Complainant, v. Joshua Gotbaum, Director, Pension Benefit Guaranty Corporation, Agency. Appeal No. 0720130001 Hearing No. 570-2011-00537X Agency No. FC-019-2010 DECISION In conjunction with its September 26, 2012 final order, the Agency filed an appeal of an EEOC Administrative Judge's (AJ) finding that it engaged in discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. Complainant filed an appeal from the Agency's final order on October 25, 2012. 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 a GS-12 Accountant in the Agency's Collections and Compliance Division (CCD) of the Financial Operations Department (FOD) located in Washington, D.C. During the relevant time, Person A, Financial Program Manager in CCD FOD, was Complainant's first level supervisor. Person B, the Director of FOD, was Complainant's second level supervisor. On August 25, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and in reprisal for protected EEO activity when: 1. On March 19, 2010, Complainant's supervisor made an "unnecessary comment" about sick leave for allergies Complainant took on March 18, 2010; 2. On April 9, 2010, Complainant's supervisor required her to provide "a list of items" she would be working on before approving her request to work from home on April 12-13, 2010, during the scheduled Nuclear Security Summit in Washington, DC; 3. On April 14, 2010, Complainant's supervisor denied Complainant's request for flexiplace submitted three weeks earlier, stating she would be placed on an indefinite waiting list because the department exceeded the 50% requirement for flexiplace. Two Caucasian employees were placed on permanent flexiplace "after [Complainant's] request;" 4. On April 15, 2010, Complainant's supervisor responded to her April 1, 2010 request to take a class on "U.S. Standard General Ledger," questioned her concerning the class, tried to convince her she did not need it, and then "decided to sign the form because other minorities with EEO cases wanted the class;" 5. On April 16, 2010, Complainant requested reconsideration of her flexiplace request during a meeting with her supervisor and "Labor Relations and Flexiplace Coordinator personnel." On May 4, 2010, Complainant learned that her supervisor would not grant her request; 6. On April 27, 2010, and April 28, 2010, Complainant's supervisor denied "emergency flexiplace" she requested because her vehicle was in the repair shop and a second vehicle would not start, although a co-worker was permitted to work from home an entire week to make repairs to her home caused by the winter storm, and to take care of an ex-husband who was very ill; 7. On May 12, 2010, while Complainant was meeting with the department director concerning the denial of her flexiplace request, her supervisor stood listening at the department director's open door and looked at Complainant in an intimidating manner; 8. On May 12, 2010, in the afternoon, Complainant's supervisor informed her that her flexiplace request was granted; however, her supervisor imposed "harsh requirements" not asked of Caucasian employees such as creating a work plan, and her supervisor made reference to a deceased employee who had an EEO case which made Complainant uncomfortable; 9. On May 20 and 21, 2010, Complainant's supervisor refused to sign a form indicating that Complainant had received CPA study materials; 10. On June 1, 2010, Complainant's supervisor phoned her at home while she was on flexiplace just to "say hi;" and 11. On June 3, 2010, when Complainant called in to say she would be late due to a personal emergency, her supervisor questioned her about the nature of the emergency, and later wrote "unexplained personal emergency" on Complainant's leave slip. 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. The case was originally assigned to the EEOC's Washington Field Office and on November 11, 2011, the Commission informed the parties that the case was transferred to the EEOC's New Orleans Field Office. On November 28, 2011, the AJ issued an Acknowledgment and Order acknowledging Complainant's request for a hearing. The Acknowledgment and Order informed the parties that "[f]ailure to follow this Order or other orders of the Administrative Judge may result in sanctions pursuant to 29 C.F.R. § 1614.109(f)(3)." The Order advised that the AJ may draw an adverse inference; consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; exclude evidence offered; issue a decision fully or partially in favor of the opposing party; or take such other actions as appropriate. Thereafter, the Agency filed a Motion for Summary Judgment and Complainant filed a Response to Agency's Motion for Summary Judgment. On May 8, 2012, the AJ advised that he was granting the Agency's motion for summary judgment as to issues (1), (2), (4), part of issue (6), (7), (8), (9), (10), and (11). The AJ advised the parties that there were issues of material fact and questions of credibility as to issues (3) and (5) that required a hearing. In addition, the AJ noted that a portion of issue (6) also required a hearing, concerning Complainant's claim that on April 27, 2010, she requested "emergency flexiplace" for use on April 28, 2010. The AJ clarified that the portion of issue (6) in which Complainant requested "emergency flexiplace" on April 27, 2010, for use on April 27, 