U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lois G.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120151972 Hearing No. 480-2012-00624X Agency No. HS-ICE-01143-2011 DECISION On May 15, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's April 10, 2015, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant at the Agency's Office of Principal Legal Advisor in San Diego, California. On July 1, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) when: 1. She was subjected to sexual harassment. In support of her claim, Complainant alleged that the following events occurred: a. On August 12, 2010, a male coworker (CW1) inappropriately touched Complainant. b. Subsequent to August 12, 2010, CW1 began text messaging and calling her personal cell phone. c. On August 25, 2010, CW1 inappropriately touched and groped Complainant. d. In September and October 2010, CW1 repeatedly offered Complainant use of his car. e. On October 15, 2010, CW1 asked, "are you going to hit me?" f. On March 22, 2011, CW1 "loudly" commented, "You've got to remove this hex from me." g. On March 30, 2011, CW1 commented to Complainant that she was "probably gonna get me fired." h. On April 18, 2011, CW1 asked Complainant if she was "gonna hit" him. i. On April 19, 2011, CW1 asked Complainant to join him at a baseball game. 2. Complainant also alleged that she was subjected to retaliatory harassment. In support of her claim of retaliatory harassment, she alleged the following events occurred: a. On October 8, 2010, a female coworker (CW2) spoke to Complainant in a "stern" manner. b. On October 25, 2010, another female coworker (CW3) was snappy with her; c. On October 28, 2010, CW3 scoffed at Complainant. d. On November 11, 2010, another female coworker (CW4) hollered at her. e. On December 21, 2010, CW3 sent Complainant a "bitchy" email. f. On December 23, 2010, CW4 shouted and yelled at Complainant. g. On February 9, 2011, CW4 yelled at Complainant. h. On March 1, 2011, CW4 refused to switch lunch breaks with Complainant. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on October 21 and 22, 2014, and issued a decision on February 13, 2015. The AJ found that Complainant established her claim of sexual harassment by CW1. The AJ determined that Complainant was a credible witness based on her demeanor, specific testimony, consistency between her written affidavit and her testimony, and reaffirming testimony from other witnesses. Further, the AJ held that Complainant credibly testified that she reported the events over time to the Supervisor and the Chief Counsel. And it was the Agency officials who failed to take appropriate action to deal with the situation. As such, the AJ concluded that the Agency was liable for the sexual harassment created by CW1. Specifically, the AJ found that Complainant had accepted the invitation of CW1 to have drinks with him on August 12, 2010. After the event, he drove her home and attempted to kiss her. She rejected his advances. CW1 then grabbed Complainant's cheeks with his hands and kissed her several times on her lips and face. Complainant immediately made it clear that his advances were inappropriate and unwelcomed. On August 13, 2010, Complainant went to CW1's office and told him that his behavior the night before was inappropriate and she did not welcome his advances. She indicated that he apologized and said he knew that he had "crossed the line" and that it would not happen again. She said she believed him at the time. On August 25, 2010, Complainant accepted a ride home from CW1 after they had dinner together. The AJ found that he walked Complainant into her apartment and asked to come in, but she refused. However, the AJ found that when she unlocked the door, he pushed her from behind, causing them to fall on her bed which was located near the door. He lay on top of her, pinning her to the bed. He groped her and attempted to kiss her and remove her clothes, despite her repeated requests for him to stop. Complainant escaped from his grasp, got off the bed and convinced him to leave. On August 30, 2010, Complainant went to her supervisor ("Supervisor") and told him of the interactions with CW1. The AJ noted that Complainant and the Supervisor had different impressions of the conversation. Complainant said she told the Supervisor exactly what had happened in detail, and got emotional when doing so, and he said he would talk to CW1 about his conduct. However, the Supervisor stated that Complainant just casually mentioned that she had gone out for drinks with CW1 and he was "too forward" and was "touchy feely", but did not really indicate that she was complaining or wanted something done. Nevertheless, the Supervisor told Complainant to report the conduct to the Agency's Joint Intake Center, one of the avenues available to Agency's employees for reporting sexual harassment. The AJ specifically found that Complainant's version of this event more likely and accurately described the nature of her disclosure to the Supervisor. A day or two later, the Supervisor did discuss the matter with CW1 and instructed him to only approach Complainant for work-related matters and not on a social basis. In September 2010, Complainant experienced some ongoing car trouble, and said the CW1 persisted in offering to lend her one of his cars, despite Complainant's continued refusal to accept his offer. Complainant believed the offer was an attempt to engage