U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , a/k/a Tammy S.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0720130022 Hearing No. 540-2011-00143X Agency No. P-2010-0244 DECISION Following its May 6, 2013, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). In its final order, the Agency adopted, in part, the decision of an Equal Employment Opportunity Commission Administrative Judge (AJ) finding that it subjected Complainant to discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq. The Agency requests, however, that the Commission affirm its rejection of one aspect of the relief ordered by the AJ. 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 Correctional Officer at the Agency's Federal Correctional Complex facility in Florence, Colorado. On February 22, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (injury to left wrist) and in reprisal for prior protected EEO activity2 when: 1. on December 22-23, 2009, management placed Complainant in absent without leave (AWOL) status; 2. in March 2010, management failed to provide Complainant with a reasonable accommodation; 3. on April 22, 2010, management terminated Complainant from her position during her probationary period; 4. in an email dated December 10, 2009, an instructor accused Complainant of fabricating her injury; 5. on or about December 13, 2009, the Captain of Complainant's facility told Complainant to "watch her step," "listen to her senior officers," and let the December 10 email go; 6. one of Complainant's supervisors (S2) refused to meet with her on two occasions in November 2009; 7. S2 denied to the Captain that Complainant had requested leave to undergo surgery on December 18, 2009, and wrongfully placed her in AWOL status; 8. S2 withheld two temporary assignment of duty (TAD) letters from Complainant on December 23, 2009, and January 12, 2010; 9. S2 strongly advised Complainant not to sign the December 23, 2009 TAD on three separate occasions although failure to sign the TAD would have been grounds for termination; 10. On December 31, 2009, S2 told Complainant that she had to immediately sign a TAD although she had 30 days to make a decision; 11. On several occasions between November 19-21, 2009, and between January 1-21, 2010, S2 required Complainant to discuss her medical information in the presence of other employees; 12. On February 11, 2010, the injury compensation specialist (ICS) required Complainant to discuss her medical information in front of the warden's secretary; 13. Between August 16, 2009, and April 10, 2010, S2 assigned Complainant unfair work schedules and changed her schedule so that she would be assigned to work on days when she had doctor's appointments; 14. On December 28, 2009, and from January 9-27, 2010, Complainant was subjected to discriminatory comments by coworkers while she was assigned to work as a receptionist; and 15. On March 12, 2010, the workers' compensation coordinator told the human resources office not to assign Complainant to work alone because she would intentionally harm herself to further build her case.3 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 AJ. Complainant timely requested a hearing and the AJ held a hearing on September 17-18, 2012, and issued a decision on January 18, 2013. In her January 18, 2013 decision on liability, the AJ found that Complainant suffered an on-the-job injury to her left wrist on October 27, 2009, and has continuously worn a splint since that date. Complainant has also undergone a number of surgeries to her wrist and elbow. In November 2009, Complainant provided the Agency with medical documentation outlining temporary restrictions of no pushing, pulling, or lifting with her left arm. The restrictions were extended in a document provided to the Agency dated December 22, 2009, and according to documentation dated January 4, 2010, the restrictions were no longer temporary. Following repeated meetings with management officials, Complainant began working a temporary duty assignment as a front lobby officer on January 24, 2010. Complainant went out on leave beginning January 28, 2010, for surgery and subsequently began taking a prescribed narcotic for pain. On February 11, 2010, Complainant had the first of a series of meetings with management officials to discuss her restrictions upon her return to work and to find a temporary duty assignment commensurate with those restrictions. In a meeting on March 17, 2010, it was determined that because Complainant was unable to drive due to the side effects of the prescribed medications, management agreed to assign her to the same shift as her husband and that she would begin working this new shift on March 21, 2010. The AJ found that despite the outcome of the meeting and the agreement that Complainant would begin in her new temporary assignment on March 21, 2010, management contacted Complainant on the evening of March 17, 2010, instructing her to report to work. When Complainant did not report to work, management charged her as being AWOL on March 18 and 19, 2010. Complainant reported to work on March 21, 2010, as agreed to by management in the earlier meeting. By letter dated April 20, 2010, management informed Complainant that she was being terminated from her position, effective April 22, 2010, due to unsatisfactory conduct when she did not report to work on March 18 and 19, 2010. The AJ concluded that the Agency subjected Complainant to unlawful disability discrimination with respect to claim (2) when it failed to provide Complainant with a reasonable accommodation in March 2010. The AJ also found that the Agency subjected Complainant to unlawful disability discrimination with respect to claim (3) when it terminated her employment in April 2010. With respect to the basis of reprisal, the AJ found that Complainant failed to establish a prima facie case as a number of the incidents alleged occurred prior to her initial EEO counselor contact and she did not show that the management officials at issue were aware of her EEO activity. Finally, the AJ found that Complainant failed to establish that she was subjected to unlawful discrimination or harassment with respect to any of the remaining claims. By way of