Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0720130027 Hearing No. 420-2010-00I98X Agency No. ATL-10-0254 DECISION Following its June 20, 2013, 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 rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. BACKGROUND During the relevant time, Complainant worked as a Service Representative Trainee, GS-7, at the Agency's Field Office in Dothan, Alabama. Complainant began his two-year probationary period in April 2009. During the first year, he was subject to a new hire trainee performance appraisal system based on two elements: (1) engages in learning and (2) interpersonal skills. Employees who were not successful in either element could be terminated. Following his hiring, Complainant attended eight weeks of training in Gulfport, Mississippi. Upon his return to Dothan in July 2009, Complainant was assigned a mentor to provide him with on-the-job training. His October 2009 appraisal reflected "successful contribution" and no negative comments were made regarding the two appraisal elements. The following month, Complainant requested, and received, a new mentor. Complainant's mentor reviewed all of Complainant's work and interacted with him on practically a daily basis. The mentor found Complainant to be intelligent, cordial, and professional. Moreover, the mentor found that Complainant responded appropriately when his mistakes were pointed out. In December 2009, Complainant had an "optional performance discussion" with his first-line supervisor, the Operations Supervisor. Regarding element (1) ("engages in learning"), the Operations Supervisor observed that Complainant failed to take notes as recommended. The Operations Supervisor believed that Complainant's error rate was due to a lack of reliance on reference material. According to the Operations Supervisor, Complainant was not "receptive to constructive criticism/feedback." As for element (2) ("interpersonal skills"), Complainant was found to respond defensively to feedback regarding his errors and did not exhibit a positive relationship within the work unit. Complainant's mentor was not consulted for the discussion. Complainant refused to sign the performance discussion. Believing he was being subjected to unlawful discrimination, Complainant spoke with a union representative who provided him with EEO information. The Operations Supervisor observed Complainant's conversation with the union representative. On January 6, 2010, Complainant contacted and EEO Counselor. A few days later, the Operations Supervisor met with Complainant for another performance discussion. The Operations Supervisor found that Complainant was not fully meeting expectations in either element (1) or (2). On January 11, 2010, Complainant was notified that he was placed on a Training Assistance Plan (TAP). On February 8, 2010, Complainant filed a formal EEO complaint alleging he had not been trained properly and was subjected to ongoing harassment.1 Approximately two weeks later, Complainant learned of his termination. Believing the termination from his Service Representative position was retaliatory, Complainant contacted the Agency's EEO office and requested the issue be added to his pending EEO complaint. At the conclusion of the investigation, regarding the termination claim, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing2 and the AJ held a hearing on October 16, 2012, and issued a decision on May 7, 2013. The AJ found that Complainant established a prima facie case of reprisal. Specifically, the AJ found that Complainant had filed an EEO complaint, management was aware of his activity, and within a month he was terminated. The Agency's proffered legitimate, non-discriminatory reason was that Complainant failed to meet the standards of his probationary performance plan. The AJ, however, found evidence of pretext in that Complainant was successful in his October 2009 rating, did not receive any negative documentation in November 2009, and his mentor did not report any performance problems. Moreover, even though the mentor was in the best position to observe Complainant, she was not consulted about his performance for the December review. The AJ also noted that on the day of the optional review, Complainant was observed speaking to a union official known by the Operational Supervisor to assist employees with EEO complaints; the same day Complainant contacted the EEO office he received the negative midyear review; soon after the Operational Supervisor was informed of Complainant's EEO counselor contact, he placed Complainant on a TAP; and approximately two weeks after filing his formal EEO complaint, Complainant was terminated. Therefore, the AJ found that, more likely than not, Complainant was terminated in retaliation for having filed an EEO complaint. The AJ awarded Complainant back pay, with interest, from January 6, 2010 until the date of the decision. Based upon Complainant's mental anguish, headaches, anxiety, stroke sensations, and acid reflux, the AJ ordered the Agency to pay $25,000 in non-pecuniary compensatory damages. The Agency was to allow Complainant to complete the rest of his probationary period in a service representative position, under different managers, with pay, and then be placed into a regular position or receive five years of front pay. Finally, the AJ granted Complainant $39,987.50 in attorney's fees. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that it subjected him to retaliatory discrimination as alleged. The Agency also filed the instant appeal. ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). 