Project Officer (PO), GS-13 at the Agency's Region 2 Office in Edison, New Jersey. She was one of nine POs responsible for the Environmental Service and Assistance Team (ESAT) contract. From 2000 to 2007, the ESAT contract was with Lockheed Martin. In 2007, the contract was rebid to ALION. In addition to Complainant's first-line and second-line supervisors (S1 and S2) who worked at her location, she also worked with a Contract Officer (CO) and Laboratory Analytical Service Center Manager (LAM) who were located at the Agency's headquarters in Washington, D.C. Complainant maintains that, on March 27, 2008, she received a telephone call from the CO where he yelled at her and was rude to her regarding delays in the ALION invoices, he told her to just "rubber stamp" the invoices or he would terminate her employment. She asserts that it is against the law for her to just "rubber stamp" invoices and because she was responsible for the contract she needed to make sure that everything was correct. She maintains that she felt forced to participate in unethical and unprofessional practices that would jeopardize her position. Complainant maintained that the CO would not have talked to her that way if she was a male. She sent CO an email to discuss his behavior toward her. S1 sent Complainant an email telling her that her email to CO was rude and S1 called her a "smart ass." S1 had previously yelled at her and called her an "a-hole" in approximately 2001 or 2002.
Complainant maintains that S1 would not have yelled at a Caucasian woman under his supervision the way he yelled at her. She also indicates that he also favored Caucasian women when it came to performance awards. She maintains that there were many derogatory emails passed between management regarding her processing of the ESAT contract. Complainant indicates that she received several more very abusive phone calls from CO where he accused her of creating her own requirements for the ESAT program. Again, he complained that Complainant was not processing contract invoices in a timely fashion. The CO maintained that Complainant failed to inform ALION what follow-up documentation was needed and when they provided the information, Complainant continued to assert that the provided codes were questionable. While ALION was threatening to sue over timeliness issues, the LAM noted that ALION had not "fully mobilized" in accordance with their mobilization plan, and a "Cure Notice"1 was therefore issued.
Complainant contacted the EEO office on April 9, 2008; thereafter, she maintained that she was required to keep several layers of management apprised on her work. Moreover, she maintains that her work began to be reviewed by two supervisors, she was micromanaged, she was given double the work and she was audited twice. On May 8 or 9, 2008, the LAM went to the Office of the Inspector General (OIG), Complainant believed that this was done so that an investigation could be started on her. The LAM maintained that this visit did not have anything to do with Complainant. However, on May 13, 2008, Complainant was audited by OIG. She believed that this was done to uncover deficiencies in her work. The director of the audit however, provided testimony that Complainant was not singled out as all delinquent contracts were audited and Complainant's selection was simply due to the untimeliness of her contract. The audit uncovered no problems with Complainant's work. A second audit was thereafter conducted on Region 2. The director testified that this audit was conducted because Region 2 was being considered as a model.
Complainant indicates that from 2005 through March 27, 2008, she received performance appraisals of Exceeds Expectations. In October 2008, however she received a lower rating of "Fully Successful." In May 2009, the LAM wrote a letter to Complainant's then supervisor (S1A) indicating that Complainant's performance should improve or Complainant should be replaced. S1A did not share this information with Complainant. Complainant was not put on a performance improvement plan and no meeting was held with Complainant and Human Resources regarding performance concerns. In June 2009, Complainant was reassigned to the position of "Senior Quality Assurance," which, she maintained, was essentially a data entry position. S2 indicated that Complainant was reassigned at the direction of Headquarters. Headquarters provided three reasons for the reassignment. They were: (1) ALION was threatening to sue, (2) Complainant had communication issues, and (3) she had not attended the national 2008 PO conference and meetings in June 2008 and May 2009.
Complainant alleges that she was transferred as a result of reprisal for filing her EEO complaint. She maintains that she went from managing multibillion/multimillion dollar contracts to being a data entry clerk. Complainant contends that she was known as being diligent about her work and a hard worker and this reassignment was devastating to her career and the way in which she was viewed in the office. She maintains that she was the subject of gossip and management gloated about her removal from her position. She also maintains that her coworkers were shocked that this happened to her. Complainant notes that this was not the first time that this type of thing had happened as another female employee was also reassigned following the filing an EEO complaint.
