Alex W., Complainant v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency. Appeal No. 0720130030 Hearing No. 470-2011-00003X Agency No. 10-0006-HQ-EM DECISION Following its July 3, 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. On August 7, 2013, Complainant also filed an appeal.1 For the following reasons, the Commission modifies the Agency's final order. ISSUE PRESENTED The issue presented is whether substantial evidence in the record supports the AJ's finding that Complainant established that he was subjected discrimination based on race as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant, a member of the federal Senior Executive Service (SES), worked as the Director of Office of Ground Water and Soil Remediation at the Agency's Savannah River Site (SRS) in Aiken, South Carolina. Report of Investigation (ROI), at 15. Complainant was asked by the Director of the Recovery and Reinvestment Act (ARRA) (African-American, female) to report to the SRS because the Office of Engineering and Construction Management had found that the SRS failed an external review. Id. at 45. According to Complainant, the Director of the ARRA asked him to try to save the ARRA program and the $1.6 billion in cleanup stimulus money that the SRS had received. Id. at 31. Complainant was directed to lead a small SES management team to fix the issues and recover the project. Id. In August 2009, Complainant and the ARRA Director met with SRS senior management, which included the Deputy Manager for Cleanup (DMC) (Caucasian, female), among others. According to Complainant, after this meeting and a subsequent meeting, the first anonymous e-mail was sent targeting the ARRA Director, which was circulated throughout the Agency and the SRS communities. Subsequent anonymous e-mails from a person going by the alias "Fraud Buster" (FB) were thereafter sent targeting both Complainant and the ARRA Director. FB named both the ARRA Director and Complainant in a lengthy e-mail dated September 7, 2009. Id. at 118-19. Therein, FB noted, among other things, that the ARRA Director "emphasized the hiring of minorities." Id. FB further noted that "[the ARRA Director] wanted the 'old white guy' taken out of the picture and replaced by more diversity." Id. FB also accused the ARRA Director of misappropriating $9 million in AARRA funding, alleging that the money was given to a Historically Black University. Id. FB also implicated Complainant, noting that he was also responsible for the hiring of minorities. Id. FB's e-mail concluded, noting that "[t]hese examples must be investigated and the [ARRA Director] must be held accountable for her unethical behavior." Id. In another e-mail dated September 23, 2009, FB wrote that the ARRA Director was only promoted by virtue of filing EEO complaints, and also recommended that both Complainant and the ARRA Director be removed from their positions. Id. After anonymous e-mails were circulated, defamatory damaging information about Complainant and the ARRA Director began to appear in various trade publications and local newspapers. Id. at 72-73, 79-85. These trade and newspaper articles posted photos of Complainant, the ARRA Director, and other SES employees. Id. The articles accused Complainant and the ARRA Director, among other SES employees, of unethical behavior. Id. One published article dated September 30, 2009, wrote that an employee (E1) was forced to leave his position in retaliation for participating in an Inspector General (IG) investigation into Complainant, the ARRA Director, and the Deputy Director (Hispanic, male) for ethics violations. Id. at 79-80. The article wrote, "According to [E1's] e-mail, his temporary replacement, [Complainant], is under investigation by the Inspector General." Id. The article also wrote that a letter to the Agency's Secretary lambasts certain employees, including Complainant, as having "agendas of greed and power." Id. Another article dated October 2, 2009, noted that E1 wrote that he was removed from his position "for his cooperation in an investigation under way at the site by the Inspector General's Office involving the conduct of other managers, including [Complainant] . . . and [the ARRA Director] who heads Recovery Act programs . . . . Id. at 83. On November 20, 2009, a newspaper's front page posted the pictures of only Complainant and the ARRA Director with the headline, "Unprofessional behavior plagues SRS." Id. at 72-73. The article wrote that employees "claim in internal e-mails that they fear for their safety" around Complainant and the ARRA Director. Id. After the articles were published, anonymous e-mails continued to be circulated throughout the Agency and the SRS communities. Agency management apparently told Complainant as well as the ARRA Director that there was nothing they could do about these articles because they did not know the identity of FB. Complainant believes that it was apparent that SRS senior managers were responsible because the information leaked to the press was