Trevor H., Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0720140023 Hearing No. 541-2010-00100X Agency No. 2009-22841-FAA-06 DECISION Following its January 22, 2013, final order, the Agency filed an appeal of an EEOC Administrative Judge's (AJ) finding that it engaged in discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Agency filed its appeal with the Commission on February 7, 2013. Complainant filed an appeal from the Agency's final order on February 20, 2013. For the following reasons, the Commission DISMISSES the Agency's appeal and AFFIRMS the AJ's decision (which became the Agency's final action). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Certified Professional Controller (CPC), at the Agency's Denver Air Route Traffic Control Center (Denver Center). A CPC is also known as an Air Traffic Controller. During the relevant time, Person A was the Denver Center's Operations Manager and Complainant's second level manager. Person B was the Air Traffic Manager at the Denver Center beginning in July 2008. Person C was a Front Line Manager at the Denver Center, supervising the "B crew" as Complainant's direct supervisor in 2008 and 2009. Person D was the Supervisory Management Support Specialist for the Denver Center. Employee X was a CPC who worked with Complainant in the Denver Center for over 15 years. Complainant filed a formal complaint of discrimination on September 24, 2009. At the conclusion of the investigation on his complaint, 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 and the AJ held a hearing on May 16 - 17, 2011. The AJ issued a decision on November 30, 2012. In her decision, the AJ defined Complainant's complaint as alleging that he was discriminated against and subjected to a hostile work environment on the bases of sex (male and sexual orientation) and in reprisal for prior EEO activity when: 1. On June 10, 2009, Complainant's request to have his schedule changed was denied. 2. Person A refrained from acting on Complainant's request for official schedule change. 3. On October 20 - 21, 2008 and October 23, 2008, Person D and Person A took adverse action against Complainant by including identifying photos, specific facts, and disclosure of disciplinary details unique to his prior EEO investigations in an EEO training PowerPoint presentation.1 4. On or before December 31, 2009, the Agency made an unjustified negative reference about Complainant, specific to his prior involvement in the EEO process, to Person C and the Agency advocated or encouraged increased surveillance of Complainant. The AJ's decision is summarized as follows. The AJ's decision found that in 2001, Complainant complained about some anti-gay comments in the control room. The AJ noted that after his complaint, the comments abated to an extent. The AJ noted that in 2007 and 2008, there were several additional homophobic or insensitive comments. The AJ stated that one manager complained about his "faggot" real estate agent and received counseling. The AJ found two managers were talking on one instance about how much time they spent together at work, one stating he spent more time with his co-manager than he spent with his wife. They started saying "who wears the dress" and mocking their "relationship." The AJ noted a former Operations Manager investigated the allegations. During the investigation, the two male employees denied the conversation and did not receive any counseling or discipline. Complainant approached a third manager to complain about the conversation and that manager did not pass Complainant's complaint up the chain of command. The AJ noted that several of the individuals involved received "refresher training." The AJ found that in March 2007, Complainant was assigned a "3/1/1" schedule several times, which involved assignments where one worked the morning shift, and then returned later the same evening to work again. The AJ noted that Complainant believed this was an EEO matter, given that the scheduler had made several anti-gay remarks in Complainant's presence. The AJ noted that the Agency stated that scheduling was within management's rights, but admitted the frequency with which Complainant was given these assignments was in error. The AJ recognized that the Agency credited Complainant with the midnight work, so that he would not be assigned those shifts for awhile. The AJ stated that in May 2007, Complainant filed an EEO complaint regarding the shift change and noting inappropriate sex/sexual orientation comments. The AJ noted that Complainant's complaint was dismissed. The AJ found that during the evaluation process for fiscal year 2007, Person A told Complainant's supervisor at the time, Person E, to redo his evaluation for Complainant to reduce his rating for an award. The AJ noted that Person E initially refused and was called into a meeting with Person A and the Facilities Manager. The AJ noted the Facilities Manager told Person E that he had observed a confrontation with individuals in Human Resources in which Complainant was rude and loud. The AJ explained that Person E responded that management could not hold it against an employee