Maren K.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 20, 2020

2020000777 (E.E.O.C. Aug. 20, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maren K.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020000777 Hearing No. 531-2017-00217X Agency No. ARADELPHI14AUG03086 DECISION Following its November 7, 2019, final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of unlawful retaliation in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. BACKGROUND In late February 2014, pursuant to the settlement of a prior complaint, Complainant was assigned to a Procurement Analyst, GS-14, position in the Compliance Support Division (CSD) of the Army Contracting Command located in Adelphi, Maryland. The position was a six-month development assignment.2 The Associated Division Chief, CSD was Complainant’s supervisor (hereinafter “Supervisor-C”). 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. 2 Before starting her CSD assignment, Complainant was selected for a three-month detail on an Inspection Team of the Inspector General. The detail, located in Arlington, Virginia, was to run 2020000777 2 In early October 2014, Complainant was reassigned to a Contracting Specialist, GS-14, position. Her Team Lead (hereinafter “Lead-K”) assigned her work and the Associate Division Chief, Contracting Branch (hereinafter “Supervisor-W”) was her supervisor. Believing that she was subjected to discrimination, Complainant contacted an EEO Counselor. Informal efforts to resolve her concerns were unsuccessful. Subsequently, on September 19, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (ADHD, hearing impairment, sleep apnea) and reprisal for prior protected EEO activity. The Agency framed the claims as follows: 1. On or about January 3, 2014 [Supervisor-C] criticized Complainant for getting lost while driving to work and arriving late, and made the derogatory remark, “and you’re supposed to be a GS-14.” 2. On or about March 11, 2014 [Supervisor-Q] inappropriately placed Complainant in an unpaid work status although [another management official] authorized Complainant to make an adjustment to her work schedule. 3. On or about March 27, 2014, [Supervisor-C] sent a DA Form 7222-13 to Complainant that stated initial discussions had taken place with Complainant on January 13, 2014; Complainant said the initial discussions did not take place and the document is false. 4. On or about April 1, 2014, [Supervisor-C] harassed Complainant regarding the possession of a work cell phone and laptop computer which, according to [Supervisor-C] should not have been in Complainant’s possession. 5. On or about April 23, 2014, [Supervisor-C] harassed Complainant by stating she “is not smart enough to work the system” in regard to Complainant’s use of her work computer to attend a training course. 6. From January through August 2014, [Supervisor-C] made derogatory and harassing comments regarding Complainant’s mental (ADHD) and physical (hearing impairment and sleep apnea) disabilities from January 14, 2014 through March 7, 2014. While at OIG, she was under the supervision of “Supervisor-Q”. 3 Senior System Civilian Evaluation Report, which provides a performance rating on a scale of one to five (five for failing). 2020000777 3 In early April 2015, after more than 180 days had passed without the issuance of a Report of Investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). While the matter was pending before an AJ, on December 18, 2015 and January 26, 2016, Complainant sought to amend the complaint to include additional examples of the discrimination, hostile work environment, and retaliation: 7. On or around July 2014, [Supervisor-C] issued Complainant an inaccurate and lowered performance appraisal rating of “4”, without justification. 8. Between July 27, 2014 and October 19, 2014, [Supervisor-C] failed to assign Complainant an adequate amount of work to complete, without justification, despite assigning Complainant’s coworkers an adequate amount of work to complete. 9. On October 19, 2014, shortly after Complainant filed the instant EEO complaint [Division Chief] reassigned Complainant to work under the supervisor of [Lead-K], who is lower in pay-grade than Complainant, under the guise that Complainant requested the reassignment, without Complainant’s authorization. 10. Between October 19, 2014, and October 30, 2014, [Lead-K] failed to assign Complainant an adequate amount of work to complete, without justification. 11. In or around December 2014, [Lead-K] failed to take corrective action after Complainant notified him that she did not have authorization to access certain files that were necessary for her to complete tasks associated with the duties and responsibilities of her position. 12. On or around February 2015, [Lead-K] informed Complainant that she was not allowed to read/interpret the Federal Acquisition Regulations (FAR), despite the fact that these are duties of her GS-14 position. 13. On December 16, 2015, Complainant learned that [Supervisor-W] denied her request for Administrative Leave and required her to take annual leave in order to attend an EEOC AJ-ordered status conference in the instant EEO complaint. 14. On January 13, 2016, Complainant learned that [Supervisor-W] denied her accommodation request for situational telework, which Complainant submitted on December 22, 2015, due to her inability to drive following her December 30, 2015 surgery. 