2010, would be subject to summary judgment. On May 21, 2012, the AJ issued a Hearing Order and set June 6, 2012, as the hearing date. The Hearing Order required the Agency to arrange for the services of a court reporter to transcribe the hearing and to notify the court reporter that the transcript of the hearing shall be sent directly to the AJ within two weeks of the hearing. The Hearing Order also stated that failure to comply with any of the AJ's orders may lead to sanctions, including the possible dismissal of the complaint, pursuant to 29 C.F.R. §§ 1614.107(a)(7); 109(b); 109(f)(3). The AJ held a hearing on June 6 - 7 and 19, 2012, on whether Complainant was subjected to discrimination and/or hostile work environment based on race (African American), color (black), and in reprisal for prior protected EEO activity when: 1. On April 14, 2010, Complainant's supervisor denied Complainant's request for flexiplace submitted three weeks earlier, stating she would be placed on an indefinite waiting list because the department exceeded the 50% requirement for flexiplace. Two Caucasian employees were placed on permanent flexiplace "after [Complainant's] request;" 2. On April 16, 2010, Complainant requested reconsideration of her flexiplace request during a meeting with her supervisor and "Labor Relations and Flexiplace Coordinator personnel." On May 4, 2010, Complainant learned that her supervisor would not grant her request; and 3. On April 27, 2010, Complainant's supervisor denied "emergency flexiplace" she requested for April 28, 2010, because her vehicle was in the repair shop and a second vehicle would not start, although a coworker was permitted to work from home an entire week to make repairs to her home caused by the winter storm and take care of an ex-husband who was very ill.1 After the close of the hearing on June 19, 2012, Complainant discovered that the Agency had obtained a draft transcript of the first two days of the hearing. The AJ advised the parties that he would be considering sanctions for the Agency obtaining a draft of the transcript without providing a similar copy to Complainant and her representative. On June 26, 2012, Complainant submitted a request for sanctions based upon the Agency's actions of obtaining a draft copy of the two prior days of the hearing without providing a copy to Complainant. Also on June 26, 2012, the Agency filed its response to Complainant's request for sanctions. On June 29, 2012, the AJ issued an oral bench decision regarding the three issues subject to a hearing. Initially, the AJ addressed the issue of sanctioning the Agency for failure to provide Complainant a copy of the rough draft of the hearing transcript it received. The AJ noted that Complainant asserted the Agency failed to comply with the Commission's orders in that the Hearing Order advised that copies of the transcript would be sent to both parties. The AJ noted Complainant also stated that the EEOC's Management Directive 110 discusses providing copies of the transcript to both parties. The AJ noted that the Agency argued that it did not violate an explicit EEOC rule or AJ Order or instruction in not providing Complainant a copy of the partial rough draft it received. The AJ noted the Agency also argued that Complainant was not prejudiced as a result of the Agency's actions. The Agency stated that Complainant or her representative were present for the entirety of the first two days of the hearing and had the benefit of hearing and taking notes on the testimony. The AJ noted the Agency stated that the majority of the examinations and cross-examinations had already been conducted and that thus, the Agency could not have gained any significant advantage from reviewing the rough draft transcript. The Agency claimed that since only a portion of Complainant's cross-examination, the testimony of one of Complainant's witnesses, and closing arguments remained, it could have obtained little tactical advantage. The AJ noted the Agency stated it did not cite to the rough draft transcript in closing arguments or use it to complete Complainant's cross-examination. The AJ noted the Agency claimed it did not delay or stall the hearing process, it was a single act, the Agency did not have any indication that its action was inappropriate, and the action did not affect the integrity of the hearing process. The AJ stated that while the Agency was "technically correct" that there was no specific order not to obtain draft copies of the transcript, it certainly "violated the spirit" of the Commission's Order that transcripts be provided to all the parties. The AJ found it was entirely foreseeable that the Agency could have gained significant advantage by obtaining draft transcripts of the hearing before the conclusion of the hearing. The AJ noted that when Complainant's cross-examination resumed on June 19, 2012, the Agency questioned Complainant regarding whether she had asked Person A for emergency flexiplace on April 27, 2010. The AJ noted that on June 6 - 7, 2012, testimony of Complainant and Person A had already been extracted on this issue. The AJ stated that there was "a significant issue of credibility" as to whether the Agency properly denied Complainant's request for flexiplace or whether she asked for flexiplace at all for April 28, 2010. The AJ noted that