confidential information of which only senior management had knowledge. As a result of the allegations from FB, the Agency's IG opened an investigation to determine whether the claims levied against the ARRA Director and Complainant were accurate. The IG's memorandum dated December 29, 2009, stated that the investigation encompassed whether there was an improper transfer of $9 million of ARRA money to certain History Black Colleges and Universities (HBCUs), and whether there had been improper hiring personnel practices as alleged. ROI, at 19-20. In summary, the IG found there was no evidence to substantiate the allegation regarding HBCUs or any of the other claims levied against the ARRA Director and Complainant. Id. at 20. Instead, the IG found that the work atmosphere of the SRS was dysfunctional, noting, "[W]e encountered witnesses who testified that there was confusion as to lines of authority, responsibility and accountability; poor internal communications, a lack of coordination; failure to share essential information among key officials; and, insufficient follow-up on critically important issues and decisions." Id. The December 29, 2009, IG's memorandum noted: Some witnesses described their colleagues and the actions of their colleagues in highly personal and often derogatory terms. Of perhaps the greatest concern, were the issues raised about racism and reverse discrimination. Id. In February 2010, after attending a meeting with SRS management, a contractor employee (C1) (Caucasian, male), received a phone call from a media publication inquiring into his visit at the SRS. Immediately after receiving the phone call, C1 contacted the DMC, E1, and the Principal Deputy, expressing irritation and discontent about having the details of his conversations disclosed to the press. Soon thereafter, the DMC personally phoned the media outlet, asking a specific employee with the publication whether he had spoken with C1. Hr'g Tr. 692-93. The DMC also asked the specific employee to keep their conversation "off the record." Id. Meanwhile, on January 19, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), national origin (Guyanese) and age (59) when: 1. From September through December 2009, Savannah River Site Management made him the subject of scandalous e-mails and newspaper articles; and 2. On October 29, 2009, he was threatened with physical harm by the Savannah River Site Contracting Officer. At the conclusion of the investigation, 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 hearing. The AJ held a hearing on May 9-10, 2012, and issued a decision on May 21, 2013. Therein, the AJ found that Complainant established that he was subjected to discrimination with respect to claim 1. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. AJ's Decision The AJ found the following facts: after Complainant's arrival at the office, negative and disparaging information began to appear in several publications that referenced Complainant and several members of the SES team. On or about September 7, 2009, an unidentified employee, calling his or herself the Fraud Buster (FB), sent an e-mail to the IG's office and several media outlets, with the subject line, "Unethical Behavior by ARRA Czar for Energy." The e-mail provided disparaging information about certain SES employees and specifically accused Complainant of unethical behavior. On September 23, 2009, a Washington, D.C. publication received an e-mail from FB, which noted in part that E1 had been subjected to harassment and asserted that the Agency should remove Complainant from ARRA work. After E1 was removed from SRS and reassigned on September 29, 2009, another publication published an article discussing E1's removal. The article published an e-mail that E1 had sent which stated that Complainant, among other things, was under investigation by the IG. On September 30, 2009, several more publications published articles referencing Complainant and discussing E1's departure. Afterward, on October 3, 2009, a published article noted, among other things, that Complainant and the ARRA Director had been accused of unethical conduct and abused their positions for personal gain. Out of concern for his reputation, Complainant asked management to take action against FB or any other employee who may be sharing confidential Agency information with the press. Complainant specifically requested that management conduct an inquiry to determine the identity of FB or if any other employee was using Agency resources to leak the information to the press. The AJ found that, although several management officials were concerned about the leaks to the media, the Agency took absolutely no action to prevent, deter, or advise employees on the improper leaks to the media. The AJ noted that, despite Complainant's multiple requests, the Agency declined to rectify the leaks in any way. In finding that Complainant had been subjected to disparate treatment, the AJ noted that a Caucasian comparator (C1) expressed concern to