2020000777 4 The AJ permitted the amendment of the complaint and the additional claims were included.4 Prior to the hearing, however, the AJ granted the Agency’s motion to for summary judgment regarding claims (1), (2), (4), (5), (6), (11), and (12).5 A hearing on the remaining claims was held on May 9, 2019. In her September 11, 2019 decision, the AJ found no discrimination with regard to claims (3), (7), (9), and (10). While Complainant disputed that an initial discussion occurred (claim (3)), and believed the resulting evaluation was incorrectly lowered, the AJ found evidence showed Supervisor-C communicated in person and through email with Complainant, which was sufficient to justify including the discussion date on the form. Regarding her lowered rating (claim (7)), Complainant argued that Supervisor-Q’s summary of her work at IG should have been included in the CSD appraisal by Supervisor-C. Based on testimony by the HR Specialist, the AJ agreed that the summary should have been included, but found no evidence that Supervisor-C intentionally excluded the summary to discriminatorily lower Complainant’s score. Additionally, the AJ noted that Supervisor-C’s review covered four months, while the work under Supervisor-Q was only five weeks of the rating period. Further, the AJ found that Supervisor-C’s belief that Complainant’s performance was declining and unsatisfactory was supported by evidence in the record. Complainant alleged that she was discriminatorily reassigned to Lead-K, who was a lower pay grade, without her consent (claim (9)). Finding that the record showed that Complainant had expressed an interest in transferring to contracting, she was not performing well under Supervisor- C, and she did not object, the AJ found no evidence of discrimination. As for Complainant’s belief that she was not assigned enough work (claim (10)) by Lead-K, the record reflected that Lead-K was out on paternity leave for a portion of the relevant time, the workload during that time of year was usually slow, and Agency records indicated that Complainant received the same amount of work as her teammates. According to the AJ, Complainant failed to effectively refute these legitimate reasons nor show pretext. As for claims (8) and (14), the AJ found that, more likely than not, the Agency’s actions were the result of unlawful retaliatory animus. Complainant believed that Supervisor-C failed to assign her adequate work (claim (8)) without justification, from late July until mid-October 2014. The AJ noted that Supervisor-C himself testified at the hearing that he stopped assigning Complainant work because she had filed an EEO complaint against him. 4 On July 15, 2016, Complainant requested that her hearing request be dismissed without prejudice to allow the investigation of the additional claims. The AJ dismissed the hearing request without prejudice and ruled that Complainant could renew her request within 180 days. Complainant did so on January 11, 2017. 5 We note that the AJ erroneously refers to the “dismissal” of these claims. However, a review of the AJ’s decision shows that summary judgment was granted and the merits of the claims considered without a hearing. 2020000777 5 In his deposition he stated, “Why would I continue to assign her work if she has a problem with me?” Noting that Supervisor-C also explained that Complainant was struggling to meet deadlines, spent her time completing online course work, and did not request more work, the AJ concluded that, “it is clear he had retaliatory animus, at this point.” Regarding the denial of telework following her surgery (claim (14)), the AJ observed that Supervisor-W could not recall why telework was denied. Supervisor-W did theorize that the denial may have been because Complainant did not have a telework agreement in place due to her low performance rating by Supervisor-C, laptops were unavailable, or the work did not lend itself to telework (i.e. “contract closeouts” required hard files located in the office). However, when asked, Supervisor-W testified that Complainant could have performed other types of work. The group of management officials who denied Complainant’s request included Supervisor-C, who the AJ had already found had retaliated against Complainant. Therefore, in light of Supervisor-C’s participation, as well as management’s lack of a definitive answer or documentation for the denial, the AJ concluded that a preponderance of the evidence supported a finding of unlawful retaliation. In denying Complainant administrative leave to attend a status conference call with an EEOC AJ (claim (13)), the AJ recognized that Supervisor-W and the HR Specialist likely misunderstood the circumstances for the request. Nevertheless, even in the absence of animus, the AJ found the denial to be per se violation of the anti-retaliation provisions of the Rehabilitation Act. As a result, the Agency was ordered to take the following action: restore the leave used between January 11, 2016 and February 1, 2016; restore the annual leave used on December 14, 2015; provide $1,060 in medical expenses; and $6,700 in non-pecuniary compensatory damages. Following the submission of Complainant’s Attorney’s Fees petition, the AJ issued a decision on fees and costs on September 30, 2019. The AJ found sufficient documentation to warrant “Laffey” rates for two of Complainant’s attorneys, but also denied travel costs from Texas to Baltimore and applied an across-the-board reduction of 60% to award $32,202.20 in fees and $2,106.63 in costs. On November 7, 2019 the Agency issued a final order rejecting the AJ’s finding that Complainant proved that the Agency subjected her to unlawful retaliation in claims (8) and (14).6 In conjunction with the final order, the Agency filed in the instant appeal. ANALYSIS AND FINDINGS 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). 