Valencia L., Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Federal Law Enforcement Training Center), Agency. Appeal No. 0720130039 Hearing No. 410-2011-00229X Agency No. HS-10-FLETC-17870 DECISION Concurrently with the issuance of its September 6, 2013 Final Order, the Agency filed an appeal. 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 a portion of the relief ordered by the AJ. Specifically, the Agency rejects the AJ's award of compensatory damages. For the following reasons, the Commission REVERSES the Agency's Final Order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor, GS-0905-13, also known as a legal instructor, at the Agency's Federal Law Enforcement Training Center (FLETC) facility in Glynco, Georgia. Complainant entered on duty into her position as an instructor in August 2009. Complainant and her coworkers are responsible for providing instruction to FLETC students from a variety of federal agencies and other law enforcement organizations. From approximately November 2009, until approximately the end February or early March 2010, Complainant admits engaging in an extramarital affair with E1, a GS-4 Staff Assistant who was then also employed in the legal division where Complainant worked. On May 23, 2010, D1 became the Chief of the legal division. The record shows that on June 11, 2010, Complainant, D1, and supervisors B1 (Branch Chief and former Division Chief) and B2 (former Branch Chief) met. In that meeting, D1 expressed to Complainant that if he could, he would fire Complainant that day. On August 6, 2010, D1 met with Complainant and B1. D1 informed Complainant that her employment would be terminated during her probation (or trial period). Complainant was sent home by D1 on August 6, 2010. Complainant was relieved of all classroom work and returned to her office August 9, 2010, where she was assigned to other duties. Complainant was directed to work from home August 10, 2010, and then returned to non-classroom duties in the office August 11, 2010. On September 1, 2010, D1 issued Complainant a memorandum letter terminating her employment during probation, effective September 2, 2010. On August 13, 2010, D3, a division chief from another division, was appointed along with C3, to investigate E1 for conduct unbecoming a federal employee. E1 tendered his oral resignation from the Agency to C1, effective August 23, 2010. On August 27, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On September 2, 2010, Complainant was terminated;1 2. On August 6, 2010, the Division Chief (D1) discussed Complainant's alleged sexual relationship with a senior instructor; 3. On August 6, 2010, Complainant was removed from all legal instructor duties; 4. On August 6, 2010, Complainant was sent home in accordance with protocol for someone being terminated; 5. On August 9, 2010, Complainant returned to work with limited duties; 6. On August 10, 2010, Complainant was instructed to work from home; 7. On August 11, 2010, Complainant was instructed to return to work with limited duties; 8. On August 16, 2010, Complainant was removed from electronic covert surveillance training; and 9. On August 23, 2010, Complainant received the Kalkines warning, and was compelled to provide a sworn statement about her sexual relationship with a coworker. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on March 13, 2012, June 13, 2012, June 15, 2012, and July 13, 2012, and issued a decision on August 1, 2013. In her Decision, the AJ framed Complainant's complaint as a single overall claim of termination based on sex. The AJ found that on September 1, 2010, D1 presented Complainant with a memorandum letter of termination (Letter) which described a number of reasons for Complainant's termination. Among other reasons for the termination, this Letter noted that Complainant was counseled on May 3, 2010, by B2 about: four conduct issues including excessive and unaccountable absences from the office; providing care for her children in the office during work hours; Complainant's dress; and the amount of time that Complainant spent with E1, a GS-4 coworker. The AJ found that, unlike the characterization in D1's Letter, B2 did not consider the discussion he had with Complainant on May 3, 2010, to be a verbal counseling. B2, the AJ noted, characterized the discussion as one of mentoring. Additionally, B2 denies that he discussed alleged excessive or unaccountable absences. B2 also acknowledged, the AJ found, that Complainant's children had not caused problems in the workplace and his discussion with Complainant was limited to a general one of the occasional need for children to be in the office. The AJ found other instructors (T7 and T4) confirmed that Complainant's children never caused office disruption, but the child of another probationary male instructor, T1, did. T1, however, was never counseled about providing child care in the office, much less disciplined or terminated during his probation. The AJ considered B2's failure to recall counseling Complainant about the Agency's dress code regarding the wearing of blue jeans or flip-flops. The AJ found the evidence demonstrated that the dress code was not routinely followed in the legal division and that other employees wore blue jeans in the office. D1 himself, the AJ noted, often wore slippers around the office. B2 also denied, the AJ observed, counseling Complainant about