the Agency provided no explanation for why counsel obtained drafts of the transcript. The AJ determined that the inference drawn was that the Agency's counsel was trying to obtain an unfair tactical advantage. The AJ found the degree of culpability was substantial. The AJ found that to argue that there was no explicit order specifically disallowing draft transcripts is "to parse the [C]ommission's orders too finely." The AJ cited the clear intent of allowing transcripts to be issued at the same time was so that parties may review the record on "equal footing." The AJ stated the only reason that the Agency would seek to obtain draft transcripts was so that they could prepare for the examination of witnesses. The AJ found this provided the Agency with an unfair advantage. The AJ noted the Agency did not move for permission to use the draft hearing transcript from the Commission. In considering the range of sanctions available, the AJ found that drawing an adverse inference or exclusion of evidence was not appropriate. Specifically, the AJ found that drawing an adverse inference would not necessarily prevent or preclude the Agency from obtaining draft transcripts in the future. Rather, the AJ stated that since cross-examination of Complainant continued after the Agency obtained the draft transcripts and there was a genuine issue of credibility and material fact as to whether Complainant asked Person A to use emergency flexiplace on April 27, 2010, this should be the subject for sanctions. The AJ noted that Complainant's testimony that on April 27, 2010, she asked for and was disapproved emergency flexiplace for April 28, 2010, was steadfast. The AJ noted that Person A maintained that Complainant never asked for emergency flexiplace on April 27, 2010, to use on April 28, 2010. The AJ determined the appropriate sanction was to issue a decision in favor of Complainant as to whether the Agency improperly denied her request for emergency flexiplace on April 27, 2010, for use on April 28, 2010, on the basis of race. With regard to original issues (3) and (5), the AJ found that at the time of Complainant's flexiplace application, there were 13 nonmanagerial bargaining unit employees in CCD. The AJ noted that the collective bargaining agreement (CBA) recognized formal or permanent flexiplace and also episodic or intermittent flexiplace. The AJ found that Section 3 of Article 20 of the CBA stated that under formal flexiplace, up to 50% of all bargaining unit employees as an appropriate group were eligible to participate in a formal or permanent flexiplace program if they met the specified criteria. The AJ stated that Coworker 1 submitted her flexiplace program application on March 22, 2010. The AJ noted that Complainant submitted her flexiplace program application on March 23, 2010. The AJ found that Coworker 2, who initially applied to participate in the flexiplace program on January 7, 2008, submitted an updated flexiplace application on April 5, 2010. The AJ noted that Person A approved Complainant's flexiplace application approximately six weeks after she applied. The AJ assumed Complainant established a prima facie case of race and color discrimination with regard to issues (3) and (5). The AJ found the Agency articulated a legitimate, nondiscriminatory reason for its conduct. Specifically, the AJ noted that Person A concluded since he had two employees leaving the division in April 2010, already had four employees in the flexiplace program, and that once Coworker 1, who applied before Complainant, was approved, he had reached the maximum 50% level and that under the CBA he did not have to approve Complainant's application. The AJ noted that Person A stated he felt that he could not exceed the 50% limit, although it was permitted under the CBA, because he had some technical issues and some communication problems with some people on flexiplace. The AJ noted that as an example, Person A cited some people had difficulty printing reports when they worked at home and that a lot of the work relied on being able to print a report and put notations on it for the next person in the review chain. The AJ noted that Person A also felt that he did not have very good tools for monitoring the work and felt that more training was needed to manage the people on telework. The AJ also stated that the month of April was one of the heaviest workload months for CCD. The AJ noted that according to Person A, those were the reasons why he decided to place Complainant and another employee on the waitlist. The AJ also noted that two of the employees that Person A had already approved to be on flexiplace had prior EEO activity. In addition, the AJ noted that one of the employees that was already approved for flexiplace before Complainant was of the same race and color as Complainant. The AJ noted that Complainant argued that the Agency's interpretation of Article 20 and those employees that the Agency stated counted towards the 50% requirement was absurd and thus, she claimed Person A was interpreting Article 20 in such a way to show pretext for illegal discrimination. The AJ found that according to the CBA, the 50% requirement was for those individuals eligible to participate in the formal or permanent flexiplace program. The AJ stated that Person A's interpretation and reading of Article 