regarding a communication in which the employee was asserting his rights. The AJ noted that Person E stated that the Facilities Manager told him that he needed to change the rating "for the team" and when asked why, he responded that Complainant had created a lot of work for Human Resources. The AJ stated that management gave Person E 30 days to decide what he would do. The AJ noted that Person A stated that while the Facilities Manager did not give Person E a direct order to change the evaluation, he could understand how Person E could believe it was an order. The AJ noted that Person D stated that the Facilities Manager overheard Complainant say "shut the fuck up" in an operational environment and that is why he wanted Complainant's rating lowered. The AJ noted that Person E did not recall the Facilities Manager telling him Complainant made any such comment. The AJ stated that ultimately, Person E discussed the issue with Complainant because he felt management's instructions were ethically wrong. The AJ found Person E told Complainant that "management won't go for it" in reference to his recommendation that Complainant receive the highest award rating. The AJ noted that Complainant asked Person E if this was because of his EEO issues and Person E responded no, but yes. The AJ noted that Person E ultimately lowered Complainant's rating. The AJ noted that Person E supervised both Complainant and Employee X. The AJ noted that Person E described Complainant as having a great attitude and taking any assignment he was given without complaint. Person E stated Complainant "personified what FAA wanted" in an employee given his work on and off site. The AJ recognized that off site, Complainant worked with Metropolitan State College (Metro State) to create and teach a training program for air traffic controllers. In contrast, the AJ noted that Person E stated Employee X was a complainer. Person E stated the only personal conflict he experienced at the Agency was with Employee X. He described her as inflexible and a person who demanded that her way was the right way. Person E stated Complainant never received discipline or was ever suggested for it. However, he stated Employee X was involved in a number of Weingarten meetings and that a number of other employees agreed Employee X was a scary or threatening individual. Employee X got into an altercation with Co-worker Y and shoved him because of a disagreement over operational actions he took in moving airplanes. The AJ noted that when Co-worker Y reported this to management, management turned a blind eye, saying Employee X could not control herself because she was pregnant. The AJ stated that in July 2008, there was a serious incident involving graffiti on Complainant's locker and what appeared to be feces inside Complainant's locker. The writing scratched into Complainant's locker stated "Die fag" and "Got AIDS?" The AJ noted that Complainant reported the locker incident, and it was investigated as an Accountability Board (AB) matter, which was done confidentially. The AJ noted that a former Operations Manager at the Denver Center investigated the locker incident, although the accountable official was Person F (Acting Director of Operations), who worked from an office in the state of Washington. The former Operations Manager did not feel that specific identification of the substance in the locker was important, since it was clear that the intent was hurtful. The former Operations Manager declined to interview an individual who overheard Employee X say she had seen a similar incident at another workplace. The former Operations Manager explained that Employee X was not asked what she knew about the events because she did not state that she perpetrated the act at the other workplace. The AJ found that although aware of the option, the Agency declined to call federal marshals to investigate. The AJ noted that when someone poured an unknown liquid on another manager's car and damaged the paint, federal marshals were called in to investigate. The AJ also noted that in September 2008, when Complainant and several other employees reported screws in their tires, no investigation was conducted; nor were federal marshals contacted. The AJ noted that Complainant filed an EEO complaint regarding the locker incident. The AJ found that Complainant resolved the EEO complaint during mediation and agreed to move to another work area, effective January 4, 2010. The AJ stated that in October 2008, as a result of the settlement, the Agency provided training to supervisors regarding harassment. The AJ noted that in that training, the Agency used actual photos from Complainant's locker and the threats contained on the locker. The AJ stated that on May 27, 2009, Complainant was working with Employee X. The AJ explained that Employee X handed off a plane to Complainant, who climbed the plane. Employee X believed Complainant had committed an operational error and told Person G "I have an ax to grind with [Complainant]." Person G was so shocked by the intensity and hostility of the comment that he informed Complainant and their supervisor of the