management that the details of his meetings and work had been relayed to a publication. The AJ noted, however, that unlike Complainant, the Agency immediately took action on C1's behalf. The AJ noted that the DMC thwarted any further information from being leaked about C1. The AJ pointed out that the DMC found that one article about C1 was very significant, yet did not find the articles about Complainant, although more inflammatory, important enough to take the same action on Complainant's behalf. The AJ further indicated that the Agency conducted an investigation when the articles about Complainant surfaced, but did not act upon the findings of the investigation. The AJ found that the Agency's explanation for their different responses to the media leaks was not credible. In sum, the AJ found that Complainant established that the Agency was motivated by discriminatory animus based on his race with respect to claim 1.2 Having determined that the Agency subjected Complainant to discrimination, the AJ addressed Complainant's request for damages. The AJ found that the Agency's actions caused Complainant shame, embarrassment, and damage to his professional reputation. The AJ further found that Complainant was disgraced in his community. The AJ awarded Complainant $42,500 in non-pecuniary compensatory damages.3 The Agency subsequently issued a final order rejecting the AJ's finding that it had subjected Complainant to discrimination based on race with respect to claim 1.4 CONTENTIONS ON APPEAL Agency's Brief On appeal, the Agency asserts that Complainant's claim encompasses defamation per se, which is not actionable under EEOC regulations, and therefore fails to state a claim. The Agency also contends that the AJ improperly expanded the scope of claim 1, and therefore ruled on a matter that was not an accepted issue. The Agency states that the AJ's finding of discrimination was dependent on her improper framing of claim 1, which constitutes legal error. The Agency additionally maintains that Complainant cannot establish a prima facie case of race discrimination because he cannot establish that he was subjected to an adverse employment action; namely, that Complainant did not lose any benefits of privileges of employment and his reputation was not damaged. The Agency states that Complainant has not established that any employee leaked information about him to the media. The Agency states that, even assuming that Complainant can show that an employee leaked the information, any false statement made to media would have been outside the scope of the employee's official duties. The Agency maintains that it did not publish, support, or sanction any of the articles written about Complainant. The Agency also argues that the AJ erroneously found that C1, a contractor, was similarly situated to Complainant. The Agency states the articles that contained Complainant's name and photograph also showed the names of other Agency employees. The Agency further alleges that each article about Complainant was accurate because the IG received anonymous allegations regarding certain improprieties about him. The Agency also argues that it conducted an investigation into the leaks, but that the AJ mischaracterized its efforts. The Agency states that Fraud Buster's identity was never determined and that the results of its IT investigation were inclusive. The Agency therefore states that they could not stop Fraud Buster because the identity of this person was never identified by their investigation. The Agency contends that the reason the DMC contacted the media for C1, but not for Complainant, was because C1's actions affected the entire management team, but the DMC had no work-related interaction with Complainant. The Agency maintains that there is no evidence that it was motivated by discriminatory animus here. Complainant's response In response, Complainant states that, although the articles mentioned coworkers as well, no coworker mentioned was Caucasian. Complainant states that the articles only mentioned him and his minority coworkers, with one article stating that he and his coworkers had "agendas of greed and power." Complainant states that he reported an incident wherein another employee (Caucasian) threatened to shoot him with a gun, but only his photo and the ARRA Director's photo were on the front page of a newspaper with the headline, "Unprofessional behavior plagues SRS." Complainant additionally asserts that, although E1 admitted that he made untrue and malicious statements about Complainant, the Agency nevertheless continues to assert that all the articles and e-mails about him were true. Complainant additionally contends that the claim by the Agency that he did not lose pay, benefits, or privileges of employment is incorrect. 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). ANALYSIS AND FINDINGS Harassment / Hostile Work Environment At the outset, we note that, although the AJ analyzed this matter under a disparate treatment theory, we find that Complainant's allegations are more properly addressed as a hostile work environment/harassment case. Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinnev v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3, 9 (Mar. 8, 1994). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title Vll must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer, See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Upon review, we find that the Agency's actions were based on Complainant's race in the form of unwelcome verbal conduct. Although the Agency maintains that no employee leaked information about Complainant to the media, we note that employees believed that the DMC was responsible for the leaks. Testimony reflects that the Assistant Secretary for Environmental Management believed that the DMC was Fraud Buster. Hr'g Tr., at 695. Also, the Director of Diversity Programs testified that there were "strong indications" that the DMC was responsible for the leaks, and that "there were conversations with [management], with every indication that it was [the DMC]" who was responsible. Id. at 386-87. Further, although the DMC herself testified that she had never received or reviewed the e-mails from Fraud Buster, she continued to accuse the ARRA Director of some of the same ethical violations. Specifically, the DMC, similar to Fraud Buster's email, testified: [The ARRA] made it very clear that she first had come down here to give $9 million to [a Congressman's] historical black - - nine historical black colleges, and that we, the site, were not working towards making [the Congressman] happy . . . . [S]o she directed that four more job fairs be conducted and set in [the Congressman's] districts, which are at a minimum two hours away from the site. Id. at 678 Identically, FB's e-mail dated September 7, 2009, also accused the ARRA Director of misappropriating $9 million in ARRA funding for a Historically Black University. Therein, FB also implicated Complainant, noting that he was also responsible for the hiring of minorities. ROI, at 118-19. In the DMC's testimony, she continued to assert that the ARRA Director and Complainant acted improperly despite the fact that the IG's investigation found nothing but dysfunction and a concern about allegations of discrimination. We also point out that that the DMC's testimony reflects that she had personal knowledge of the names of employees who worked for one media publication and was comfortable calling them by phone, asking them to keep certain conversations "off the record." Hr'g Tr. at 693. Also, the employee whom the DMC contacted for the publication was the same employee FB addressed in e-mails. ROI, 118-120, Hr'g Tr. 681. Based on the above, we find that the record supports a finding that the DMC was in fact Fraud Buster, responsible for disseminating the information about Complainant and the ARRA Director to the press and throughout the Agency. Given the e-mail dated September 7, 2009, discussing monies to Historically Black Universities, diversity, and the hiring of minorities, it is clear that the DMC's actions as the Fraud Buster were based on Complainant's and the ARRA's Director's protected status as African-American employees. Therefore, we find that Complainant has established the first three prongs of the prima facie case of a hostile work environment. Objectively Hostile or Abusive Work Environment Turning now to the fourth prong, we note that whether or not an objectively hostile or abusive work environment exists is based on whether a reasonable person in complainant's circumstances would have found the alleged behavior to be hostile or abusive. The incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris, 510 U.S. at 17, 21; see also Oncale, 523 U.S. 75 (1998). To ascertain this, we look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; whether it was hostile or patently offensive; whether the alleged harasser was a co-worker or a supervisor. See Harris, 510 U.S. at 17, 23. Here, we find that the DMC's conduct was sufficiently severe and pervasive to alter the conditions of Complainant's employment and create an abusive working environment. We find that a reasonable person would find that the cumulative effect of the DMC's actions created a hostile work environment. First, we note that the DMC through her Fraud Buster alias sent the e-mail dated September 7, 2009, implicating Complainant for unethical behavior for the hiring of minorities, among other inflammatory assertions. Second, due to the DMC's actions, Complainant's name and picture were published in the media, accusing him of unethical conduct. Through the DMC, media publications wrote that Complainant and the ARRA Director were engaged in unprofessional behavior and abused their positions looking for "greed and power." Notwithstanding the Agency's assertions on appeal, other than the DMC's testimony, there is absolutely no evidence in the record that Complainant acted unethically in the performance of his duties. Complainant's