relief, the AJ ordered the Agency to: (1) reinstate Complainant into the position of correction officer and place her in the appropriate administrative leave status if she is unable to perform the essential functions of the position; (2) engage in the reasonable accommodation process to determine whether any vacant position exists into which Complainant can be reassigned; (3) compensate Complainant for all back pay and benefits due; (4) pay $18,000.00 in compensatory damages; (5) pay $82,339.00 in attorney's fees and $4,194.77 in costs; and (6) provide training and discipline for the responsible management officials. CONTENTIONS ON APPEAL On appeal, the Agency addresses a single aspect of the AJ's ordered relief. Specifically, the Agency requests that the Commission affirm its rejection of the AJ's order that as part of the interactive process for reasonable accommodation, it provide Complainant with a list of all vacant positions in the geographic area specified by Complainant on an ongoing basis for a period of 90 days. The Agency does not appeal the AJ's findings of discrimination nor any other aspect of ordered relief. Complainant also filed an appeal of the Agency's final order. Complainant's brief in support of her appeal was untimely, however, and the brief will therefore not be considered in the instant decision. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Initially, we note that the Agency has not appealed the AJ's finding of discrimination with respect to claims (2) and (3). As such, we affirm the AJ's finding of discrimination as to these claims. Further, as to the issue of remedies raised in the Agency's appeal, we find that the AJ did not abuse her discretion in ordering the Agency to provide Complainant with a list of all vacant positions in the geographic area specified by Complainant on an ongoing basis for a period of 90 days. The Agency is required to engage in the interactive process with Complainant in order to determine what reasonable accommodation, including the possibility of reassignment, is necessary. To establish entitlement to a reassignment, a complainant must show that a vacant, funded position existed during the relevant time period or was likely to open up. See EEOC Enforcement Guidance on Reasonable Accommodation, EEOC No. 915.002 at Question 24 (Oct. 17, 2002); Shimmin v. Dep't of Homeland Security, EEOC Appeal No. 0120072428 (June 4, 2009). Complainant can establish that vacant, funded positions exist by: (1) producing evidence of particular vacancies: or (2) showing that she is qualified to perform a job or jobs which exist at the agency, and there are trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (July 31, 2002). Here, the AJ determined that the Agency relevant time period for determining whether a vacant position exists is 90 days. We find no basis upon which to modify the AJ's order in this respect. Next, we find that the AJ erred as a matter of law with regard to the basis of reprisal. In so finding, we note that a request for reasonable accommodation of a disability constitutes protected activity under the Rehabilitation Act, as amended, 29 U.S.C. § 791 et seq. In particular, it is unlawful to coerce, intimidate, or threaten any individual who has exercised any right granted, such as requesting a reasonable accommodation, under the Rehabilitation Act. 29 C.F.R. § 1630.12. The record clearly shows that Complainant first requested reasonable accommodation of her disability in November 2009, and provided medical documentation to management outlining her restrictions at that time. Additionally, the record shows that the management officials at issue were aware of her request for reasonable accommodation. Therefore, we find that the AJ erred in determining that Complainant failed to establish a prima facie case of reprisal because she had not previously participated in the EEO process. We now turn to whether the events raised by Complainant constituted a hostile work environment. It is well-settled that harassment based on an individual's disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, a complainant must show that: (1) she is a qualified individual with a disability covered under the Rehabilitation Act and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). As to part (1), we find that it is not necessary to address the basis of disability as we have found that Complainant engaged in prior protected EEO activity in the form of requests for a reasonable accommodation. Next, the conduct alleged was clearly unwelcome and Complainant established part (2) of her prima facie case of harassment. Further, the harassment complained of was clearly based on Complainant's protected EEO activity. Here, the record shows that the actions alleged were directly related to her request for a reasonable accommodation. Specifically, the evidence shows that following her request, Agency officials accused her of lying about her injury and potentially harming herself to support her claims, pressured Complainant to accept assignments which violated her medical restrictions, and charged her with AWOL when she was undergoing surgery. Therefore, we find that Complainant has established part (3) of her prima facie case of harassment. Turning to part (4), we find that based on the evidence of record, hearing testimony, and the credibility determinations of the AJ, the record generally supports Complainant's version of the events alleged. The record shows that from the point that Complainant first requested a reasonable accommodation of her disability in November 2009, Agency management officials engaged in a series of harassing actions which led directly to her termination April 22, 2010. We find that these actions, taken as a whole, had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. We now turn to whether there is a basis for imputing liability to the Agency for management's actions. In Burlington Indus. v. Ellerth, 524 U.S. 742, 760-65 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807, (1998), the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. See EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, at 2, n. 7 (June 18, 1999). The standard of liability set forth in these decisions is premised on two principles: (1) an employer is responsible for the acts of its supervisors, and (2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment. In order to accommodate these principles, the Court held that an employer is always liable for a supervisor's harassment if it culminates in a tangible employment action. No affirmative defense is available in such cases. