0120110169
11-30-2012
Brenda Godbolt, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Brenda Godbolt,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120110169
Hearing No. 420-2009-00089X
Agency No. ATL-08-0302-SSA
DECISION
Complainant timely filed an appeal from the Agency's 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented on appeal are: (1) whether substantial evidence in the record supports the EEOC Administrative Judge's (AJ's) decision deducting 22-1/4 hours of annual leave from Complainant's leave balance and awarding her 22-1/4 hours of overtime; (2) whether substantial evidence in the record supports the AJ's decision finding that the Agency did not subject Complainant to a hostile work environment based on reprisal; and (3) whether substantial evidence in the record supports the AJ's decision finding that Complainant failed to establish that she was entitled to non-pecuniary compensatory damages.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative/Teleservice Representative, GS-8, at the Agency's Teleservice Center in Birmingham, Alabama. Report of Investigation (ROI), at 3. Complainant's flex time band work schedule was 7:15 a.m. to 5:15 p.m., and she generally reported to work between 8:15 a.m. and 8:45 p.m., taking an hour of leave in the morning and working overtime in the afternoon. Id. at 3-4. On certain days, management allowed Complainant and other employees to take leave so they could work one hour overtime without working nine hours in a given day. Id. This allowed employees to accumulate overtime pay on the same date they used leave or credit hours. Id. at 3-6. However, beginning on February 12, 2008, management denied Complainant's request to use leave on the same days she worked overtime.
Thereafter, on February 14, 2008, Complainant gave candy to all of the male employees in the office. Id. at 9-12. A male employee reportedly told management that Complainant grabbed his neck and kissed him on the cheek. Id. Complainant, however, testified that she did not physically kiss this employee, but instead only blew him a kiss, patted his back, and said happy Valentine's Day. Id. The male employee reportedly did not want to file a complaint, but wanted management to know about the incident. Id. Management conducted a fact-finding interview with Complainant concerning the Valentine's Day incident, and placed a record of the incident in her personnel file. Id.
On June 10, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity1 under Title VII when:
1. She was not allowed to work overtime on the same day she used credit hours or other leave, and on February 20, 2008, management changed the hours she worked overtime to credit hours.
2. The leave requests she submitted during February 12, 2008, through March 14, 2008, were denied. The Unit 9 manager denied a leave request that had been previously approved by the Unit 10 manager.
3. She was subjected to harassment when:
(a) on February 14, 2008, the Unit 9 manager coerced a Teleservice Representative to file a sexual harassment charge against her;
(b) the manager later subjected her to questioning regarding the orchestrated charge; and
(c) on March 6, 2008, she was subjected to a fact-finding inquiry regarding failure to follow rules of courtesy and inappropriate use of duty time.
4. The Unit 9 manager denied her request to take a half-hour of credit time on February 26, 2009, and work one hour of overtime.
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, which the AJ held on June 30, 2010. The AJ issued a decision in favor of the Complainant, in part, on August 18, 2010. The Agency subsequently issued a final order adopting the AJ's finding that Complainant proved, in part, that the Agency subjected her to discrimination as alleged.
The AJ found in favor of Complainant with respect to claims 1 and 2, finding that Complainant established that she was subjected to discrimination based on reprisal for prior protected EEO activity when she was denied leave as alleged. The AJ found, however, that Complainant failed to establish that she was subjected to discrimination with respect to claims 3 and 4.
Specifically, with regard to claims 1 and 2, the AJ noted that Complainant used leave and credit hours on the same days she earned overtime. The AJ noted that Complainant was denied leave on certain days from February 12, 2008, through April 3, 2008, totaling 22-1/4 hours. The AJ noted that if Complainant's leave had been approved on those days, she would have been able to claim an hour of overtime for each day even though she took an hour of leave and only worked an 8-hour day. The AJ noted that the Agency's labor management contract did not prohibit employees from claiming overtime pay on the same date that leave is used. The AJ noted that other employees were allowed to work overtime and use leave or credit hours on the same day, but Complainant was not. The AJ found that Complainant established that the Agency's reasons for denying her leave requests were pretext for discrimination based on reprisal.
To remedy the discrimination, the AJ ordered the Agency to deduct 22-1/4 hours from Complainant's annual leave balance and reimburse her 22-1/4 hours of overtime pay. The AJ found, however, that Complainant was not entitled to an award of non-pecuniary compensatory damages. The AJ noted that although Complainant testified that she suffered physical and emotional harm, she failed to establish that the harm she suffered was the result of management's failure to allow her to take leave and work overtime. The AJ noted that Complainant's blood pressure and stress-related issues preceded her allegations in the instant complaint.
With respect to claim 3, the AJ noted that Complainant received no discipline as a result of the investigative interview and no discipline was proposed. The AJ further noted that management investigated Complainant's behavior in order to comply with the Agency's policy on sexual harassment prevention. The AJ also found that Complainant failed to establish pretext with respect to claim 4.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, contends that the AJ's remedy of deducting 22-1/4 hours of annual leave from her leave balance and awarding her 22-1/4 hours of overtime time was erroneous. Complainant contends that the AJ's remedy of taking earned annual leave from her was improper. Complainant asks for restoration and compensation for her annual leave that the AJ deducted. Complainant further contends that the AJ erroneously failed to grant her non-pecuniary compensatory to remedy the discrimination that she suffered.