career and reputation were clearly affected by the DMC's actions; namely, Complainant and the ARRA Director were later apparently told that they could no longer be managers at the SRS due to the articles written about them. Hr'g Tr., at 128. Third, as a result of the DMC's allegations as Fraud Buster, the IG opened an investigation. Instead of finding that the allegations levied against Complainant and the ARRA Director were true, the IG found, as noted above, that witnesses described coworkers in derogatory terms with issues of racism and reverse discrimination. ROI, at 20. Fourth, we note that, during the hearing, employees testified that the SRS has historically, for years, had a culture of subjecting African-American employees to extreme bigotry, including highly charged racial epithets (the n-word) and highly charged derogatory symbols of discrimination. Specifically, the Director of the Office of Human Capital (DOHC) (African-American) testified during the hearing that a consultant came to the SRS to do a culture assessment. The DOHC testified that the consultant revealed: The Savannah River site was characterized as a plantation with masters, overseers, house slaves and field slaves. The house slaves have perks that are denied to field slaves. . . . These comments and perceptions that were shared by the consultant, I happen to have been in the meeting when they were shared, were immediately discounted and there was no follow-up meetings . . . . Hr'g Tr., at 54-55. The DOHC further testified that other employees came to him, complaining about being treated in a disparate manner. Id. at 59. The DOHC felt that he, himself, had also been treated in an unethical, disparate, and unprofessional manner as well. Id. at 56. The DOHC also testified that he left the SRS because his mid-year and year-end reviews did not reflect his accomplishments and he did not his reputation to be tarnished. Id. at 61-62. We further note that the ARRA Director described the SRS as a "racial hell hole," testifying that "Savannah River has been a place of racial discrimination and racism for years." Id. at 164, 173. The ARRA Director testified: [T]hey have had nooses that was hung out [sic]. They had the N-word on several areas at the Savannah River Site. They had one Savannah River employee, a DOE employee, who wanted the Confederate flag displayed in his office. Went around asking, could we sign up for Confederate Day, or having a Confederate celebration. Id. at 173-74. Based on the above, we find that Complainant has met the fourth prong, establishing an objectively hostile or abusive work environment. Liability Because Complainant has established that he was subjected to racial harassment, we must finally examine whether Agency is liable for the harassing actions. This is a case of coworker harassment, and in the case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance; Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992). In the instant case, there is no dispute that many different levels of management employees and the local surrounding community were aware of the e-mails and public articles implicating Complainant. Even after Complainant and other coworkers complained, leaks to the media about Complainant continued from within the SRS senior management team (the DMC) with little or almost no effort to stop them. Although there is some testimony in the record that there may have been an investigation into the leaks, the record is unclear as to the extent of it and who performed it. We note that most, if not all, of the testimony about any such investigation into the leaks came from the DMC herself, who as noted above, was the one actually responsible for the leaks. We find that the DMC's testimony about any such investigation into the leaks is not credible based on record. We note that the DMC testified to the as follows: Q: Did the [Agency] ever investigate who was leaking e-mails to the press? A: Yes, the [A]ssistant [S]ecretary requested that our security people, who had the IT, you know, the IT, the communications database, that they go back through the archives of all the e-mails . . . . Hr'g Tr., at 686-87. Yet, we note the Agency's Headquarters' Associate Director for Diversity testified differently, saying that a forensic investigation in fact had not been done. The Director testified: Q: . . . [D]o you know if the forensic analysis was in fact done at Savannah River to determine who was . . . leaking information to the media? A: One was not done, that I'm aware of. Id. at 392. The Associate Director for Diversity also testified to the effect that Agency Headquarters, on the advice of its Office of General Counsel, determined that it should not get involved in this matter. The Director for Diversity further testified as follows: The office of general counsel at the Department of Energy Headquarters, and the office of inspector general, [said] that they shouldn't engage in this because it would perhaps chill the environment. . . . And so, you