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). Complainant's Motion to Dismiss As an initial matter, we shall address Complainant's belief that the Agency's appeal should be dismissed on the grounds that it has failed to provide interim relief. Specifically, Complainant argues that the AJ ordered reinstatement, but the Agency "has never offered [me] interim relief of any kind at any time since filing its appeal . . . ." Pursuant to 29 C.F.R. § 1614.505(a)(4), when the agency appeals and the case involves removal, separation, or suspension continuing beyond the date of appeal, the agency must: notify the Commission and the employee in writing at the same time it appeals that the relief it provides is temporary and conditional, and, if applicable, that it will delay the payment of any amounts owed but will pay interest ... Failure of the agency to provide notification will result in the dismissal of the agency's appeal. In response, the Agency contends that its non-compliance should be excused because the AJ did not advise the Agency of the interim relief provision, and because it took prompt action to remedy the error when the matter was brought to its attention. According to the Agency, it first learned of its obligation when Complainant moved to dismiss the appeal. The Agency states that the same day Agency counsel received the motion, Agency officials were contacted. On July 24, 25, and 26, 2013, Agency representatives tried to contact Complainant by telephone and email, to discuss interim relief and to negotiate an appropriate office where Complainant could report. Further, on August 1, 2013, the Agency mailed and emailed Complainant an offer of a GS-7, Step 1 Service Representative Trainee position in the Montgomery, Alabama Social Security Office. The Agency asserts that it has not received a reply from Complainant's attorney. In the preamble accompanying this newly-revised regulation, the Commission stated that the revision was intended "to more closely track the MSPB's interim relief provision." 64 Fed. Reg. 37,644, 37,649 (1999). The MSPB does not dismiss appeals in such circumstances if the failure to comply with the interim relief notice requirements was inadvertent and promptly corrected when discovered. See, e.g., Franklin v. Department of Justice, 71 M.S.P.R. 583, 590 (1996); Johnson v. Department of Justice, 67 M.S.P.R. 494, 497 (1995); Barcliff v. Department of the Navy, 62 M.S.P.R. 428, 432 (1994). Based on our review of the parties' submissions, we conclude that the Agency's noncompliance was inadvertent and that, less than three months after the May 2013 AJ's decision was issued, it promptly acted to correct its error. Therefore, we decline to dismiss the appeal. See 29 C.F.R. § 1614.604(c). Accordingly, we shall review the merits of the Agency's appeal. Disparate Treatment In this case, Complainant contends that he was terminated during his probationary period in reprisal for his prior protected EEO activity. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). On appeal, the Agency argues that the AJ erred in finding that Complainant participated in protected activity prior to his termination. Specifically, the Agency contends that "when Complainant was first interviewed by the EEO Counselor on January 12, 2010, in articulating his claims, Complainant did not allege discrimination based on his membership in a class protected by [the statutes] enforced by the EEOC." Instead, Complainant complained of harassment based on "conduct not affecting performance." According to the Agency, Complainant failed to establish the basis of reprisal. We are, however, not persuaded. The record is clear, and the Agency does not dispute, that Complainant used the EEO process before his termination. By initiating contact with the EEO Counselor, Complainant engaged in "prior protected EEO activity". Next, the Agency contends that the AJ's finding of retaliation is not supported by substantial evidence. In so arguing, the Agency places emphasis upon the testimony of Complainant's first-line supervisor and the legitimate, non-discriminatory reasons proffered at the hearing. The record reflects, however, conflicting evidence between witnesses. Complainant's first-line supervisor attested that the termination was based upon performance issues. However, the AJ noted that Complainant's second mentor did not observe such performance problems. Further, the AJ observed that the mentor was in a better position to have first-hand knowledge of Complainant's work. Additionally, in her decision the AJ explicitly notes, repeatedly, that the "[first-line supervisor's] testimony is not credible." She found the first-line supervisor "demeanor at the hearing demonstrated that he was not a credible witness." Similarly, the AJ did not find the District Manager to be a credible witness, regarding his knowledge of Complainant's prior EEO activity. The Agency has not produced evidence showing that a reasonable fact finder would not credit the testimony provided by Complainant or his second mentor. Based on the instant record, we find that the AJ's finding of retaliation is supported by substantial evidence. Remedies When discrimination is found, the agency must provide the complainant with an equitable remedy that constitutes full, make-whole relief to restore him/her as nearly as possible to the position s/he would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). The Commission recognizes that precise measurement cannot always be used to reduce the wrong inflicted. Nonetheless, we believe that the burden of limiting the remedy rests with the agency. See Davis v. U. S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990). Back Pay The purpose of a back pay award is to restore to Complainant the income he would have otherwise earned but for the discrimination. See id. On appeal, the Agency argues that the AJ exceeded her authority by awarding back pay for the time prior to his termination date. A review of the record reflects that, in a memorandum dated February 26, 2010, Complainant was notified he was terminated effective March 5, 2010. The AJ provides no explanation for beginning the period of back pay on January 6, 2010. Accordingly, the AJ's award of back pay is modified. The Agency shall pay Complainant back pay, with interest, from March 5, 2010 until Complainant is either reinstated to his position with the Agency or accepts front pay (see below). Front Pay Front pay is an equitable remedy that compensates an individual when reinstatement is not possible in certain limited circumstances. The Commission has identified three circumstances where front pay may be awarded in lieu of reinstatement: (1) where no position is available; (2) where a subsequent working relationship between the parties would be antagonistic; or (3) where the employer