Therefore, on June 18, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 13, 2008, management assigned an official from the financial audit staff to review her work processing for the ESAT Program;
2. On April 17, 2008, her work activities were micromanaged and she was treated less favorably by management than her colleagues;
3. On April 4, 2008, management yelled at her, used abusive and offensive language on the telephone and made aggressive gestures that frightened her;
4. From March 27, 2008, to May 13, 2008, she was subjected to a hostile work environment when management consistently scrutinized her work, sent her offensive and defamatory emails as well as telephone calls, and forced her to participate in unethical and unprofessional practices that would jeopardize her position; and
5. During the hearing, Complainant alleged that she was subjected to reprisal when she was reassigned to a Senior Quality Assurance worker, which was basically a data entry position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on May 27 and 28, 2010, and issued a decision on March 9, 2011. The AJ held that Complainant failed to establish a prima facie case of disparate treatment based on sex because she did not establish that she was treated differently than similarly-situated employees. Similarly, Complainant failed to establish a prima facie case of harassment based on gender because she presented insufficient evidence to suggest that that the conduct complained of was connected in any way to her sex.
The AJ also found that Complainant failed to show that she was subjected to discrimination based on race. Specifically, the AJ found that assuming arguendo that Complainant established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that it was reasonable for a supervisor to become involved in a contract where legal action was threatened, there was no evidence of differential treatment between performance award recipients, and Complainant failed to show that the alleged name calling was motivated by race. The AJ found that the fact that S1 was cold toward Complainant was insufficient to support an inference of racial discrimination. The AJ found that Complainant did not provide sufficient evidence to show that the Agency's articulated reasons were pretext for discrimination. Similarly, the AJ found that Complainant did not present evidence to prove by a preponderance of evidence that the alleged harassment was due to her race as she had failed to show that she was subjected to discrimination based on race.
The AJ also found that Complainant failed to establish a causal connection between her EEO activity and the May 13, 2008 audit, the April 17, 2008, micro-managing and less favorable treatment, the April 4, 2008 yelling and related behavior, and the hostile work environment claim from March 27 to May 13, 2008. The AJ noted that these allegations occurred before the Agency was aware of Complainant's protected activity. However with respect to the transfer, the AJ found that Complainant had been subjected to an adverse employment action when she was transferred from her position as a GS-13 PO to the position of a GS-13 Senior Quality Assurance. The AJ noted that Complainant went from managing multibillion/multimillion dollar contracts to a data entry position after she filed an EEO complaint. And, even though the pay remained constant it was a "disadvantageous transfer" and was reasonably likely to deter employees from engaging in protected activity.
In response, the Agency indicated that Complainant was transferred due to her lack of sufficient technical expertise; inability or unwillingness to retain CO guidance; inability to provide clear and timely responses; unwillingness to work collaboratively; inability to consistently act professionally; and inability to avoid actions which created the appearance of an improper personal services relationship. S1 testified that Complainant was removed at the request of Headquarters due to communication difficulties and because ALION was threatening legal action. S1A indicated that Complainant was transferred because of communication issues and Complainant's lack of attendance at the national 2008 PO conference and meetings in June 2008 and May 2009 about the ESAT contract.
Notwithstanding, the AJ found that Complainant established by a preponderance of the evidence that the Agency's articulated nondiscriminatory reasons were pretext for discrimination based on retaliation. Among other things, it was noted that the Agency's evaluations did not reflect that the transfer was necessitated by Complainant's performance as Complainant received Exceeds Expectations and Fully Successful ratings. Complainant's performance reviews did not show any problems with her work, including the results of the May 13, 2008, audit which uncovered no problems with Complainant's work. Further, the second audit was conducted to determine if Complainant's Region 2 should be used as a model. The AJ found additional evidence of pretext in that the Agency never communicated any alleged performance problems with Complainant and no meeting was ever held with Complainant and Human Resources about performance concerns. Moreover, there was positive testimony from multiple coworkers and the acting Branch Chief which addressed Complainant's work ethic and the quality of her work. It was noted that she was a good worker and coworkers were surprised when she was removed from her PO position. Accordingly, the AJ found that Complainant proved that the Agency's articulated legitimate nondiscriminatory reasons were pretext for discrimination based on retaliation.
