0120131556
10-09-2014
Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency.
,
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120131556
Hearing No. 541-2011-00001X
Agency No. MMS-09-0493
DECISION
Complainant filed an appeal from the Agency's February 11, 2013 Final Order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission MODIFIES the Agency's Final Order implementing the AJ's finding of discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Auditor at what was then known as the Agency's Minerals Management Service facility in Denver, Colorado.1 The record shows that Complainant was hired in May 2009, pursuant to a special appointment hiring authority, 5 C.F.R. � 213.3102(u), known as Schedule A. That appointment included a one-year probationary period. On December 2, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (diabetes) and in reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. From August 3, 2009 to October 28, 2009, Complainant was subjected to a hostile work environment.
2. On October 28, 2009, Complainant's employment was terminated during probation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on October 4, 2011, and October 5, 2011. Thereafter, the AJ issued a decision on January 9, 2013.2
In her Decision, the AJ found that the Agency had subjected Complainant to discrimination on the bases of disability and in reprisal for protected activity as alleged in his complaint. The AJ found that Complainant's application for employment with the Agency included all the medical documentation necessary to qualify him for placement under Schedule A as a person with a serious disability. Complainant's application included a statement regarding his work readiness, accompanied by a cover letter in which Complainant requested four accommodations to permit him to perform the essential functions of the position for which he applied and was ultimately hired. Complainant requested an ergonomic chair, an ergonomic keyboard, voice recognition software, and a flexible schedule so he could eat and monitor his diabetes as needed. The AJ found that Complainant was never provided with any of these accommodations.
Additionally, the AJ found that Complainant made subsequent requests for accommodations including a transfer to a different team where the supervisor agreed to ensure that Complainant was properly trained for success as she had done for another employee. The AJ observed that Complainant also requested that he be permitted to work in an environment designed to control excessive stress, which was exacerbating Complainant's symptoms. The AJ found that on October 6, 2009, Complainant's request for a reduced stress environment was denied. Additionally, on October 16, 2009, Complainant requested a training plan and the lifting of restrictions regarding review of his work. Those requests, the AJ noted, were also denied, in part, because Complainant's second level supervisor, S2, did not consider them to be reasonable accommodations. Complainant was terminated during his probationary period effective October 28, 2009.
The AJ found that the Agency failed to engage in the interactive process and failed to fulfill its obligations under the Rehabilitation Act. The AJ found that it cannot be known whether Complainant was "right" for the Auditor position because the Agency never provided him with appropriate accommodations. The AJ noted that the most feedback Complainant received from the Agency during his probation occurred in September and October 2009, after Complainant's supervisors (S1 and S2) had determined that Complainant would be terminated during probation. The AJ concluded that Complainant was subjected to discrimination on the bases of disability and retaliation.
The AJ ordered the Agency to provide Complainant with remedies including back pay, compensatory damages, and attorney's fees. The AJ also ordered the Agency to post a notice that the discrimination occurred, to train the responsible management officials, and to provide Complainant with interim relief in the event the Agency appealed the AJ's Decision. The AJ did not order the Agency to reinstate Complainant to the position from which he was terminated or to provide Complainant with front pay. The Agency subsequently issued a Final Order adopting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged, and fully implemented the remedies ordered by the AJ.
On appeal, Complainant challenges the denial of reinstatement or front pay. Complainant argues that reinstatement is the preferred means of making Complainant whole after separation. Complainant states that the AJ's comment that Complainant "may not have ultimately succeeded in the position" is pure speculation. Complainant acknowledges that the AJ has the discretion to award either reinstatement or, where appropriate, front pay, but to deny both forms of relief is an abuse of the AJ's discretion under the circumstances.
On appeal, the Agency states that the AJ properly denied both reinstatement and front pay. The Agency points out that reinstatement is not appropriate given the hostility toward Complainant displayed by S1, Complainant's immediate supervisor. The Agency further notes, as did the AJ, that front pay is designed to provide Complainant with compensation to bridge the time until he is again employed. In this case, the AJ properly observed that Complainant was already employed at the time of the hearing.
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. (November 9, 1999).
As a preliminary matter, we find neither party challenges the AJ's finding of discrimination or the remedies in the AJ's Decision apart from reinstatement or front pay. We therefore confine our discussion to the AJ's denial of reinstatement or front pay.
We find the AJ erred when she failed to order the Agency to reinstate Complainant to the position he held at the time he was separated from the Agency, subject to successful completion of his probationary period.