20, as applying to those employees working episodic or intermittent flexiplace, would not comport with what appears to be a reasonable reading of that agreement. The AJ noted that one of the employees that Person A counted towards the 50% requirement was Coworker 2, even though Coworker 2 was on episodic or intermittent flexiplace. The AJ concluded that while he did not interpret Article 20 the same way Person A interpreted it, it was entirely possible that Person A could have read it in the manner in which he testified he did. The AJ also stated it was entirely reasonable for Person A to consider two employees leaving the division within the month, that those two employees should have been excluded from the 50% requirement, and that Person A considered Coworker 2 as a participant in the flexiplace program. Thus, the AJ concluded that Complainant failed to show that Person A intentionally misread Article 20 to mask illegal discrimination. With regard to her claim of reprisal, the AJ found Complainant did not make initial contact with an EEO Counselor until after the issues raised at the hearing. The AJ noted that Complainant claimed that she engaged in protected EEO activity when she met with Person A and the Flexiplace Coordinator in March 2010, to discuss her request for flexiplace. The AJ noted that the meeting Complainant referenced actually occurred on April 16, 2010, and Person A denied her request following that meeting. With regard to Complainant's contention, the AJ found that Complainant did not establish that she opposed unlawful employment discrimination during that meeting. The AJ noted that Complainant stated she mentioned that two other White employees, Coworker 1 and Coworker 2, had been approved for flexiplace and that she had been disapproved. However, the AJ noted that during the hearing, Complainant admitted that she did not mention race during the meeting, but rather, she felt that race had been inferred. The AJ found that an inference was not enough and that Complainant's opposition must be more explicit to conclude she opposed unlawful employment discrimination. As to Complainant's hostile work environment claim, the AJ found that Complainant failed to establish that she was harassed on a protected basis. Specifically, the AJ determined Complainant did not show there was a connection between her protected classes and the actions at issue. As relief for the finding with regard to the denial to work flexiplace on April 28, 2010, the AJ ordered the Agency to pay Complainant $1,000 in nonpecuniary, compensatory damages, pay Complainant $76 in pecuniary damages, and post a Notice at its Washington, D.C. location alerting employees of their right to be free from unlawful discrimination with an assurance that employees will not be discriminated against on the bases of their race and color. On August 6, 2012, the AJ issued a written Decision Without a Hearing on the issues he identified as appropriate for summary judgment (original issues 1, 2, 4, part of 6, 7, 8, 9, 10, and 11). The AJ found with regard to issues 1, 2, 4, part of 6, 7, and 8 that Complainant failed to establish a prima facie case of reprisal. With regard to issues 9, 10, and 11, the AJ assumed Complainant established a prima facie case of retaliation under a hostile work environment theory and/or disparate treatment theory. The AJ further held that Complainant failed to establish that the Agency subjected her to a hostile work environment due to any statutorily-protected classes. Also, the AJ determined with respect to her disparate treatment and retaliation claims, Complainant failed to sustain her burden of proving by a preponderance of the evidence that the Agency's legitimate, nondiscriminatory reasons were a pretext for discrimination based on her race or in reprisal for prior protected EEO activity. Thereafter, on August 14, 2012, the AJ issued an Order Entering Judgment. The AJ noted that as a result of the Bench Decision and the Decision Without hearing dated August 6, 2012, judgment was entered partially in favor of the Agency and partially in favor of Complainant. The Agency subsequently issued a final order on September 26, 2012, partially implementing the AJ's August 14, 2012 Order Entering Judgment. The Agency stated it would fully implement that portion of the Order granting the Agency's Motion for Summary Judgment as to the original issues 1, 2, 4, part of six, 7, 8, 9, 10, and 11. In addition, the Agency stated it would fully implement that portion of the Order finding Complainant failed to establish that the Agency's actions were a pretext for discrimination with regard to hearing issues 1 and 2 (original issues 3 and 5). However, the Agency stated it would not implement that portion of the Order with regard to hearing issue 3 wherein the AJ sanctioned the Agency with a finding that the Agency discriminated against Complainant on the basis of race when it denied Complainant's April 27, 2010 request for emergency flexi-place for use on April 28, 2010. CONTENTIONS ON APPEAL On appeal, the Agency argues that the AJ's imposition of sanctions should be vacated because it constitutes an unwarranted abuse of discretion. The Agency argues that the AJ's issuance of sanctions was improper because the Agency did not violate a clear order or instruction from the AJ. The