Therefore, the AJ concluded that Complainant failed to establish a disparate treatment and harassment claim based on her sex and race. The AJ also found that Complainant failed to establish a prima facie case of retaliation for the May 13, 2008 audit, the April 17, 2008, micro-managing and less favorable treatment, the April 4, 2007 yelling and related behavior, or the hostile work environment from March 27 to May 13, 2008 and related claims. With respect to the June 2009 transfer, the AJ found that the Agency articulated legitimate nondiscriminatory reasons for the transfer. However, the AJ then determined that Complainant met her burden to show that the Agency's reasons were not credible and were pretext for discrimination on the basis of reprisal for Complainant's protected activity.
The AJ issued an Interim Decision on July 12, 2010, finding discrimination and instructed the parties to provide information regarding damages. The AJ also ordered EEO training for all responsible management officials involved, and the Agency was to post a notice of nondiscrimination. On March 9, 2011, the AJ awarded Complainant $100,000 in compensatory damages for humiliation, embarrassment, loss of enjoyment of life, and emotional harm as well as for physical manifestations of that harm as described by her (anxiety, depression, chest pain, shortness of breath, insomnia, crying, swelling in the eyes and weight gain and she was prescribed the antidepressant Zoloft), her family, friends, co-workers and her doctor. The AJ found that this award of nonpecuniary compensatory damages was justified by the evidence in the record and the Commissions decisions.
Using the Lodestar, the AJ found that Complainant was entitled to reasonable attorney's fees of $410 per hour. The Agency argued that the attorney should not be entitled to fees as most of Complainant's claims were unsuccessful. In response, the attorney averred that the hours spent on the unsuccessful issues were deleted from the billing invoice. Notwithstanding the AJ found that the claim of retaliation was an accepted claim from which Complainant was successful on. Further she found that the claim was like and related to the claims in evidence. As such, the AJ did not find the Agency's argument credible and The AJ also awarded attorney's fees in the amount of $73,660.46 were reasonable appropriate and justified in this case. Costs in the amount of $871.79 were also granted as reasonable.
Thereafter, the Agency filed a motion for reconsideration regarding damages, attorney's fees, and the finding of liability against the Agency for the claim of retaliatory removal of Complainant from her Project Officer position. The Agency argued that it was unable to develop the record on the issue of retaliation regarding Complainant's transfer because it was taken by surprise. The AJ found this argument to be untenable as this issue had been discussed during discovery, in a pretrial conference, in Complainant's submissions to the Agency on February 22, 2010, in Complainant's witness testimony prior to the hearing, in opening statements at the hearing, during the witness testimony at the hearing, and in the attorney's closing arguments. The AJ found that the Agency addressed this issue throughout the process without objection. Therefore, the AJ denied the Agency's motion for reconsideration.
The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. The Agency also objected to the compensatory damages awarded in this case.
CONTENTIONS ON APPEAL
On appeal, the Agency argues that the AJ erred when she found that the Complainant established that the June 10, 2009, lateral reassignment was based on retaliation. The Agency argues that there is substantial evidence in the record which demonstrates that Complainant's lateral reassignment was based on the performance deficiencies set forth in the case. The Agency maintains that the supervisors' assessment of Complainant's performance should be the controlling factor in this case.
The Agency also does not concur with the AJ's award of non-pecuniary compensatory damages because it is "monstrously excessive" and is not consistent with amounts awarded in similar cases. The Agency argues that this finding is not supported by the AJ's own subsidiary findings of fact, substantial evidence in the record and Commission precedent. The Agency argues that assuming arguendo that the AJ did not err, the damages are excessive and should be in the range of $2,000 plus.