the amount of time she spent with E1. The second circumstance the Letter described in support of Complainant's termination occurred on May 11, 2011, when Complainant dismissed a class she was instructing, approximately one hour early. The AJ found that B1 did discuss the early dismissal with Complainant, but the AJ noted, B1 considered the incident insignificant and had forgot it happened until August 2010, when D1 reminded B1 about it. The AJ found B1, and instructors T7 and T6, confirmed that Complainant is not the only instructor who dismissed class early though she was the only instructor counseled, disciplined, or terminated for doing so. T7, the AJ considered, concurred with Complainant's assessment that the material in the identified course was insufficient to fill the time allotted to it and that supervisors are aware of this. The Letter stated that on May 12, 2010, B2 counseled Complainant, reminding her that she was a probationary employee who had failed to complete tasks required in the classroom. B2, however, again rejected the characterization of his meeting on that day with Complainant as counseling, and does not confirm the letter's description of the content of this meeting between himself and Complainant, the AJ observed. The Letter additionally described as a reason for Complainant's termination, Complainant's participation in a program identified as "CSI-FLETC" in conjunction with the College of Coastal Georgia. Complainant, the AJ noted, is alleged to have, without authorization, solicited from the Agency, items to donate to the program. The AJ found the letter's characterization of the events surrounding Complainant's role in the "CSI-FLETC" program totally at odds with the evidence. Specifically, the AJ found that D1 sanctioned administrative leave for Complainant and T4 for this event and that Agency officials were aware of Complainant's participation in the program as early as May 17, 2010. A fourth item described in the Letter in support the Agency's decision to terminate Complainant's employment involved Complainant's failure to monitor an Ethics class on June 10, 2010. The AJ found that new instructors (Complainant, T1, T2, T3, T4, and others) often monitored courses they had not presented and instructors, as well as supervisors, acted as secondary instructors for some courses. Complainant, the evidence showed, requested that T1 monitor the Ethics course on that day because she had very little sleep the night before due to family illness. T1 monitored the course on June 10, 2010, and Complainant presented the Ethics course on June 24, 2010. B1, the AJ noted, attended Complainant's presentation of the Ethics course and commented that Complainant was well prepared and did a good job. The AJ found the evidence, specifically, B1's testimony, confirmed that instructors occasionally do not attend classes they are scheduled to monitor. B1 further confirmed that he is unaware of any instructor, other than Complainant, being disciplined for not monitoring a class. Another justification for Complainant's termination cited in the Letter is that Complainant was unprepared to present a class in Electronic Law and Evidence on June 11, 2010. The AJ found the evidence was unclear who determined that Complainant was unprepared to teach this course. The AJ noted that instructor T3 approached Complainant and offered to lead the class during the laboratory portion of this course, to which Complainant agreed. That portion, the AJ observed, covered approximately 15 minutes of the allotted class time. The AJ considered T3's confirmation that nothing occurred that day to indicate that Complainant was not prepared to teach the course. The Agency had received, the Letter noted, negative critiques from two students pertaining to a Fourth Amendment class that Complainant instructed. The AJ considered D1's testimony that the critiques, received on August 3, 2010, indicated that Complainant's presentation of the course material was disorganized and that she was unprepared. The AJ found D1's testimony suspect because the evidence showed that D1 solicited the information from the students to buttress his decision to terminate Complainant's employment. Further, the AJ found that D1 attempted to use B1's observations of Complainant's instruction of the same class to support D1's determination that Complainant's performance was deficient. B1, however, rated Complainant's performance as "meets and exceeds" on July 12, 2010, and also characterized Complainant's overall performance as that "expected of an instructor who had been with the Agency for less than a year." B1, the AJ found, considered Complainant to be not the best instructor, but not the worst instructor. Moreover, the AJ noted, B2 dismissed as insignificant the receipt of an occasional negative evaluation from a student. T2, a male instructor, the AJ found, received more negative critiques than Complainant as well as a lower rating from B1, but was never counseled, much less terminated, for his performance. The Letter also justified Complainant's termination based on Complainant's alleged pattern of tardiness. The AJ found the evidence showed that at D1's request, B3 wrote an electronic mail message describing a single incident that occurred in February 2010, where Complainant was late for class. The AJ noted that T3 did not find the incident to be significant