comment. Person G said he considered the comment, in the context, to be a threat. Complainant also considered the comment a threat of physical violence, particularly since Employee X had previously shoved Co-worker Y. The AJ found that Employee X also went to management and told Person C that Complainant had committed an operational error. Person C investigated and concluded Complainant had not committed an operational error. Person C notified Complainant of that finding and felt that resolved the issue. Person C asked Complainant if he had other issues, and Complainant replied that he had concerns about his safety due to Employee X. The AJ noted that Complainant suggested separating his schedule from Employee X's schedule, and Person C stated he did not think that would fly. The AJ noted that Person C reported the incident to his supervisor, Person A, and inquired if Complainant and Employee X could be separated. The AJ noted that Person A stated that could not happen because coverage was low. The AJ stated that a Union Representative discussed the threat from Employee X with Person A and asked why the parties could not be separated. The AJ found Person A stated that Complainant had been "rewarded enough" and he felt Complainant and Employee X should be expected to work together professionally. The AJ noted that Person A realized what he said was a mistake and admitted he was referring to Complainant's early release from the facility. The AJ noted the "reward" was part of a negotiated settlement of Complainant's prior EEO complaint. The AJ noted that Person A admitted he said he did not want to change Complainant's schedule because he felt Complainant had been given a benefit by allowing him to move ahead of others who waited on a list to be released. The AJ explained that unlike some workplaces, when an individual at the Denver Center wanted to leave and take a job at another facility, they cannot leave until they are released. The AJ noted that at the hearing, Person A tried to assert that the "reward" comment related to Employee X - which he did not want to reward her for her behavior. However, the AJ stated that Person A later admitted that it also related to Complainant being released early. The AJ noted that ultimately, Complainant wrote a letter asking that Person B, the new Operations Manager, separate him and Employee X. The request was denied. The AJ noted that Complainant continued to work with Employee X until she retired from the Agency in August 2009. The AJ found that Employee X bid for the "G crew" in July, which would have separated the two; however, management declined her bid. The AJ noted that Person C stated that he watched Complainant and Employee X, granted Complainant's requests for schedule change as much as possible, and tried to ensure the two were not next to each other so that they would not regularly engage in handing off aircraft. The AJ noted that Person B denied Complainant's request to change their schedules because he believed that to do so would violate the Collective Bargaining Agreement. In her decision, the AJ found Complainant established that he was subjected to retaliation when Person A declined to take action on Complainant's request for a schedule change because he believed Complainant had been "rewarded enough." The AJ noted that Person A admitted the reward he referenced was being allowed to leave the Denver Center ahead of others who have been waiting for a release date. The AJ noted that release agreement was part of a resolution of a prior EEO complaint The AJ noted that while there were a number of anti-gay comments and acts at the Denver Center, Complainant did not show that sex discrimination motivated any of the decision makers in the decision not to separate Complainant and Employee X. The AJ noted Person A, Person C, and Person B all presented reasons why they chose not to separate the two, and Complainant did not establish that the real reason for the action was sex. The AJ determined that the training mentioned in issue (3) was required by the settlement, which created a nexus. The AJ noted that Person D believed not using Complainant's name protected his confidentiality, and she felt managers needed to know the seriousness of some of the actions at the facility. The AJ determined Person D did not intend to retaliate in providing training and found no evidence that Person A intended to retaliate with regard to the training. The AJ noted Person D's testimony reflected an intent to do the right thing and found her credible. The AJ noted Person A was a minor player in developing the training and found no evidence he intended to retaliate. The AJ noted that Complainant alleged that there was a hostile work environment based on sex at the Agency. The AJ found the atmosphere at the Denver Center was replete with comments reflecting the rejection of non-stereotypical male activity, such as getting married to a man or acting effeminately. The AJ found there were regular and ongoing comments denigrating in particular gay men. The AJ concluded the comments were pervasive enough that there was a hostile work environment