Agency states that nothing in the Commission's regulations, MD-110, or in the AJ's Hearing Order directs the parties with respect to a partial hearing transcript, except that the Hearing Order provided only that the Agency shall notify the court reporter to send the transcript of the hearing directly to the AJ within two weeks of the hearing. The Agency argues that finding a violation based solely on the "spirit of the [C]ommission's order" is insufficient to justify the imposition of sanctions. Additionally, the Agency argues the AJ abused his discretion because he failed to give the Agency sufficient notice of any forthcoming sanction and failed to provide the Agency an opportunity to respond. The Agency notes that during the last day of the hearing, prior to closing arguments, Complainant's representative informed the AJ that the Agency had received a rough draft of the first two days of the hearing. The Agency notes that the AJ stated he "[didn't] really know that [the transcript] could have gained you much in the way of a tactical advantage." The Agency notes the AJ stated he "[didn't] necessarily see any reason to sanction the Agency" but told Complainant's representative that he could research the matter and submit something to the AJ regarding the matter. The Agency argues the AJ's nonchalant reaction did not constitute the required basic "notice" as to the type of sanction that might be imposed. In addition, the Agency states the AJ permitted the parties only to submit simultaneous briefs regarding the "issue," thus denying the Agency any proper opportunity to respond to Complainant's argument for sanction. The Agency also argues that the AJ's sanction was excessive and unrelated to the conduct at issue. The Agency notes that the AJ stated there was an undetermined question of fact as to whether Complainant ever even asked for "emergency flexiplace." The Agency states that evidence must actually support a Complainant's claims before the Commission will uphold an AJ's finding of discrimination as a sanction. The Agency claims that Complainant failed to establish that she even requested "emergency flexiplace" on April 27, 2010, for April 28, 2010. The Agency also notes that prior to the hearing, the AJ granted summary judgment to the Agency on Complainant's claim regarding her request to flexiplace on April 27 for the same car trouble. The Agency also argues that its conduct in reviewing a partial draft transcript does not warrant a sanction. The Agency states its review of the partial transcript allowed Agency counsel, two of whom were trying their first hearing, to assess their performance. In addition, the Agency argues the AJ abused his discretion because the record does not support the compensatory damages award. The Agency states the AJ's award to Complainant of $1,000 under the guise of "compensatory damages," was punitive and capricious. The Agency claims that Complainant failed to demonstrate any entitlement to compensatory damages because she failed to prove that she suffered any harm related to her April 28 "emergency flexiplace" claim. The Agency argues that Complainant put forth no specific testimony regarding any harm she experienced as a result of not flexiplacing on April 28, 2010. Rather, the Agency states that Complainant provided only general testimony about stress from alleged unfair treatment, regarding all her claims. Finally, the Agency argues that if the AJ's sanction of a finding of discrimination is overturned, then the underlying allegations and facts must be reviewed to determine whether Complainant met her burden of proof. The Agency states that Complainant failed to establish a prima facie case of discrimination. Further, it claims even if she could establish a prima facie case, she would have failed to overcome the Agency's legitimate, nondiscriminatory reasons for its actions. On appeal, Complainant states she is appealing the portion of the Agency's decision that found the Agency did not discriminate against her based on race, color, or retaliation when it denied her request for permanent, regular, recurring flexiplace that would allow her to work from home on a weekly basis. Complainant claims the AJ improperly limited testimony concerning Person A's attitude and motives. Specifically, Complainant states that at the hearing she sought to elicit testimony to show that Person A treated African American, black employees differently compared to Caucasian, white employees in early April 2010, when the federal government was encouraging agencies in downtown Washington, D.C. to allow employees to work from home due to expected traffic congestion in connection with an international Nuclear Summit Conference. However, Complainant notes the AJ refused to allow such testimony. Complainant claims Person A's attitudes concerning race and color at the time during the April 2010 Nuclear Summit demonstrates a discriminatory attitude based on race and color and that this applies to his denial of Complainant's request for permanent flexiplace. Alternatively, Complainant claims the case should be remanded to hear Complainant's full testimony on this issue. In addition, Complainant notes that despite the stipulation the parties agreed to that Coworker 2 participated in only the episodic, intermittent flexiplace program before April 