enough to even report it in February 2010. Complainant's conduct related to her affair with E1 was confirmed to Agency management, the AJ found, after Complainant was compelled to provide a witness statement during the investigation of E1's conduct. The AJ found that Complainant's compelled admission to her sexual relationship with E1 was unnecessary inasmuch as Complainant had already been told she was being terminated by D1 and E1 had already resigned before Complainant was required to provide her statement. The AJ noted that E1 received no discipline for his conduct and his separation documents do not reflect any misconduct of any kind. The AJ found that Complainant established a prima facie case of discrimination based on sex when she was subjected to the actions described in her complaint. Specifically, the AJ found that from the time she was hired through June 2010, the evidence shows that Complainant was performing at a satisfactory level and that she was qualified for the position of Attorney Advisor. The AJ found that Complainant received a within-grade increase2 establishing that her work was at least at the fully acceptable level. The AJ noted that the evidence shows that Complainant's performance continued at the satisfactory level between the time she received the within-grade increase and August 6, 2010, when D1 determined that Complainant should be terminated. The AJ found that it was not Complainant's performance, but was her relationship with E1, that motivated D1 to terminate Complainant's employment based on her sex. The AJ found that E1 and Complainant are valid comparators in that they both engaged in the same conduct and were subject to the same policies regarding conduct. The AJ found that the Agency had no formal policy pertaining to sexual relationships between coworkers. The AJ considered that D1 found the relationship between Complainant and E1 disruptive to the workplace. The AJ found that the evidence showed the only disruption occurred after Complainant was notified she would be terminated and the Agency commenced its investigation into E1's conduct. The AJ found no evidence to support a different application of the Agency's policy regarding the identified inappropriate conduct (sexual relations) to employees of different positions or rank. The AJ determined that the Agency's treatment of E1 and Complainant for the same conduct was not the same and that Complainant was treated more harshly because of her sex. The AJ found that when D1 met with Complainant, D1 told Complainant she was being recommended for termination for performance related issues. The AJ found Complainant established that D1's reasons for terminating Complainant's employment were unworthy of belief and a pretext to mask sex discrimination. The AJ found that at best the items described in the Letter listed in support of her termination are gross mischaracterizations of events that actually occurred, but in some cases, were plainly false. The AJ noted that the evidence established that Complainant performed her duties satisfactorily and some of her coworkers regarded Complainant as an outstanding instructor. The AJ found D1 to be an non-credible witness, who evaded his own previous statements that contradicted his hearing testimony or retracted his own remarks. The AJ concluded that D1 held women to a different standard than men. Accordingly, the AJ found that Complainant was subjected to discrimination based on sex as alleged in her complaint. After conducting a hearing regarding her damages, the AJ ordered the Agency to provide Complainant with the following remedies: reinstatement; back pay and benefits; $200,000 in nonpecuniary damages; $200,000 in attorney's fees; a purge of all documents pertaining to Complainant's termination during probation from her Official Personnel File; restoration of sick and annual leave (as well as leave without pay) used in connection with her termination, and any additional denied pay; training for the responsible management officials; and the posting of a notice at the Agency describing the AJ's finding of discrimination. The Agency subsequently issued a Final Order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged and rejecting the AJ's award of nonpecuniary damages. Complainant did not file an appeal from the AJ's decision. CONTENTIONS ON APPEAL Agency's contentions on appeal On appeal, the Agency states that the AJ erred in finding that Complainant established a prima facie case of sex discrimination because she failed to identify any similarly situated employees who received preferential treatment. Specifically, the Agency states that E1 and Complainant are not similarly situated in that they hold different positions and general schedule grades. Even if they were similarly situated, the Agency states that E1 resigned before the Agency could terminate his employment, which Complainant could also have done had she wished to avoid the pain, humiliation, and record of termination after knowledge of her relationship with E1 became known to the Agency. The Agency further states that none of the other new instructors identified by Complainant as having similar performance or conduct issues (failing to monitor classes, dismissing class early, wearing inappropriate dress, arriving late, and providing child care in the office), were found to have engaged in a similar combination