6 The Agency does not dispute the finding of discrimination regarding claim (13). Therefore, our review shall not include claim (13). 2020000777 6 A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swing, 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). Disparate Treatment Claim (8) As noted above, the AJ concluded that, by a preponderance of the evidence, Supervisor-C’s failure to assign Complainant sufficient work between July 27, 2014 and October 19, 2014 was retaliatory. On appeal, the Agency contends that Complainant’s workload was decreased before the filing of the instant complaint and that Supervisor-C was unaware a complaint was filed against him until he signed a witness participation document on September 2, 2014. Additionally, the Agency maintains that the reduction in work was related to Complainant’s performance and since the lower performance appraisal was not found to be discriminatory nor should the reduction in work. As for Supervisor-C’s statements during his deposition, the Agency argues the AJ “improperly relied on a rhetorical remark,” made five years after the 2014 decrease in work, as direct evidence of reprisal. Similarly, the Agency reasons that the AJ took Supervisor-C’s hearing testimony out of context in finding reprisal. Instead, reasons the Agency, it is more likely than not that Complainant’s work assignments were decreased due to legitimate reasons. Finally, the Agency determined that not being provided with “adequate work” is not “materially adverse.” During his deposition, Supervisor-C explained his view of the EEO process, noting that it supports employees over employers and complainants are simply taken at their word. More specifically, Supervisor-C attested that Complainant is “off the hook,” regarding her work assignments, if she goes to EEO. When asked: “So the fact that she goes to the EEO office stops the supervisor from assigning her work?”, Supervisor-C responded: “yeah, in our office. Why would I continue to assign her work if she has a problem with me?” At the hearing, Supervisor-C testified that he stopped assigning Complainant work after he evaluated her in July 2014 through her reassignment to another office. When asked why, he stated: “She’s already had the pattern of not understanding the work. Then, here comes the ADHD frame. Then, here comes the EEO. Then, the transfer. It was - the window of all that coming to my attention was tight. So there was no need for me to continuing issuing her work when she already has an EEO complaint against me . . .and she’s switching over here anyway.” Supervisor-C’s own statements illustrate his retaliatory animus against Complainant for her engagement in protected EEO activity. 2020000777 7 While the Agency argues that Supervisor-C was unaware of the instant complaint until he was contacted as a witness, Supervisor-C himself stated that he learned of Complainant’s prior EEO activity in December 2013, when he learned that she was being reassigned as the result of an EEO settlement. As for the Agency’s assertion that Complainant’s workload was decreased prior to the filing of the instant complaint (on September 19, 2014), the timeframe set forth in claim (8) plainly alleges just that. We are not persuaded by the Agency’s contentions on appeal. The AJ’s determination that Supervisor-C’s failure to assign adequate work to Complainant was reprisal for her EEO activity is supported by substantial evidence. Claim (14) The AJ also found the Agency’s denial of Complainant’s December 2019 request for temporary telework following her surgery was unlawful. The Agency argues on appeal that the AJ erred in concluding that management did not state definitively, or provide documents explaining, their decision to deny Complainant telework. According to the Agency, Complainant was needed to work on closeouts, which is not conducive to telework. As for the AJ’s inquiry during the hearing, as to whether Complainant could have performed other work, the Agency contends it went beyond the scope of the claim. At the hearing, Supervisor-W acknowledged that during her deposition she was unclear on the reason for the denial, citing the absence of the denial document at the time. But during the hearing she explained: “I’ve since, because I thought maybe it was just because of inventory, that I’ve realized it was because of the decision between the upper level management, because I wasn’t the last final deciding factor.” According to Supervisor-W, the final decision was made by Division Chief. She testified that Complainant was needed to work on closeouts, many of which were “so old, they were hard copy, so she needed to be in the office” to work on them. However, questioning by the AJ revealed the possible pretextual nature of this reason, as Supervisor-W explained that there was other work Complainant could complete from home, and coworkers in the office also worked on closeouts. Supervisor-W testimony further revealed that she was unsure of what Complainant’s assignments were during the relevant time. Additionally, the Agency believes the AJ was “overreaching” in concluding that Supervisor-C’s participation in the group that denied the telework request contributed to a finding of discrimination. A review of the hearing record reflects that Supervisor-C initially denied involvement with the telework request, stating he was not Complainant’s supervisor at the time and so the decision was not up to him. However, upon questioning by the AJ, Supervisor-C acknowledged he was a participant in the discussion with Supervisor-W and the Division Chief. In the questions that followed, Supervisor-C confirmed his belief that Complainant “used a ‘woe- is-me’ tactic for personal gain in filing her EEO complaint.” Based on the evidence, the AJ’s conclusion that Supervisor-C, already found to harbor discriminatory animus for Complainant’s EEO activity, impacted the discussion of her telework request is supported by the instant record. 