for Complainant from 2008 forward. Moreover, the AJ found the Agency failed in its responsibility to take prompt remedial action. In addition, the AJ found the negative sex stereotypes also contributed to the Agency's response to Complainant's complaint of a threat. The AJ noted Complainant never had any problems in getting along with others and always received praise in evaluations for his "team" spirit and his ability to maintain professionalism in difficult circumstances. However, the AJ noted Complainant's harasser had been counseled several times for her abusive behavior to Complainant, and was a suspect in the locker "incident." The AJ noted that despite his stellar work record and his documented ability to get along with most people, Complainant was treated as if he contributed equally to creating the situation where Employee X threatened him. The AJ again stated the Agency failed to take strong action to protect its employees. The AJ noted the Agency did nothing more than to tell both employees to behave professionally. The AJ also noted that the Agency felt clearing Complainant of the allegation of operational error was all that was needed. The AJ also noted that while she could not conclude that the use of actual photographs of the threats and harassment against Complainant was retaliatory, the total insensitivity to how the dissemination of this information would affect Complainant was shocking. The AJ determined this lack of care and understanding contributed to the hostile work environment, since Complainant felt, not unreasonably, that all the supervisors would make the connection between the photographs and himself. Further, the AJ stated that essentially no evidence was presented regarding the events of December 31, 2009, and whether Complainant was surveilled by management. The AJ stated the lack of evidence led her to conclude that Complainant withdrew that issue from consideration. The AJ ordered the Agency to take the following actions: 1. Pay Complainant $50,000 in compensatory damages. 2. Provide training to managers, supervisors, and human resources employees, with regard to the prohibitions against discrimination and retaliation under Title VII, the ADEA, or the Rehabilitation Act. In addition, provide training to managers, supervisors, and human resources employees on how to appropriately provide training and how to investigate claims of discrimination. 3. Prominently post the attached Notice of this finding of discrimination, pursuant to 29 C.F.R. § 1614 at all FAA offices in Colorado. The notice shall remain posted for six months or the pendency of any appeal decision, whichever is longer. 4. Pay Complainant $22,625 in attorney's fees and $1,985.71 in costs. 5. The Agency shall comply with EEOC regulations regarding providing Complainant interim relief in the event the Agency appeals this decision. On December 18, 2012, the AJ issued an Order to Amend Hearing Decision to Correct Clerical Errors. The AJ noted her decision was amended to correct two clerical errors and "reissued, nunc pro tunc to November 30, 3012." The Agency subsequently issued a final order on January 22, 2013. The Agency rejected the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. The record reveals that the Agency's final order was sent to Complainant, Complainant's attorney, and the AJ. The present appeal followed. A review of the record reveals that the first correspondence the Agency sent the Commission's Office of Federal Operations (OFO) was a letter dated February 7, 2013, regarding Notification of delay of interim relief pending the Agency's appeal of the AJ's decision. The postmark was illegible on this mailing; however, it was stamped as received by the Commission on February 12, 2013. In addition, the record reveals that the Agency served OFO with a copy of its brief supporting its appeal of the AJ's decision which was postmarked February 11, 2013. In response to the Agency's appeal, Complainant argues that the Agency's final order and appeal were untimely. In addition, Complainant requests the Commission reconsider his claim regarding the training PowerPoint presentation and whether it constituted reprisal. Complainant argues that substantial evidence supports the AJ's findings of discrimination. Complainant claims the number and severity of incidents, when viewed together, provide substantial evidence of a failure to take any corrective action that would stop the hostile treatment. Rather, Complainant stated the only thing that stopped the conduct was his departure from the ARTCC facility on January 4, 2010. Finally, Complainant requested an increase in compensatory damages. Complainant states that in his case, the extreme nature of the hostile acts, and the blatant refusal of the Agency to take corrective action combined with the enormous stress placed on Complainant of working in an environment where a mistake would result in the loss of human life, create a situation appropriate for a larger compensatory damage award. Moreover, Complainant stated a transfer was the only way for him to escape the hostile environment which he stated required retraining and meant he had to give up a teaching position at Metro State which he had been doing since 2007. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.110(a), an agency is required to take final action on a complaint by issuing a final order within 40 days of receipt of the hearing file and the AJ's decision. If an agency decides not to fully implement the decision of an AJ, the agency must issue a final order and simultaneously file an appeal with the Commission in accordance with 29 C.F.R. §1614.403. Id. If the agency does not issue a final order within 40 days of receipt of the AJ's decision, then the AJ's decision will be become the final action of the agency. See 29 C.F.R. § 1614.109(i). Agency Appeal In the present matter, we find that the Agency did not file its appeal with the Commission in a timely manner. The Agency claims and the record reveal that the AJ's decision was received at the Agency's Office of Civil Rights on December 11, 2012. A review of the AJ's decision reveals that the Agency was properly advised that it had 40 days after receipt of the AJ's decision to file its appeal with the Commission. We note that the AJ's decision provides the Agency with the correct address for mailing and hand delivery, as well as the Commission's facsimile number. Although the AJ subsequently issued an Order to Amend her decision, we note the changes to the decision were clerical in nature. In addition, the Order to Amend did not say the time frame for the Agency to file its appeal was extended. Moreover, we note that on appeal the Agency does not claim that the Order to Amend affected its time frame for filing an appeal with the Commission. The earliest the Agency can be considered to have filed its appeal is on February 7, 2013, which is beyond the 40-day time limit. Thus, the Agency's appeal is dismissed as untimely filed and the AJ's decision became the final action of the Agency. The findings of discrimination by the AJ are thus not at issue in this decision. Complainant's Appeal 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). The Commission has found that lesbian, gay, bisexual, and transgender individuals may bring claims of discrimination under Title VII in certain circumstances, including sex stereotyping. See Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Baker v. Social Security Admin., EEOC Appeal No. 0120110008 (January 11, 2013); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011)). At the outset, we note that Complainant does not object to the definition of the complaint as defined in the AJ's decision. In addition, we note Complainant does not challenge the AJ's determination that due to the lack of evidence presented issue (4) was withdrawn from consideration. Rather, on appeal, Complainant requests the Commission reconsider his claim that the training PowerPoint presentation constituted discrimination based on retaliation. Upon review, we find the AJ properly determined that Complainant failed to establish that the October 2008 PowerPoint training present to ARTCC Denver Center managers constituted discrimination in retaliation for prior protected activity. The record reveals that Person A's role was minor in developing the training. Person A stated that his role was to review old EEO briefings and EEO Orders to help Person D with the slides for the PowerPoint presentation. Person A also stated that he reviewed the final PowerPoint for editing purposes. Person A stated that Person D used the photos and language in the presentation "as a powerful statement that this stuff's got to stop." The record shows that Person D believed not using Complainant's name protected his confidentiality, and she felt managers needed to know the seriousness of some of the actions at the facility. In addition, we note that the PowerPoint training included examples of inappropriate actions taken against other unnamed employees, in addition to the incidents involving Complainant. We find the AJ properly determined the record did not show that Person D or Person A intended to retaliate against Complainant in providing the training. In addition, we note that during the hearing when Complainant was asked whether he thought the PowerPoint training was "intended to be retaliatory," Complainant stated that he "wrestled with that" and stated he termed it "reckless." We do not find the training in this instance would reasonably deter an individual from pursuing the EEO process. Management, even apart from EEO training, could reasonably want to make other management aware of the serious nature of inappropriate actions that had been ongoing in the office. Damages Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for post-Act pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. See West v. Gibson, 527 U.S. 212 (1999). In this regard, the Commission has authority to award such damages in the administrative process. Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief. To receive an award of compensatory damages, complainant must demonstrate that he has been harmed as a result of the agency's discriminatory action, the extent, nature, and severity of the harm and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 11, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) ("Guidance"). Nonpecuniary damages are available to compensate an injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because complainant is a victim of discrimination. Guidance at 5. The existence, nature, and severity of emotional harm must be proved. Id. We note that for a proper award of nonpecuniary damages, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). Finally, we note that in determining nonpecuniary, compensatory damages, the Commission has also taken into consideration the nature of the Agency's discriminatory actions. See Utt v. U.S. Postal Service, EEOC Appeal No. 0720070001 (March 26, 2009). In Carle v. Dep't of the Navy, the Commission explained that evidence of nonpecuniary damages could include a statement by complainant explaining how she was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. However, evidence from a health care provider is not a mandatory pre-requisite to establishing entitlement to nonpecuniary damages. Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (September 19, 1996). We find that Complainant has presented sufficient evidence to establish that the Agency's actions caused him stress, frustration, fear management was out to get him, and concern that his career prospects were diminished after he agreed to take a transfer to avoid the hostile work environment. We reject Complainant's contention that he should be awarded damages due to the enormous stress placed on Complainant of working in an environment where a mistake would result in loss of human life. After careful consideration of the evidence of record, we find an award of $50,000 for nonpecuniary, compensatory damages by the AJ was appropriate. This amount takes into consideration the severity of the harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. De Los Santos v. Environmental Protection Agency, EEOC Appeal No. 0120091233 (July 12, 2012) (Complainant subjected to harassment awarded $50,000 for mental anguish, anger, fright, resentment, frustration, loss of self esteem, irritability, humiliation, embarrassment, anger, betrayal, anxiety, stress, decreased energy, depression, headaches, upset stomach, numbness in limbs, and damage to his character and reputation); Marshall v. Dep't of Justice, 0720080008 (November 5, 2009) (Complainant subjected to retaliatory termination awarded $50,000 for embarrassment, sleeplessness, crying a lot, sleeplessness, lost her "dream job," and lost her professional standing), request for reconsideration denied, EEOC Request No. 0520100158 (May 28, 2010). Accordingly, we conclude that an award of $50,000 will adequately compensate Complainant for the harm he suffered as a result of the Agency's actions. Moreover, to the extent Complainant is requesting pecuniary damages for his after work teaching job at Metro State, we find he failed to provide sufficient documentary evidence to support such a claim. Specifically, we note Complainant did not provide any documentation of the wages he claimed to have lost as a result of the Agency's actions. Thus, we deny any claim for pecuniary damages. We shall also order the Agency to comply with the other remedies provided by the AJ as slightly modified in our Order. CONCLUSION Accordingly, the Agency's appeal is DISMISSED as untimely filed. The AJ's finding that Complainant was unlawfully retaliated against regarding issues (1) and (2) and subjected to a hostile work environment based on sex is AFFIRMED. The AJ's finding of no discrimination based on sex with regard to issues (1) and (2), and the finding of no discrimination based on retaliation with regard to issue (3) is AFFIRMED. The matter is REMANDED for compliance with the Order herein. ORDER To the extent it has not already done so, the Agency shall take the following actions: 1. Within 60 days of the date this decision becomes final, pay Complainant $50,000 in compensatory damages. 2. Within 180 days of the date this decision becomes final, provide training to all managers, supervisors, and human resources employees at the Denver Air Route Traffic Control Center, with regard to the prohibitions against discrimination and retaliation under Title VII, the ADEA, EPA, GINA, and the Rehabilitation Act. This training shall be conducted by qualified EEO personnel. 3. Within 60 days of the date this decision becomes final, pay Complainant $22,625 in attorney's fees and $1,985.71 in costs. 4. Within 60 days of the date this decision becomes final, the Agency shall consider taking disciplinary action against Person A for discriminating against Complainant and any other Agency employees responsible for the discrimination perpetrated against Complainant. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Denver Air Route Traffic Control Center facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 July 24, 2014 __________________ Date 1 This claim is based solely on retaliation. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 07-2014-0023 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720140023