know, whoever was doing this was given free rein to continue to do it and against the, you know, of us who knew that they could address it, and so . . . they chose not to do anything. Id. at 376. Further, the Agency's Headquarters' IT cyber security employee testified that that her office is generally responsible for conducting such forensic investigations, but she was not asked to get involved here and was told was told that an investigation had already been done. Id. at 463-67. Yet the IT cyber security employee testified that she never received a copy of any forensics report which named the person responsible for the leaks. Id. at 464. There is no dispute that employees strongly believed that the leaks were coming from inside the SRS senior management team, in particular from the DMC. We note that when C1 was irritated about having his conversations leaked, the DMC quickly attempted to rectify the situation by directly phoning certain employees at the media outlet, with whom the DMC was coincidentally familiar. It is clear that, although there was an investigation conducted by the Agency's IG focusing on whether the ARRA Director and Complainant engaged in misconduct, there was no sufficient investigation or action by the Agency to stop the leaks against them even though it apparently was common knowledge that it was the DMC who was responsible.5 As such, based on the above, we find that the Agency failed to immediately and effectively address the DMC's harassment of Complainant despite the public nature of the harassment in this case. The Agency's headquarters and various management employees were aware of the harassment, yet no sufficient action was taken to stop or discipline the DMC even though it likely was known that she was responsible. We find that the Agency's response here is inadequate, and its failure to promptly and appropriately address this matter conveyed the message that Complainant could be intimidated with impunity, and that the Agency did not take racial harassment seriously. See Bryant v. Dep't of the Interior, EEOC Appeal No. 0120091468 (Aug. 31, 2012). Accordingly, we find the Agency liable for the harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we conclude that the Administrative Judge's decision issued following a hearing is supported by substantial evidence of record. We therefore MODIFY the Agency's final order and AFFIRM the AJ's finding of discrimination. We REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER Within thirty (30) days of the date this decision becomes final and to the extent it has not already done so, the Agency shall do the following: 1. The Agency shall pay Complainant $42,500 in non-pecuniary compensatory damages. 2. The Agency shall provide a minimum of eight (8) hours of EEO training, with a focus on discrimination based on race, for the management official identified as the DMC found to have engaged in the discrimination. The training shall address manager's responsibilities with respect to eliminating discrimination in the workplace and all other supervisory and managerial responsibilities under equal employment opportunity law. 3. The Agency shall consider taking disciplinary action against the DMC. The Commission does not consider training to constitute disciplinary action. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall notify the Commission's Compliance Officer of the action taken. If the Agency decides not to take disciplinary action, it shall inform the Commission's Compliance Officer of the reason(s) for its decision not to impose discipline. If the DMC is no longer employed by the Agency, the Agency shall provide proof of the date of separation. 4. The Agency shall post a notice in accordance with the paragraph below. 5. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." POSTING ORDER (G0914) The Agency is ordered to post at its Aiken, South Carolina, Savannah River Site (SRS) 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)), he 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 (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 December 12, 2014 Date 1 Complainant's appeal was initially docketed as Appeal No. 0120132882. On January 30, 2014, the Commission notified the parties that Appeal No. 0120132882 would be administratively closed and the matters would instead be addressed in the instant Appeal No. 0720130030. 2 The AJ found that Complainant failed to establish that he was subjected to discrimination with respect to claim 2. 3 Neither party contests the AJ's award of compensatory damages; therefore we will not address this issue on appeal. 4 We note the parties contest only the AJ's finding with respect to claim 1, wherein the AJ found discrimination. We therefore will not address claim 2. 5 The ARRA Director filed her own EEO complaint against the Agency, which the parties reportedly settled. Hr'g Tr., at 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720130030 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720130030