In response, Complainant argues that the AJ's decision finding discrimination should be upheld. Complainant notes that the Agency had not implemented any of the relief ordered. Further, Complainant's counsel respectfully requests that the Commission recalculate the attorney fee award as her current Laffey matrix rate that had been increased to $420 per hour in January 2011.
STANDARD OF REVIEW
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. (November 9, 1999).
ANALYSIS AND FINDINGS
We note that the Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). In the instant case the Commission finds that the Agency failed to show that the AJ erred with respect to the finding that Complainant was discriminated against on the basis of retaliation when she was transferred to a new position. The Commission finds that the AJ was correct in determining that even though the Agency articulated legitimate nondiscriminatory reasons for its actions, i.e., that Complainant was transferred due to performance problems, the Complainant showed that those reasons were pretext for discriminatory animus as the AJ correctly found that no performance problems were ever communicated to Complainant. Also, the AJ noted that Complainant was thought of very highly by those who worked alongside her. Moreover, her performance was ranked as Exceeds Expectations and Fully Successful during this time. Accordingly, we find that there is substantial evidence in the record to support the AJ's findings here.
With regard to the Agency's contention that the award of non-pecuniary compensatory damages was excessive in this case, we again find that the Agency failed to establish that the AJ erred. The record shows that as a result of discrimination Complainant experienced humiliation, embarrassment, gossip, ridicule, as well as the physical manifestations of stress and anxiety. Complainant's damages are supported by the record through affidavit testimony from, family, friends, coworkers, and her doctor. Additionally, the award of $100,000 for these types of damages is consistent with Commission precedent as is clearly listed in the AJ's decision. Other than not wanting to pay the amount ordered, we find that the Agency has not provided a persuasive argument as to why the amount of the damages should be lowered.
Finally, Complainant's request that her attorney be paid according to the current Leffey matrix rate of $420 per hour instead of the $410 that was used to calculate attorney's fees. The attorney showed that her rate had been increased as of January 2011. As noted above, the AJ's award of damages took place on March 9, 2011.2 The Commission finds that the $420 rate is the correct rate as this rate was the current rate at the time of the decision. Therefore, the Agency will be ordered to recalculate attorney's fees using the $420 amount.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's Final Order which found that Complainant was not subjected to discrimination based on reprisal when she was transferred from her PO position. We find that substantial evidence supports the AJ's finding of discrimination based on reprisal with respect to the transfer.
ORDER
The agency is order to take the following remedial action:
1. Within 45 (forty-five) calendar days of the date of this decision, the Agency is ordered to pay Complainant $100,000 in nonpecuniary compensatory damages.
2. Within 45 (forty-five) calendar days of the date of this decision, the Agency is order to recalculate and pay attorney's fees using the $420 approved rate. The Agency is also ordered to pay costs in the amount of $871.79.
3. The Agency shall immediately take corrective action to ensure such discriminatory actions by and from its supervisors, managers, and all other staff involved in decisions affecting employment, will not recur, including providing 32 hours of mandatory training to all management involved on the rights of employees under Title VII, the obligations of management and personnel staff to insure that those rights are protected, and the possible relief (both disciplinary by the Agency and statutorily from the Commission or the courts) available to such employees against management or personnel staff who discriminate.
4. The Agency shall post the enclosed notice, pursuant to the paragraph below entitled, "Posting Order."
5. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the EEOC compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall provide documentation of their departure date(s).
6. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0900)
The Agency is ordered to post at its Region 2, Headquarters facility in Edison, New Jersey copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (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 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 (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___6/12/12_______________
Date
1 Cure Notices require contractors to complete their financial documentation.
2 The Commission has previously determined that the proper customary hourly rate is the reasonable hourly rate in effect at the time of the award, not at the time services are provided. See Mareno v. Department of Veterans Affairs, EEOC Appeal No. 01943104 (February 14, 1996).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0720110029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720110029