of conduct and performance issues for which Complainant was terminated. Additionally, the Agency states that the AJ erred in finding that lack of an Agency policy specifically prohibiting sexual relations in the workplace bars the Agency from dismissing an employee as unsuitable whose admitted and inappropriate conduct began within the first few months of her employment and afterwards disrupted the workplace through the time of her removal. The Agency states that the AJ's credibility determination regarding D1 is not supported by the record inasmuch as the inconsistencies between D1's testimony and that of other management witnesses are reasonable problems of recollection and confusion involving similar incidents. For example, whether D1 requested that B2 speak to Complainant regarding her performance and conduct issues first, or B2 offered to do so, D1 attributes to B2's confusion between the two instances in May 2010, when B2 spoke with Complainant. Such instances do not, the Agency argues, support a finding that D1 was not credible. Regarding the AJ's award of nonpecuniary damages, the Agency argues that the AJ's award is inappropriate inasmuch as Complainant herself disclosed her relationship with E1 to her coworkers and the AJ's award based on the humiliation Complainant suffered was of her own doing. The Agency states that the internal investigation into E1's conduct, which Complainant claims disrupted the office, long after the affair had concluded, was confidential and not a public proceeding. Additionally, the Agency notes that E1 implicated Complainant when E1 answered questions for the investigating officials. Those officials (D3 and C3), in turn, provided Complainant with an opportunity to provide her side of the story and defend herself in the course of the investigation. The Agency was not, as Complainant claims, the party publicizing Complainant's relationship with E1. The Agency notes that both E1 and Complainant boasted about their relationship to others. Complainant admitted that she confided in coworkers about her extramarital affair. The AJ's award does not take into consideration that Complainant and E1 were responsible for what Complainant described as FLETC-wide publication of her misconduct. Complainant's contentions on appeal On appeal, Complainant states that whether by the three-step analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or by inference, the AJ properly found that Complainant established a body of evidence demonstrating the same elements of discrimination based on sex. Specifically, Complainant showed that prior to the time D1 entered into the workplace in May 2010, Complainant was successfully performing the duties of her position under three different division chiefs, despite her conduct with E1. Complainant notes that B1, Complainant's branch chief (who was also previously Complainant's division chief), described Complainant's classroom performance as that to be expected from an instructor with less than one year of service. Complainant points out a myriad of statements made by D1 that were shown at the hearing to be false and unworthy of belief. Among the false statements contained in D1's Letter, is that B2 was Complainant's branch chief at the time he "counseled" Complainant regarding her performance and conduct. B2 was not a branch chief at that time, nor Complainant's supervisor,3 and D1 was forced to admit his error at the hearing. Additionally, both Complainant and B2 deny that B2 counseled Complainant on two occasions in May 2010. Complainant acknowledges they met briefly once, and in contrast to D1's (and the Letter's) portrayal of the meeting, neither Complainant nor B2 characterized that meeting as a "counseling." Additionally, neither Complainant nor B2 confirm the list of items recited in the Letter as being discussed during the conversation that occurred. B2 did not recall discussing Complainant's absence from her work station, speaking with E1, or Complainant's probationary status.4 Complainant further states that her participation in the CSI-FLETC is mischaracterized in the Letter as unauthorized. This statement proved to be false in light of the electronic mail messages Complainant exchanged with D1 regarding her objectives and participation. D1's contention that he was misled by Complainant is inconsistent with the documentary evidence. Complainant states that after August 6, 2010, when D1 told Complainant she was fired, D1 took considerable steps to cover his otherwise unsupportable decision to terminate Complainant for performance deficiencies. Complainant points out that despite repeated requests, the Agency failed to produce the two student critiques in which Complainant's performance was negatively evaluated. Complainant states the proper conclusion to draw from such an omission is that the critiques do not exist. Additionally, in D1's Letter, D1 describes a meeting with two of Complainant's students in which Complainant's performance skills are described as "horrible", yet neither student confirms describing Complainant's performance as horrible. Complainant points out that multiple witnesses confirmed Complainant's testimony that her relationship with E1 did not create a disruption in the workplace until after the Agency commenced its internal investigation and only after Complainant had been told she was fired on August 6, 2010, and as