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, at 7. In the present case, we have already found that management officials' actions culminated in the tangible employment action of Complainant's termination. As such, we find that the Agency is liable for the hostile work environment based on retaliation created by the actions of management officials based on Complainant's protected EEO activity. We see no reason to alter any other findings in the remainder of the decision. We also specifically find that our additional finding of discrimination does not alter the compensatory damage award in this case given that the hostile work environment was intertwined with the damages from the findings of discrimination on the discrete incidents. CONCLUSION Accordingly, we MODIFY the Agency's final order and direct the Agency to comply with this decision and the Order herein. ORDER To the extent it has not already done so, the Agency shall take the following remedial actions: 1. Within 30 days of the date on which this decision becomes final, the Agency shall reinstate Complainant to the position of Correctional Officer. Prior to returning her to the position, the Agency shall engage with Complainant to determine what reasonable accommodations are necessary to perform the essential functions of the position. If it is determined that there are no accommodations available which would allow Complainant to perform the essential function of the Correctional Officer position, then the Agency shall place her in the appropriate administrative leave status no later than 35 days from the date this decision becomes final. The Agency shall also continue the interactive process to determine whether there exists a vacant position for which Complainant can perform the essential functions with or without a reasonable accommodation. As part of this process, the Agency may request, and Complainant shall provide, medical documentation to the extent necessary to determine Complainant's limitations. Because this process is ordered as a remedy for discrimination, the Agency shall pay the costs of any medical records submitted by Complainant during this process. Further, the Agency shall provide Complainant with a list of all vacant positions in the geographic area she specifies on an ongoing basis for a period of 90 days beginning no later than 35 days from the date this decision becomes final. If the parties identify a position for which Complainant can perform the essential functions, then the Agency shall make an unconditional offer of placement into the position. 2. Within 60 days of the date this decision becomes final, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits (if any) due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall receive back pay (with interest and benefits) for the two days she was placed on AWOL in March 2010 (after being denied a reasonable accommodation), and from the date she was discriminatorily terminated, April 22, 2010, until the date of her reinstatement. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. Complainant shall be paid an amount to compensate her for the tax consequences, if any, of a lump-sum wage payment according to proof to be provided by Complainant. 4. Within 60 days of the date on which this decision becomes final, the Agency shall pay Complainant attorney's fees in the amount of $82,339.00 and costs in the amount of $4,194.77. 5. Within 60 days of the date on which this decision becomes final, the Agency shall pay Complainant $18,000.00 in nonpecuniary, compensatory damages. 6. Within 60 days of the date on which this decision becomes final, the Agency shall provide training to responsible Agency employees regarding their responsibilities under EEO law, with particular focus on the Rehabilitation Act and management's responsibilities with regard to reasonable accommodation and retaliation. 7. Within 60 days of the date on which this decision becomes final, the Agency shall consider taking disciplinary action against responsible Agency employees found to have discriminated against Complainant. The Agency shall report its decision to the Commission. If the Agency decides to take disciplinary action, then it shall identify the action taken. If the Agency decides not to take disciplinary action, 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 of the Agency's decision regarding compensatory damages, including evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Federal Correctional Complex facility in Florence, Colorado copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 (M0815) 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 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, 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 (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. 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 Carlton M. Hadden, Director Office of Federal Operations __________________ Date 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 In her formal complaint, Complainant also alleged discrimination on the basis of sex, however, the AJ issued partial summary judgment finding no discrimination on this basis. Complainant has not challenged this finding of no discrimination and we therefore affirm the AJ's finding of no discrimination on the basis of sex. 3 Complainant also alleged that she was subjected to unlawful harassment when S2 made vulgar comments about her to another management official and stated that she had filed EEO complaints against previous employers. The AJ issued partial summary judgment on this claim and found no discrimination. Complainant has not challenged this finding of no discrimination and we therefore affirm the AJ's finding regarding these issues. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720130022 2 0720130022