2010, the clear language of the CBA, and Person A's own testimony that he understood the 50% cap to be based on the proportion of employees approved for permanent, regular flexiplace out of the total number of bargaining unit employees, the AJ found Person A did not have such an understanding. Complainant argues that the Agency has not articulated a legitimate, nondiscriminatory reason for denying her permanent, regular flexiplace. Rather, Complainant argues that the purported reason cited is contrary to stipulations, contrary to the record, and contrary to the testimony of Person A. Thus, Complainant argues that since the Agency did not articulate a legitimate, nondiscriminatory reason, the reason for its actions is discrimination. With regard to her claim of retaliation, Complainant cites EEOC Directive 915.002, "Retaliation" and notes that a complaint about an employment practice constitutes protected opposition "if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination." Complainant reiterates her argument that during the April 16, 2010 meeting, she complained she was being treated unfairly and "different" compared to Coworker 1 and Coworker 2, who she notes were Caucasian, and claims this was sufficient to constitute opposition. Moreover, Complainant claims the AJ's sanction should not be limited solely to the issue of the denial of flexiplace on April 28, 2010. Rather, Complainant states that the Agency used the improper transcript to question Complainant extensively about the April 16, 2010 meeting with Person A and the Flexiplace Coordinator. Thus, Complainant argues the Agency improperly used the transcript to its advantage with regard to the issue of denial of permanent, regular flexiplace and should be sanctioned by a default judgment on that issue. In conclusion, Complainant states that the Commission should find the Agency discriminated and retaliated against Complainant when it denied her permanent, regular flexiplace. Complainant also states that the Commission should affirm the AJ's sanction default judgment and damages awarded. She also argues that the Commission should order the sanction of default judgment with respect to her other claims of denial of permanent flexiplace and increase the amount of damages for those other claims. ANALYSIS AND FINDINGS At the outset, we note Complainant does not challenge the Agency's finding of no discrimination under summary judgment with regard to the original issues 1, 2, 4, part of 6, 7, 8, 9, 10, and 11. Thus, we will not address the propriety of the Agency's finding of no discrimination with regard to those issues. 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). Original issues (3) and (5) At the outset, we reject Complainant's contention that the AJ improperly limited testimony concerning Person A's attitude and motives. Specifically, Complainant stated that at the hearing she sought to elicit testimony to show that Person A treated African American, black employees differently compared to Caucasian, white employees in early April 2010, when the federal government was encouraging agencies in downtown Washington, D.C. to allow employees to work from home due to expected traffic congestion in connection with an international Nuclear Summit Conference. We note that the AJ had already granted summary judgment on the original issue (2) concerning Person A's treatment of Complainant with regard to her request to work from home on April 12 - 13, 2010, during the Nuclear Security Summit. Thus, we find nothing improper in the AJ limiting testimony on this issue. Upon review of the record, we find substantial evidence supports the AJ's conclusion that the Agency articulated legitimate, nondiscriminatory reasons for denying Complainant permanent, regular flexiplace. Specifically, Person A stated he denied Complainant's request for permanent flexiplace because he felt that he could not exceed the 50% limit, although it was permitted under the CBA, because he had some technical issues and some communication problems with some people on flexiplace. Moreover, the record showed that April was one of the heaviest workload months for CCD. Person A stated for those reasons he decided to place Complainant and another employee on the waitlist. Complainant correctly notes that one of the employees that Person A counted towards the 50% requirement, was Coworker 2, even though Coworker 2 was on episodic or intermittent flexiplace. However, we find that substantial evidence supports the AJ's conclusion that it was entirely possible that Person A could have read the 50% requirement in the manner in which he testified he did. Moreover, we find it was reasonable for Person A to consider two employees leaving the division within the month, to exclude those two employees from the 50% requirement, and for Person A to consider Coworker 2 as a participant in the flexiplace program. We find that Complainant failed to show that Person A intentionally misread Article 20 to mask illegal discrimination. With regard to her claim of retaliation, we find the AJ properly determined that Complainant did not engage in protected EEO activity until after the incidents at issue. Despite her contentions that the April 16, 2010 meeting constituted protected opposition, we note that the Flexiplace Coordinator testified that there was