Gweneth A. Burton, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency. Appeal No. 0720090046 Hearing No. 460-2008-00080X Agency No. P-2007-0460 DECISION Following its July 10, 2009 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 partial rejection of the relief ordered by the AJ. Specifically, the Agency challenges the remedial order that all managers at the facility receive training and the monetary reimbursement of sick leave. For the following reasons, the Commission MODIFIES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Employee Services Manager at the Agency’s Houston Detention Center in Houston, Texas. Complainant filed an EEO complaint alleging that she was subjected to a discriminatory hostile work environment on the bases of race (association with African-American significant other), sex (female), and in reprisal for prior protected EEO activity. At the conclusion of the investigation, Complainant was provided 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 October 7 and 8, 2008. On May 27, 2009, the AJ issued a decision. The AJ found that Complainant had proven that she was subjected to a discriminatory hostile work environment and retaliation by the Warden. The AJ found that the Warden discriminated against Complainant when he, among other things, spoke to her in a condescending manner, downgraded her performance evaluation rating, spoke with her co-workers about her and singled her out, and reported her as having an inappropriate relationship with her supervisor. The AJ found it improbable that the Warden had no knowledge of Complainant’s significant other as there was testimony that Complainant mentioned him during their initial interview and brought him to the Warden’s office for an employee’s retirement party. Moreover, the evidence showed that the Warden treated Complainant differently because of her relationship with an African-American male and that his attitude changed towards her when he found out about her relationship. Accordingly, the AJ found that Complainant had established that she had been subjected to retaliation and a discriminatory hostile work environment on the alleged bases. The Agency subsequently issued a final order accepting the AJ’s finding that Complainant was subjected to discriminatory harassment and retaliation, but rejecting the AJ’s remedial awards of training for all managers and supervisors and payment of $1,633.00 as reimbursement of sick leave. The Agency argues that ordering training for all managers and supervisors is overly broad. The Agency asserts the Warden has since retired from federal service and that requiring managers uninvolved in the matter and not found to have engaged in any unlawful behavior is overreaching. Additionally, the Agency contends that restoration of sick leave is an equitable remedy and the AJ erred in ordering the Agency to pay damages rather than restore 30.5 hours to Complainant’s sick leave balance. Accordingly, the Agency requests that the Commission overturn those awards. Complainant offers no arguments in response. 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. Nat’l 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999). The Commission notes that the Agency does not take issue with the AJ’s finding of discrimination; rather, it states in its final action that it rejects part of the corrective action. After a review of the record, the Commission finds that the AJ’s decision was supported by substantial evidence in the record, and there is no dispute by the Agency in this regard. Sick Leave Reimbursement The AJ ordered the Agency to reimburse Complainant $1,633.00 for sick leave taken as a result of the Agency’s discriminatory harassment. The Commission finds that this is more properly viewed as a claim for equitable relief. McGowan-Butler v. Dep’t of the Treasury, EEOC Request No. 05940636 (Sept. 9, 1994). The Commission has previously held that restoration of leave taken for purposes of avoiding or recovering from discriminatory harassment is a valid component of equitable relief. See Whiting v. ACTION, EEOC Request No. 05900093 (June 27, 1990). In addition, the Commission has held that a successful Title VII complainant is entitled to reimbursement of sick leave taken as a direct result of unlawful discrimination. Harris v. Dep’t of the Air Force, EEOC Request No. 05901142 (Jan. 11, 1991). Accordingly, Complainant is entitled to restoration of the sick leave taken because of the unlawful discrimination. As a result, the Commission finds that the AJ’s award of reimbursement of sick leave was proper, but 30.5 hours should be restored to Complainant’s sick leave balance rather than a monetary award. Training Finally, the Agency takes issue with the “overly broad” extent of the Agency's order, which directs training of every supervisory and managerial staff member, not just the Warden, who has since retired from federal service. After careful consideration of the Agency's argument, the Commission discerns no basis to disturb the AJ’s order regarding training. Given the fact that one of the responsible management officials found to have engaged in unlawful discrimination and retaliation was the Warden, who serves in a position that sets the leadership tone for the entire facility, the Commission cannot find that the AJ erred in issuing an order that required five hours of EEO training for all facility management and supervisory staff. Therefore, the Commission determines that the AJ’s order concerning training was a proper exercise of her discretion after hearing the evidence in this matter. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission MODIFIES the final order and REMANDS this matter to the Agency to take remedial action in accordance with this decision and the ORDER below. ORDER The Agency, to the extent that it has not already done so, is ordered to take the following remedial action: 1. Pay Complainant $15,000.00 in non-pecuniary damages, within 60 days of the date of receipt this order. 2. Pay Complainant $1,150.50 in pecuniary losses within 60 days of the date of receipt of this order. 3. Pay attorney’s fees to Complainant and her attorney $10,053.33 within 60 days of receipt by the agency of this Order. 4. Restore 30.5 hours of sick leave to Complainant’s sick leave balance within 60 days of the date of receipt of this order. 5. Require five (5) hours of EEO training to be attended by all managers and supervisors in the Agency’s facilities where the decisions affecting Complainant were made, covering an employee’s right to work in an environment free from discrimination or harassment. 6. Consider taking appropriate disciplinary action against the responsible management officials. 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 furnish documentation of their departure date(s). 7. The Agency shall immediately post a notice in accordance with the paragraph below. 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 Houston Detention Center in Houston, Texas 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), 9-18 (Nov. 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 June 9, 2011 Date 2 0720090046 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720090046