2020000777 8 Although Supervisor-C and Supervisor-W point to Division Chief as the official who denied the request, Division Chief testified that he too did not have a “direct recollection” of the discussion regarding the decision. With respect to requests for medical telework generally, Division Chief simply stated it would have been discussed by the group and if “everything was in order . . . they would have been approved.” Yet he provides no insight regarding the denial of Complainant’s request. Not only were the responses by the management officials lacking, but it appears that Human Resources was not involved with the determination. The Agency’s Human Resources Specialist testified that he had no memory of being consulted regarding Complainant’s telework request, despite the fact that his job duties encompass providing such advice. Emails provided by the Agency confirm his absence. Moreover, the HR Specialist verified, when asked by the AJ, that he has talked with supervisors about changing workloads temporarily to enable an employee to work from home. We must also note that the Agency repeatedly asserts that the denial of telework “in no way deterred Complainant from engaging in the EEO process” and therefore the denial was not an adverse action. The Agency’s reasoning illustrates a misunderstanding of the standard used in cases of reprisal. The Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed “with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity” (emphasis added). Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). Whether or not Complainant was actually deterred is irrelevant. Therefore, we find that the AJ’s determination that the Agency’s failure in providing a clear and consistent reasons for the denial established, more like than not, that the reasons proffered were pretextual. Compensatory Damages Non-Pecuniary The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in the Commission's enforcement guidance. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dept. of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. 2020000777 9 The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14. In Carle v. Dept. of the Navy, the Commission explained that “objective evidence” of non- pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. It is the complainant's burden to establish that such a causal connection exists; it is not the agency's burden to disprove it. See EEOC Notice No. 915.002 at 11-12, 14; Rivera, EEOC Appeal No. 01934157. In the instant case, the AJ cited testimony from Complainant, her daughter, and a clinical psychologist in awarding Complainant $6,700 in compensatory damages. As a result of the discrimination, Complainant stated that she suffered emotional distress which manifested in the following circumstances: getting sick more often, family problems; weight gain, and her withdrawal from her social life. Complainant’s daughter testified that Complainant was “stressed and upset about work”. Complainant’s ADD symptoms, anxiety and depression were exacerbated by the stressful work conditions, testified the psychologist. The AJ also awarded Complainant $1,060 in out-of-pocket medical expenses. On appeal, the Agency argues that the award exceeds make-whole relief. The Agency argues, instead, the award should only reflect Complainant’s success with claims (8) (inadequate work assignments) and (14) (denial of telework). According to the Agency, Complainant did not assert she suffered stress, depression or other pain as a result of the reduced workload or denial of telework. Based on a review of the instant record, we agree that Complainant has established entitlement to non-pecuniary compensatory damages. Complainant described being sick more often and experiencing weight gain. Regarding her reduced workload in particular, Complainant testified that it caused her stress and embarrassment around her colleagues. Further, she “pulled back from going places and doing things and sort of became a hermit.” Complainant’s familial relationships experienced an impact as she “t[ook] all my problems home.” Her daughter stated Complainant was “more distressed about everything” and “flustered”. She acknowledged her mother had seen more than one therapist. Complainant’s psychologist testified to meeting with complaint between September and October 2014, during the time she was not given adequate work. The psychologist stated that stress from work was exacerbating Complainant’s ADHD, as well as her symptoms of anxiety and depression. As noted above, the AJ awarded Complainant $6,700 in non-pecuniary damages. The AJ’s determination, reflecting the testimony of various witnesses, illustrates that the award is supported by substantial evidence and takes into consideration the nature of the discriminatory actions as well as the severity of harm suffered by Complainant. 