has a record of long-term resistance to anti-discrimination efforts. Tyler v. U.S. Postal Service, EEOC Request No. 05870340 (Feb. I, 1988). In order for an individual to be eligible for an award of front pay, the individual must be available to work. See Finlay v. U.S. Postal Service, EEOC Appeal No. 01942985 (Apr. 30, 1997); York v. Dep't of the Navy, EEOC Appeal No. 01930435 (Feb. 25, 1994). The Agency argues that the AJ "exceeded her authority by awarding front pay in addition to reinstatement." Specifically, the Agency raises concerns over the following language in the AJ's decision: The Agency also shall allow Complainant to go through the rest of his probationary period in a service representative position, under different managers, supervisors, and mentor, with pay; then instate Complainant into a service representative position; or pay Complainant five years of front pay. The Agency contends that it is unclear whether the order required it to: (1) reinstate Complainant as a probationary employee for approximately fourteen months and either (a) fire him and pay five years of front pay or (b) continue to employ him in a permanent position; or (2) reinstate Complainant for fourteen months as a probationary employee and then a permanent employee or simply provide front pay. The Agency asserts that, to the extent the AJ intended implementation of the above reference remedy in (1)(a), such implementation is contrary to law. We agree that to award both reinstatement and front pay would place Complainant in a better position than he would have been in the absence of discrimination. We find it is more appropriate to allow Complainant to take one of two options: either complete the remainder of his probationary period in a service representative position (under different managers, supervisors, and mentor) or receive front pay. As for the amount of front pay, we find that the AJ's initial award of two years3 to be proper in light of the two-year probationary term of Complainant's position and his ability to work. Non-Pecuniary Compensatory Damages 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, a complainant must demonstrate that he 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. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), recon. denied, EEOC Request No. 05940927 (Dec. 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). A Complainant is required to provide objective evidence that will allow an Agency to assess the merits of his request for damages. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.002 at 10 (July 14, 1992). As noted above, the AJ ordered the Agency to pay Complainant $25,000 in non-pecuniary compensatory damages, due to Complainant's mental anguish, headaches, anxiety, stroke sensations, and acid reflux. Since the Agency does not dispute the non-pecuniary compensatory damages award on appeal, we shall not include the matter in our analysis. Attorney's Fees By federal regulation, the Agency is required to award attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. 29 C.F.R. § 1614.501(e)(1)(h). The Agency does not challenge the AJ's attorney's fees award of $39,987.50. Thus, upon review of the entire record, the Commission finds no reason to disturb the AJ's award. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency's final order, AFFIRM the AJ's finding of discrimination, and MODIFY, in part, the AJ's order of relief. This matter is REMANDED to the Agency for further processing in accordance with the Order below. ORDER Within sixty (60) calendar days of the date this decision becomes final, to the extent that it has not already done so, the Agency shall: 1. Offer Complainant the opportunity to either: (a) complete the remainder of his probationary period in a Service Representative Trainee, GS-7, position under different managers, supervisors, and mentor. Complainant shall be given a minimum of 15 days from receipt of this offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period will be considered a declination of the offer. If Complainant accepts the offer, the appointment shall be retroactive to March 5, 2010; or (b) receive front pay for a period of two years. 2. Determine the appropriate amount of back pay (with interest, if applicable) and other benefits due Complainant, beginning March 5, 2010, and continuing to his reinstatement or election to receive front pay, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the complainant for the undisputed amount within 60 days of the date the agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. Pay Complainant a total of $25,000 in non-pecuniary compensatory damages. 4. Pay Complainant's counsel $39,987.50 in attorney's fees. 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 (G0610) The Agency is ordered to post at its Field Office in Dothan, Alabama 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), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations March 4, 2015 __________________ Date 1 These original allegations were later dismissed by an EEOC Administrative Judge because Complainant had not alleged the events occurred because of any prohibited basis under the statutes enforced through the EEO complaint process. 2 The Agency filed a motion with the AJ, seeking the dismissal of the hearing request on the grounds that the amendment to add this reprisal claim had not been acknowledged or accepted. However, in a prior appeal, we found that the Agency failed to amend the formal complaint in accordance with Commission regulations. The Commission found that the record clearly reflected that Complainant raised the claim in his affidavit. Moreover, the Commission found that the termination grew out of Complainant's initial claims. The matter of the termination was remanded to the Hearings Unit for a hearing. See Walker v. Social Security Administration, EEOC Appeal No. 0120112197 (May 10, 2012). 3 Without explanation, the AJ awarded five years of front pay in her May 7, 2013 "Amended Decision". Her original decision, dated February 28, 2013, granted Complainant two years of front pay. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720130027 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720130027