such could not be the reason D1 decided to terminate her. Complainant notes that the Agency never identified any complaining witness whose pre-August 6, 2010 complaint regarding E1's conduct precipitated the investigation, not even on appeal. Complainant notes the evidence shows that she had no performance deficiencies. E1, on the other hand, who was never told he would be fired, and never terminated, did have performance issues. Despite this, because he was male, E1 was not made the target of D1's "radar" for performance issues, never advised to document his work for D1, as Complainant was asked to do by B2, and not advised that his employment would be terminated. Complainant points out that B2 truthfully advised E1 (who actually had performance issues) that he was on D1's "radar" because of his relationship with Complainant. Complainant, on the other hand, who had no performance issues, was informed by B2 that she was under scrutiny by D1 for her performance. When D1 met with E1 on August 9, 2010, regarding his relationship with Complainant, E1 was only advised an investigation would be forthcoming, rather than being told he would be terminated, sent home, and retasked. E1, Complainant notes, was instead, returned to his normal duties. Complainant states that the real reason for the investigation into E1's conduct was to procure evidence to support Complainant's termination because the performance issues D1 described in the Letter did not exist and were a pretext to mask discrimination. Complainant requests the Commission affirm the AJ's finding of sex discrimination as well as affirm the remedies set forth in the AJ's Decision regarding damages. Additionally, Complainant requests an award of additional attorney's fees in the amount of $49,211.50 and costs in the amount of $60.00. 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. (November 9, 1999). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). As a preliminary matter, we find the Agency does not dispute the AJ's award of remedies other than nonpecuniary damages. We therefore confine our discussion to consideration of the AJ's finding of liability for sex discrimination and the AJ's nonpecuniary, compensatory damages award. Additionally, we observe that the AJ's Decision does not address Complainant's complaint insofar as it is based upon reprisal. Neither party, on appeal, challenges the Decision with respect to reprisal discrimination. Therefore, the claim of reprisal is not at issue in this appeal. We find that a determination that reprisal discrimination occurred or did not occur, would not impact the remedies awarded, and accordingly, we decline to adjudicate Complainant's complaint with respect to reprisal. We concur with the AJ's treatment of Complainant's complaint as one overall claim of discriminatory termination which is comprised of a series of steps taken by the Agency beginning on August 6, 2010, and culminating in Complainant's actual removal effective September 2, 2010. In the instant case, we find substantial evidence supports the AJ's finding that the Agency discriminated against Complainant as alleged. Specifically, we find the evidence supports the AJ's finding that the legitimate, nondiscriminatory reasons cited in the Agency's September 1, 2010 termination letter are unworthy of belief and a pretext to mask discrimination. Regarding Complainant's request for attorney's fees for the work in the instant appeal, Complainant should submit a statement of verified attorney's fees to the Agency pursuant to the attorney's fees order herein. We consider the following examples of incidents that appear among the reasons described in the Letter as the Agency's justification for Complainant's termination: Excessive absences We find the evidence shows that legal instructors were absent or late arriving to scheduled classes so commonly that the Agency had a procedure in place whereby the class lead would alert the Agency's administration that an instructor had not appeared and steps were taken to secure an instructor for the class. We find the evidence does not show that the occasions upon which Complainant was either late or unaccounted for in the office were excessive. We note, as does Complainant, that the one occasion upon which Complainant was observed being more than 15 minutes late for a class in February 2010, was so insignificant that it was not reported by the observing official, B3, until prompted to do so by D1 more than six months afterward. In his report, B3 claims Complainant's tardiness on that occasion was not an isolated incident but B3 fails to note any other incidents and the Agency produced no contemporaneous records verifying a pattern of excessive absences. We conclude that if B3 observed Complainant exhibit such a pattern, it was apparently too insignificant to document at the time. We find the February incident was not an issue until D1 became the division chief and only then after D1 decided to terminate Complainant's employment. We find substantial evidence supports the AJ's finding that it was not uncommon for male instructors to be late for class and none were counseled, disciplined, or terminated for the same conduct cited in the Letter. Child care in the office We find the evidence shows that the child of a male instructor, T1, was present in the workplace on more than a few occasions. We find no evidence