Complainant also contends that the AJ's decision was erroneous with respect to claim 3. Complainant contends that management forced an employee to report a sexual harassment charge against her. Complainant contends that this employee told management that he did not want to report the incident. Complainant contends that management's investigation into the sexual harassment, which was placed in her personnel file, was reprisal for her prior protected EEO activity. Complainant asks for the removal of the investigation from her personnel file.
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 for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
AJ's Deduction of Complainant's Annual Leave
The object of Title VII remedies is to make the complainant whole for the injuries suffered, i.e., place the complainant in the position she would have been in absent the discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975). A complainant is not entitled to be placed in a better position than she would have occupied absent the discrimination. Riddick v. Dep't of Veteran's Affairs, EEOC Appeal No. 0720110011 (Nov. 18, 2011), req. for recon. den'd, EEOC Request No. 0520120196 (May 10, 2012) (citing Garde v. Dep't of Commerce, EEOC Appeal No. 01850545 (Nov. 3, 1987)).
While Complainant contends that the AJ improperly deducted leave from her annual leave balance, we find that such deduction places Complainant in the position than she would have been absent discrimination. We note that Complainant does not dispute that she worked 8-hour shifts, taking one hour of leave on same days she worked overtime. Hr'g Tr., at 21. There is no dispute that it was standard practice for Complainant and other employees to take one hour of leave, so they could work one hour overtime without working nine hours in a given day. Id. at 31-32. As such, when Complainant was denied leave she was therefore also denied the opportunity to work overtime on the same day. We therefore find that the AJ's remedy of deducting 22-1/4 hours of annual leave from Complainant's leave balance and awarding her 22-1/4 hours of overtime time is supported by substantial evidence in the record.
Sexual Harassment Investigation, Claim 3
Although Complainant contends that management forced an employee to report a sexual harassment charge against her, she does not dispute that she patted a male employee on his back, said happy Valentine's Day, and blew a kiss to him. ROI, at 9-12. Complainant also does not dispute that she blew kisses to other male employees. Id. We note that Complainant was not disciplined for her behavior, and we can find no evidence contained in the record that management's investigation into Complainant's behavior was motivated by retaliatory animus. We therefore find that the AJ's decision with respect to claim 3 is supported by substantial evidence in the record.
Non-pecuniary Compensatory Damages
Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.302 at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999).
Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. 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)). Objective evidence of compensatory damages can include statements from Complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Statements from others including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Id. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id.
In the instant case, Complainant testified that her blood pressure had elevated to stroke level due to the stress she suffered from the discrimination. Hr'g Tr., at 53. Complainant testified that her hypertension was exacerbated and she lost weight and hair. Id. at 54. Complainant further testified that she had anger built up inside from the discrimination that she suffered. Id. However, we observe that on cross-examination, Complainant testified that she visited her doctor on March 7, 2008. Id. at 73. Therein, Complainant admitted that her doctor denied that she lost weight and hair. Id. at 75-76. Complainant further admitted that her doctor denied that she suffered from double vision, anxiety, depression, and excessive anger. Id. at 77-78. While evidence from a doctor is not a prerequisite for the recovery of non-pecuniary damages, Complainant clearly contradicted herself as evidenced by her testimony. We therefore find that the AJ's decision not awarding Complainant non-pecuniary compensatory damages is supported by substantial evidence in the record.2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order because the AJ's decision is supported by substantial evidence in the record.
ORDER
To the extent that it has not already done so, the Agency is ordered to take the following actions:
1. Within thirty (30) days of the date this decision becomes final, the Agency shall deduct 22-1/4 hours of annual leave from Complainant's leave balance and reimburse her for 22-1/4 hours of overtime pay, at her rate of pay in the February through April 2008 time frame.
2. Within thirty (30) days of the date this decision becomes final, the Agency shall pay Complainant $8,640.00 in attorney's fees.
3. The Agency shall provide EEO training for the responsible management officials identified by the AJ, addressing their responsibilities with respect to eliminating discrimination in the workplace with an emphasis on retaliation.
4. The Agency shall post the attached notice of discrimination as attached below.
5. 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 detailed supporting documentation of the Agency's payment of compensatory damages and attorney's fees to Complainant.
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.
POSTING ORDER (G0610)
The Agency is ordered to post at its Birmingham, Alabama, Teleservice Center 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.
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 (S0610)
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. 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 (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
November 30, 2012
Date
1 The record reflects that Complainant dropped race as a basis during the investigation of her complaint.
2 On appeal, Complainant only contests the AJ's decision with respect to the matters addressed above. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � IV.A. (Nov. 9, 1999) (the Commission has the discretion to only address the issues specifically raised on appeal).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110169
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110169