Front pay is a form of equitable relief that compensates an individual when reinstatement is not possible in certain very limited circumstances. In general, reinstatement is preferred to an award of front pay. Romeo v. Dept. of the Air Force, EEOC Appeal No. 01921636 (July 13, 1992). Awards of front pay imply that a complainant is able to work but cannot do so because of circumstances external to complainant. Coetze v. Dep't of the Navy, EEOC Appeal Mo. 01991530 (August 22, 2001); Brinkley v. U.S. Postal Serv., EEOC Request No. 05980429 (August 12, 1999). The Commission has identified three circumstances where front pay may be awarded in lieu of reinstatement: (1) where no position is available; (2) where a subsequent working relationship between the parties would be antagonistic; or (3) where the employer has a record of long-term resistance to anti-discrimination efforts. Petitioner v. Dep't of Justice, EEOC Petition No. 0420080016 (Oct. 28, 2010) (citation omitted).
We consider the AJ's observations regarding the animosity of S1, Complainant's immediate supervisor, and S2's hostility toward Complainant in the final months of Complainant's tenure with the Agency, during which Complainant's various requests for accommodation were met with denials because the two supervisors had already determined that Complainant could not succeed in the position. The AJ found the steps undertaken to accommodate Complainant's disabilities immediately prior to his separation were a sham and were motivated in part by S1 and S2's disbelief that Complainant's diabetes was a disabling condition. The AJ also found that S1 and S2 believed instead that Complainant was making excuses for his failure to progress as expected.
We concur with the AJ's observations that whether Complainant would have succeeded in the position had he been accommodated from the time he entered on duty in May 2009, remains unknown because the initial accommodations he requested, specifically, an ergonomic chair and keyboard, voice recognition software, and a flexible schedule, were never provided. We note that Complainant identified a different supervisor willing to provide Complainant with adequate training (and presumably effective accommodations) and that this supervisor had done so in the past for other employees. We find this reassignment to the same position in a different supervisory chain is reasonable upon this finding of discrimination.
In general, where a complainant establishes discriminatory separation, an order for reinstatement requires that the Agency offer to place Complainant in the position he would have held, absent discrimination, or a substantially equivalent one. Under the circumstances of the instant case, we find that appropriate make-whole relief includes ordering the Agency to reinstate Complainant to the position he held at the time he was terminated from the Agency, or to a substantially equivalent position, subject to the successful completion of the remaining months of his probation, and that he be provided immediately with effective reasonable accommodations. We find it appropriate to require that Complainant be placed in a position where he receives appropriate training, and that he reports to different supervisors than those whom the AJ found failed to fulfill their obligations under the Rehabilitation Act.
We find that the circumstances of this case do not meet the criteria for an award of front pay. We do not find that Complainant's former position has been abolished or that reinstatement would necessarily entail an antagonistic relationship between the Agency and Complainant in light of the identified Agency official who was willing to accept Complainant for training through reassignment.
We shall order the Agency to comply with the AJ's order of remedies, as slightly modified, plus our requirement that Complainant be reinstated with different supervisors to complete his probationary period.
CONCLUSION
Based on a thorough review of the record, we MODIFY the Agency's Final Order and we REMAND the matter so that the Agency may comply with the Order herein.
ORDER
To the extent that it has not already done so, the Agency shall:
1. Within 60 days of the date on which this decision becomes final, the Agency shall offer Complainant the position of Auditor, GS-511-07, or a substantially equivalent position, subject to the remaining period of his probationary period. This position shall have different supervisors than those that were found to have discriminated against Complainant in this decision. Complainant shall be given a minimum of 15 days from receipt of this offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer. If Complainant accepts the offer, the appointment shall be retroactive to October 29, 2009.
2. Within 60 days of the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Agency shall report its decision on discipline to the Compliance Officer referenced herein. 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 employment, then the Agency shall furnish documentation of their departure date(s).
3. Within 60 days of the date this decision becomes final, the Agency shall determine the appropriate amount of back pay (with interest, if applicable) beginning October 29, 2009, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the complainant for the undisputed amount within 60 days of the date the agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
3. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant a total of $120,152.48 in compensatory damages, of which $75,000 represents nonpecuniary, compensatory damages.
4. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant's counsel $73,483 in attorney's fees and $574.86 in costs. In addition, $376.33 in costs shall be paid to Complainant.
5. Within 180 days of the date this decision becomes final, the Agency shall provide all managers and supervisors in Office of Natural Resources Revenue, training on the process of Schedule A hiring, as well as on the Rehabilitation Act, including but not limited to management's obligation to engage to the interactive process.
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 (G0914)
The Agency is ordered to post at its Denver, Colorado facility 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.
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
October 9, 2014
__________________
Date
1 Now the office is known as Office of Natural Resources Revenue.
2 The record reveals that the AJ issued a correction to her Decision on January 30, 2013.
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0120131556
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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