that the presence of T1's child was an issue for the Agency, much less a matter for which T1 was subject to scrutiny of his work and personal life, discipline, or removal during probation. On the contrary, nothing in the evidence indicates that T1 was counseled, disciplined, or terminated for allowing his child in the workplace. We find Complainant was treated differently than T1 with respect to the presence of her children in the workplace. There was no evidence that Complainant's children were disruptive to the other instructors. We consider, specifically, B2's statement at the hearing wherein he said that he spoke with Complainant about her children because it could become an issue, and not that it had become an issue. We find that Complainant was not treated the same as T1 for the same conduct. We find the Letter's statement that Complainant provided child care to her children in her office during work hours is at best a gross exaggeration and mischaracterization of what the evidence shows actually happened. We find the evidence does not show that Complainant provided child care to her children in the office during work hours in non-emergency situations. Professional attire We find, as did the AJ, that whatever dress policy the Agency had was not enforced in the legal division where Complainant worked. We find substantial evidence shows that D1, as well as male instructors, did not maintain business casual attire in the office areas of the Agency. We find the evidence shows that Complainant's coworker, T2, was known to dress poorly to the point that Complainant assisted him by sewing buttons on T2's pants on occasion. T2, however, was never counseled, disciplined, or terminated during probation for his attire. We find Complainant was treated differently than T2 when she was instructed not to wear blue jeans in the office. Speaking with E1 We find substantial evidence shows that two male instructors, T1 and T2, often socialized with E1 at work, during lunch, and after work. We find that T1 and T2 were never counseled regarding the time they spent talking to E1, much less disciplined or terminated for fraternizing with E1. We find substantial evidence shows that to the extent the Letter cites the time Complainant spent speaking with E1 as a basis for her termination, Complainant was treated differently than instructors T1 and T2. Early class release We further find that the Letter's statement that Complainant's decision to release a class in Federal Criminal Law after one hour of instruction diminished the effectiveness of the training opportunity to be false. We find the testimony of multiple legal instructor witnesses confirmed that classes are often released early and that this particular class does not contain enough material to fill the allotted two-hour schedule. We consider, in particular, the statement of T7, who at the hearing verified that the Agency's material for the firearms course does not take the entire two-hour block of time to cover and that T7 would not be surprised that a class was released early. Student critiques We find the record void of evidence documenting the Agency's receipt of two written, negative critiques regarding Complainant classroom performance. Complainant states that the Agency failed to produce the student evaluations and we find the absence of evidence sufficient to undermine the Agency's reliance on them to show Complainant's performance was inadequate to the point she should be terminated during probation. We further note that the evidence shows the instructors received negative evaluations from students from time to time and that the Agency had no mechanism in place to address them with the legal instructors. Nothing in evidence indicates that student evaluations of Attorney Advisors were considered in the Agency's performance evaluations of even probationary instructors, much less as an indication of inadequate performance for which an instructor would be disciplined or terminated. We consider the Agency's challenge to an opinion concerning Complainant's performance provided by her coworker, T7. T7, the record shows, is a retired trial lawyer and former Army Officer who, after working with Complainant and observing her in class, opined that Complainant had no performance problems. The Agency, and specifically, D1, relies on reports of two student evaluations the Agency cannot locate, as well as interviews with two student witnesses. Those students, we note, deny describing Complainant's performance as quoted in the Letter. We find the Letter at best exaggerates the importance of student critiques and we find that despite receiving negative critiques from time to time, no evidence shows that male instructors were counseled, disciplined, or terminated for receipt of negative student evaluations. Complainant's relationship with E1 We concur with the AJ that E1 and Complainant were not treated the same and that because she was female, Complainant was treated more harshly than E1 by D1 for engaging in the same conduct. We note the Letter refers to and relies on Complainant's affidavit created on August 23, 2010, some 17 days after Complainant was told she would be fired and also obtained after E1 had resigned earlier in that day. Accordingly, we find that Complainant's statements about her relationship were acquired after D1 decided to terminate Complainant's employment, supporting