no discussion about race at the April 16, 2010 meeting. Person A testified that he did not recall Complainant stating at the meeting that White employees who applied after her were approved. During her deposition, Complainant stated that she did not mention race as an issue in the April 16, 2010 meeting. In addition, during the hearing, Complainant admitted she did not mention race during the meeting. Thus, we find Complainant did not explicitly or implicitly communicate a belief that her exclusion from flexiplace constituted unlawful employment discrimination. Even assuming for the sake of argument that Complainant had engaged in prior protected EEO activity and had established a prima facie case of retaliation, we still find that Complainant has not shown that the Agency's reasons for actions in these claims were a pretext for retaliation. Finally, we find Complainant failed to establish that she was subjected to a hostile work environment based upon any of her protected classes. Sanction The Commission's regulations and guidance afford broad authority to AJs for the conduct of hearings. 29 C.F.R. §1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 7, § III(D) (Nov. 9, 1999). An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). Our regulations provide that where a party fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. §1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. An AJ must first issue a Notice to Show Cause to the non-complying party. EEO MD-110, Chap. 7, § III(D), n. 6; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000). In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree, EEOC Appeal No. 07A00015; Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission has emphasized that the purpose of a sanction is to deter the underlying conduct of the non-complying party. See Barbour v. U. S. Postal Service, EEOC Appeal No. 07A30133 (June 16, 2005). The factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process. Gray, EEOC Appeal No. 07A50030; Voysest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005). We find that the AJ's issuance of a sanction in the form of the dismissal of Complainant's hearing request was not an abuse of discretion, and was narrowly tailored to the actions of the Agency. In the present case, we find the AJ properly determined that the Agency violated "the spirit of the [C]ommission's order" that transcripts be provided to both parties to afford them an "equal footing." We consider the Agency's actions in securing a draft transcript after the first two days of the hearing and not providing a copy to Complainant to constitute deceptive behavior which created the inference that the Agency was trying to obtain an unfair tactical advantage during the hearing. We find there was no right for the Agency to have early access to the hearing transcript and we note the Agency does not assert that it had a right to early access to the hearing transcript without providing a copy to Complainant's representative. Regarding the factors set forth in Gray for determining the appropriateness of the sanction, we find the nature of the non-compliance to be egregious and note the Agency did not provide an explanation to the AJ as to why it obtained the draft transcript. While the Agency argues for the first time on appeal that obtaining the draft transcript allowed Agency counsel, two of whom were trying their first hearing, to assess their performance, we find this after the fact explanation does not constitute good cause for its actions. In addition, we find a significant prejudicial effect from the Agency obtaining the rough draft transcript in that it could have been used to afford the Agency an unfair advantage in preparing for the examination of key witnesses. Finally, we find the effect on the integrity of the EEO process to be substantial. We note that the Agency argues the AJ did not provide sufficient notice of any forthcoming sanction and failed to provide the Agency an opportunity to respond. Under our decision in Campbell, Jr. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112704 (October 21, 2011) (citing Council v. Dep't of Veterans Affairs, EEOC Appeal No. 0120080321 (April 9, 2010)), we note that we have previously found that the notice given in the Acknowledgment and Order of the possibility of sanctions may function as the equivalent of a Notice to Show Cause in an instance such as this. In addition, in the present case, we not that the Hearing Order also specified that failure to comply with any of the AJ's orders may lead to sanctions, including the possible dismissal of the complaint, pursuant to 29 C.F.R. §§ 1614.107(a)(7); 109(b); 109(f)(3). Furthermore, the record reveals that the AJ afforded both the Agency and Complainant the opportunity to brief the issue of whether the Agency should be sanctioned for failing to provide Complainant a copy of the draft transcript. The record shows that Complainant and the Agency both provided responses to the AJ on June 26, 2012. Moreover, despite Complainant's contention that the sanction be extended to also include a default judgment as to hearing issues (1) and (2), we decline to do this. Rather, we find the sanction was narrowly tailored to the actions of the Agency. After deciding to issue a default judgment for a complainant, the Commission