2020000777 10 Moreover, we agree that the award is consistent with awards in similar cases. See Smith v. Dep't of Defense, EEOC Appeal No. 01984888 (Dec. 22, 2000) (granting $6,000 in non-pecuniary damages for retaliatory low performance appraisal where limited testimony established emotional pain and suffering which caused complainant to seek counseling); Onyeka v. Department of the Treasury, EEOC Appeal Number 01A50469 (March 3, 2006)(brief statement by the complainant's physician about temporary treatment for high blood pressure and the complainant's own statement about emotional distress, mental anguish, and disruption to family life supported award of $5,000 in non-pecuniary damages); See Thompson v. U.S. Postal Serv., EEOC Appeal No. 01A02660 (Dec. 30, 2002), request for reconsideration denied, EEOC Request No. 05A30433 (March 20, 2003) (awarding $10,000 where Complainant was denied overtime and issued letter of warning in retaliation and established that it caused humiliation, embarrassment, headaches and difficulty sleeping. Complainant submitted statements from a psychologist and counselor, which were not specific as to the extent the harm was caused by the specific retaliation); Pecuniary Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. EEOC Notice No. 915.002 at 14. Here, Complainant requested pecuniary damages in the form of reimbursement for medical expenses. In disputing the AJ’s award of Complainant’s medical expenses ($1,060), the Agency asserts that the doctor visits occurred in September and October 2014, but her telework was denied in January 2016 (claim (14)). As previously noted, the visits correspond with the time Complainant was not receiving work assignments (claim (8)). The Agency is reminded that it was found to have discriminated against Complainant in not only claim (14), but also with respect to claims (8) and (13). The AJ’s award of medical expenses was proper. Equitable Relief Leave Restoration The AJ ordered the Agency to “restore the leave Complainant had to use because of the denial of her telework request from January 11, 2016 through February 1, 2016.” The Agency, however, contends that Complainant only used annual leave for the week of January 11, 2016 through January 18, 2016. It requests that the award be modified accordingly. A review of the record shows that Complainant did use annual and sick leave for the entire week of January 11, 2016. Reports for “Automated Time and Attendance Report by Employee” also reflect that Complainant worked only partial days in the weeks that followed. It appears that he was granted administrative leave for all or part of the days between January 25 and 28, 2016, and worked the remaining hours. 2020000777 11 Complainant did use 4 hours of annual leave on January 20, 2016 and 3.30 hours on February 1, 2016. Therefore, we find that the AJ was correct in awarding the restoration of leave through February 1, 2016. Attorney’s Fees and Costs The AJ awarded $32,202.20 in attorneys fees and $2,106.63 in costs. In reaching the sums, the AJ applied the Laffey matrix since, although the lead attorney was located in Texas7, the claims arose in the D.C. area and the work was done by a D.C. firm. While Complainant requested fees for work by nine attorneys, the AJ only found “minimally sufficient documentation” to support the Laffey rates for the two attorneys who completed the majority of the work. The work done by the remaining attorneys was not reimbursed. Acknowledging that Complainant did not prevail on her hostile work environment claim, a majority of the complaint, the AJ applied an across-the-board reduction of 60%. The AJ reasoned this reduction sufficiently represented Complainant’s success on three claims and the associated award of remedies. On appeal, the Agency reiterates its belief that a 90% across-the-board reduction should have been applied to reflect the “minimally sufficient affidavits,” as well as work done on the depositions related to unsuccessful claims and failed sanctions motions. We find that the AJ’s appropriately considered the lacking documentation and Complainant’s limited success in applying the 60% reduction. Moreover, the application of an across-the-board reduction eliminates the need for line-by-line deductions sought by the Agency. Therefore, the AJ’s decision on fees and costs8 was proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency’s decision not to implement the AJ’s decision. The complaint is REMANDED to the Agency in accordance with this decision and the ORDER below. ORDER Within ninety (90) calendar days of the date this decision is issued, the Agency shall: (1) Restore the leave Complainant used between January 11, 2016 and February 1, 2016. 7 Accordingly, the AJ denied the travel costs associated with counsel traveling from Texas to Baltimore, Maryland. 8 The Agency’s appeal brief does not challenge the award of costs. 2020000777 12 (2) Restore the 1.5 hours of Annual Leave Complainant used on or about December 14, 2015, to attend a conference related to her EEO complaint. (3) Provide payment of non-pecuniary compensatory damages to Complainant in the amount of $6,700.00. (4) Provide payment of $1,060.00, for out-of-pocket medical expenses, to Complainant; (5) Provide payment to Complainant’s attorneys, at Tully Rinckey, PLLC, $34,308.83 ($32.202.20 in fees + $2,106.63 in costs). (6) Post a notice in accordance with the paragraph below. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). POSTING ORDER (G0617) The Agency is ordered to post at its Compliance Support Division (CSD) of the Army Contracting Command, located in Adelphi, Maryland 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 2020000777 13 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 2020000777 14 A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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. 2020000777 15 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 August 20, 2020 Date