Complainant's contention that the only purpose served by compelling Complainant to provide a statement was to support D1's decision and not to address the complaint of an unidentified employee. We find the evidence does not show that any of the "physical contact" between E1 and Complainant in the course of their affair occurred during work hours. We find, as did the AJ, that the Agency produced no evidence that any actions to terminate E1's employment were underway before E1 voluntarily resigned on August 23, 2010. E1 was not physically removed from the office, was not told he would be fired, and was not provided a letter of termination. E1 states that C3 requested instead that he continue to work through the time set for an inspection at the Agency. Upon his departure, D1 thanked E1 for his work and shook his hand. In sharp contrast, the evidence shows that D1 told Complainant she would be fired some 17 days prior to the time she was presented with the termination Letter. Complainant was immediately sent home on August 6, 2010, and her classroom duties were removed. She was reassigned to limited duties on August 9, 2010, and then directed to work from home the next day. Complainant returned to the office on August 11, 2010. Complainant was later compelled to provide a statement to internal investigators regarding her relationship with E1 on August 23, 2010, as noted. We find E1 and Complainant were not treated the same though they were subject to the same conduct policies and engaged in the same conduct. We find, as did the AJ, that several of the matters described in the Letter, if they occurred at all, were so insignificant that no report of their occurrence was made at the time the incidents occurred, Furthermore, other instructors were not counseled or disciplined for similar conduct though the occurrence in the workplace was not uncommon. We find D1's testimony to be unsupported by the documentary evidence and at odds with that provided by numerous witnesses including B2, T3, and T7. We find no basis and decline to disturb the AJ's finding that D1's testimony was not credible. We consider the Agency's contention that while other probationary instructors may have engaged in one or some of the same behavior for which Complainant was terminated, that the combination of conduct and performance issues cited in the Letter justifies the Agency's decision to terminate Complainant's employment. We find most of the acts described in the Letter rely upon the credibility of D1. We have identified the evidence in support the AJ's finding that the Letter's descriptions are in some cases false and in other instances greatly exaggerated. Most importantly, we find the credible evidence shows that Complainant did not have any performance issues. We find, as did the AJ, that Complainant presented sufficient evidence of pretext to support the AJ's finding that sex discrimination more likely than not motivated the Agency's actions. We find that substantial evidence supports the AJ's decision that Complainant was subjected to discrimination when she was terminated. Compensatory damages When discrimination is found, the Agency must provide Complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and nonpecuniary losses (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. § 1981a(b)(3). In a claim for compensatory damages, a complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm suffered; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Notice at 11-12, 14; Carpenter v. Dep't of Agric., EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence in support of a claim for nonpecuniary damages claims includes statements from complainant and others, including family members, co-workers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (hereafter referred to as "Notice"); Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Nonpecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. A proper award should take into account the severity of the harm and the length of time that the injured party suffered the harm. See Carpenter. EEOC Appeal No. 01945652. Finally, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). The Commission has reviewed the entire record, including the statements made by Complainant and witnesses, as well as extensive documentary evidence admitted into the record during the AJ's hearing regarding damages. We consider the witness statements describing the deterioration of her physical appearance and decline of her day to day happiness into a state of anxiety and desperation after Complainant was notified she was on D1's "radar". Complainant described as a result of the discrimination, her feelings of humiliation, emotional distress, anger, sense of helplessness and hopelessness, and the ultimate demise of her marriage that was able to withstand the prior revelation of Complainant's relationship with E1. We note the testimony of Complainant and witnesses who confirmed that Complainant experienced sleeplessness, weight loss, and visible damage to her skin and hair from the stress created by the Agency's actions. We also consider evidence pertaining to the emotional impact of Complainant's economic hardship caused by the discrimination. Complainant was the chief income earning parent for her children. Complainant described in detail: the difficulties she faced in locating work; her decision