needs to determine if there is evidence that establishes a complainant's right to relief. One way to show a right to relief is to establish the elements of a prima facie case. See Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052 (September 25, 2009); Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005). We find Complainant was denied the opportunity to work "emergency flexiplace" on April 28, 2010, while a Caucasian, white employee, Coworker 2, was afforded the opportunity to work episodic flexiplace to make repairs to her home. These facts establish a prima facie case of race and color discrimination and this is sufficient to support a conclusion, by default judgment, that Complainant is entitled to relief in this case.2 Compensatory Damages Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for post-Act pecuniary losses, and for nonpecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. See West v. Gibson, 527 U.S. 212 (1999). In this regard, the Commission has authority to award such damages in the administrative process. Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. To receive an award of compensatory damages, complainant must demonstrate that he or she has been harmed as a result of the agency's discriminatory action, the extent, nature and severity of the harm and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 11, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) ("Guidance"). At the outset, we find the AJ properly awarded Complainant $76 in pecuniary damages. Specifically, the record shows that Complainant rented a vehicle to use to travel to and from work on April 28, 2010. The record contains a receipt of $76 for her rental car fee. While Complainant requested other pecuniary losses, we find the AJ properly determined there was no documentary or receipts provided for any additional pecuniary losses. Nonpecuniary damages are available to compensate an injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because complainant is a victim of discrimination. Guidance at 5. The existence, nature, and severity of emotional harm must be proved. Id. We note that for a proper award of nonpecuniary damages, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). In Carle v. Dep't of the Navy, the Commission explained that evidence of nonpecuniary damages could include a statement by complainant explaining how she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. However, evidence from a health care provider is not a mandatory pre-requisite to establishing entitlement to nonpecuniary damages. Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (September 19, 1996). At the hearing, Complainant testified that the Agency's actions caused her suffered stress and difficulty sleeping. After careful consideration of the evidence of record, we find an award of $1,000 for nonpecuniary, compensatory damages by the AJ was appropriate. This amount takes into consideration the severity of the harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Lee, Jr. v. U.S. Postal Service, EEOC Appeal No. 0120091395 (Apr. 15, 2009) (award of $1,000 in nonpecuniary damages when as a result of a denial of a requested schedule change, complainant suffered stress and had difficulty sleeping). Accordingly, we conclude that an award of $1,000 will adequately compensate Complainant for the harm she suffered as a result of the Agency's actions. CONCLUSION Accordingly, the Agency's finding of no discrimination with regard to original issues 3 and 5 is AFFIRMED. The Agency's finding of no race and color discrimination with regard to the denial of flexiplace on April 28, 2010 (part of original issue 6), is REVERSED and we REMAND the matter for compliance with the Order herein. ORDER To the extent it has not already done so, the Agency shall take the following actions: 1. Within 60 days of the date this decision becomes final, pay Complainant $1,000 in nonpecuniary, compensatory damages. 2. Within 60 days of the date this decision becomes final, pay Complainant $76 in pecuniary, compensatory damages 3. Within 180 days of the date this decision becomes final, provide training to Person A with regard to the prohibitions against discrimination under Title VII. This training shall be conducted by qualified EEO personnel. 4. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against Person A for discriminating against Complainant and any other Agency employees responsible for the discrimination perpetrated against Complainant. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. 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 Washington, D.C. 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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 October 9, 2015 __________________ Date 1 The AJ renumbered the remaining three issues that were the subject of the hearing. While the three issues were pending a hearing, the AJ allowed Complainant to add color as a basis. 2 We find the AJ's issuance of summary judgment in the Agency's favor regarding the denial of flexiplace for Complainant on April 27, 2010, does not preclude us from upholding the AJ's decision finding discrimination for the denial of flexiplace on April 28, 2010. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720130001 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720130001