to relocate to find work; the impact discrimination had upon her relationships with her young children and friends; and the damage to Complainant's professional reputation among peers and prospective employers. The Commission finds the AJ's award of $200,000 is reasonable under the circumstances. This amount takes into account the severity of the harm suffered, the prior state of Complainant's marriage, and is consistent with prior Commission precedent. See, e.g *** v. U.S. Postal Serv., EEOC Appeal No. 0720120027 (Apr. 2, 2014) ($210,000 awarded where Complainant became deeply troubled, anxious, depressed, lonely, vulnerable, suspicious, mentally unfocused, highly emotional and volatile, with reduced self esteem, weight loss, hair loss, difficulty in sleeping and bouts of tearfulness, crying, dizziness, suicidal thoughts, and chest pains); Sebek v. Dep't of Justice. EEOC Appeal No. 07A00005 (Mar. 8, 2001) (awarding $200,000 in nonpecuniary damages for a complainant who experienced sexual harassment and assault from Agency management). CONCLUSION Based on a thorough review of the record, we REVERSE the Agency's Final Order and we find that the Agency discriminated against Complainant on the basis of sex. The Agency shall comply with the Order herein. ORDER The Agency shall take the following remedial actions: 1. Within 60 days of the date this decision becomes final, to the extent it has not already done so, the Agency shall reinstate Complainant to the position of Attorney Advisor that she previously held, or a substantially equivalent position, retroactive to September 2, 2010. The Agency shall provide Complainant at least 14 days to respond to the Agency's offer of reinstatement and if she accepts the Agency's offer, Complainant shall have three months to reenter on duty at the Agency. Complainant shall not be reinstated to a position within the chain of command of the Agency officials described herein as D1, the Division Chief, responsible for the discrimination found to have occurred. 2. Within 60 days of the date this decision becomes final, to the extent it has not already done so, the Agency shall pay Complainant nonpecuniary, compensatory damages in the amount of $200,000. 3. Within 60 days of the date this decision becomes final, to the extent it has not already done so, the Agency shall pay Complainant back pay from September 2, 2010, through the date she accepts reinstatement or tenders her declination of reinstatement to the Agency, in accordance with the Back Pay Act. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, 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 calendar days of the date the Agency determines the amount it believes to be due. The 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." 4. Within 60 days of the date this decision becomes final, to the extent it has not already done so, the Agency shall restore any sick leave and annual leave and reimburse Complainant for any Leave Without Pay (LWOP) she used as a result of the discrimination found to have occurred. Complainant shall cooperate with the Agency and provide documentation to support leave restoration in a timely fashion. 5. Within 60 days of the date this decision becomes final, to the extent it has not already done so, the Agency shall purge all documentation regarding Complainant's termination from Complainant's personnel and supervisory files. 6. Within 180 days of the date this decision becomes final, to the extent it has not already done so, the Agency shall provide 40 hours of EEO training to the responsible management officials, regarding their responsibilities under EEO laws, including sex discrimination and Title VII, and the prohibition against retaliation for protected EEO activity. 7. Within 180 days of the date this decision becomes final, to the extent it has not already done so, the Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Agency shall report its decision to the Compliance Officer, referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employment, then the Agency shall furnish documentation of their departure date(s). 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 Federal Law Enforcement Training Center (FLETC) in Glynco, Georgia, 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)), 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 August 7, 2014 Date 1 Complainant's letter of termination is dated and signed by the Agency and Complainant on September 1, 2010. Complainant's Notice of Personnel Action (SF 50) indicates her termination was effective September 2, 2010. 2 Complainant's within-grade increase was effective August 2, 2010, and authorized by D1. 3 One witness confirmed that in day to day operations, the Attorney Advisor legal instructors seemed to have multiple immediate branch chief supervisors (B1, B2, and B3) as well as division chief D1, who sometimes served as an immediate supervisor as well as a second level supervisor. 4 The record shows that Complainant's Notice of Personnel Action and initial appointment letter both specified that she was hired subject to a one-year probationary period. D1 and other Agency officials maintain that Attorney Advisors in Complainant's position are hired with a two-year probationary or trial period. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720130039 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720130039