with her socially again. On September 30, 2010, after the fifth offer of a car, Complainant complained to the Chief Counsel about the unwelcomed advances and asked that he address the CW1. The Chief Counsel said he would talk to CW1, but the AJ found no evidence that he ever did. On October 1, 2010, Complainant also told the Supervisor about CW1's continued unwelcome offers of a car. He said he would talk to CW1 again. According to Complainant after she reported CW1's conduct to management, he continued to offer his car and even money to Complainant. He also commented, "Are you going to hit me?" which he said over 5-10 times to Complainant over months. On October 18, 2010, Complainant met with the Supervisor about the more recent incidents with CW1. The Supervisor indicated that he would talk to CW1 about the issue. Again, the Supervisor said he met with CW1 and told him to stop offering Complainant a car or money and to only have contact with her regarding work-related matters. However, Complainant said that CW1 continued to have contact with her. She said that in March 2011, CW1 exclaimed loudly to her at work, "You have to remove this hex from me!" Complainant told the Supervisor about the incident. At the end of March 2011, CW1 approached Complainant and other coworkers stating that she was "probably going to get me fired." In April 2011, CW1 followed Complainant as she walked to the train station after work and asked if she wanted to go to a baseball game with him. She refused and told him to leave her alone. She again complained of the incident to the Supervisor, who again met with CW1 and told him to leave Complainant alone. He also reported the matter to the Chief Counsel. On May 16, 2011, the Women's Coordinator (Coordinator) of the local union notified management of Complainant's allegations of sexual harassment, including the sexual assault. Initially, the Coordinator requested a transfer for Complainant. However, on May 27, 2011, the Chief Counsel relocated CW1 to a different building and he was no longer in contact with Complainant. There is no evidence of further harassment after his transfer. Following Complainant's complaint of sexual harassment, Complainant asserted that several coworkers (CW2, CW3, and CW4) began harassing her in retaliation for complaining about CW1's conduct. However, the AJ determined that there was no evidence to support a finding that CW2, CW3 and CW4 were aware of Complainant's claims of harassment by CW1. Further, the AJ noted that the events alleged were not sufficient to establish a hostile work environment. Therefore, the AJ concluded that Complainant was subjected to sexual harassment, but not retaliatory harassment. The AJ then ordered relief. With regard to compensatory damages, the AJ noted that Complainant testified that due to the harassment, she experienced feelings of depression, fear and hopelessness. She also experienced anxiety, sleep problems, weight loss, avoidant behavior, inability to concentrate, hypervigilance, and exaggerated startle response. She also expressed suicidal thoughts, but the AJ noted that she was inconsistent in her testimony about whether she experienced them on more than one occasion and did not disclose this information in her deposition. Complainant noted that the symptoms began in August 2010 and continued until she left the Agency in November 2012. Complainant indicated that she sought professional medical help, but provided no evidence on the length of treatment or if it continued. The AJ noted that Complainant attributed half of the emotion distress to the retaliatory harassment and half to the sexual harassment. Based on the evidence provided by Complainant and the Commission's awards in similar cases, the AJ awarded Complainant $55,000, but reduced the award in half to reflect the harm related to CW1 as opposed to the retaliatory harassment. Therefore, the AJ concluded that Complainant was entitled to $ 27,500 in non-pecuniary damages. The AJ turned to Complainant's entitlement to attorney's fees and costs. Complainant's attorney requested a rate of $ 250 per hour for her current Attorney (Attorney 2) and a rate of $ 450 for her prior Attorney (Attorney 1). The AJ found that Attorney 2 had supported his rate. However, the AJ found that Attorney 2 did not provide sufficient explanation for the higher hourly rate for Attorney 1. Therefore, the AJ found that Attorney 1 was also entitled to a rate of $ 250 per hour. The AJ then found that the hours expended needed to be reduced because of Complainant's unsuccessful claim of retaliatory harassment. The AJ noted that the claim of retaliatory harassment was distinct and involved different individuals. The AJ reviewed the transcript and noted that 70% of the hearing involved Complainant's claim of sexual harassment and 30% involved her claim of retaliatory harassment. Therefore, the AJ determined that Attorney 2's hours expended was 59.0 less 30%, or 41.3 hours at a rate of $ 250. Therefore, the AJ awarded Complainant $ 10,325 for Attorney 2. As for Attorney 1, she included hours expended on another hearing request which was dispensed with via summary judgment in the Agency's favor. Therefore, the hours expended on that matter were excluded from the billing statements. The AJ reviewed the record and found that Attorney 1 expended only 2.6 hours on the successful claim here in at a hourly rate of $ 250. Therefore, the AJ awarded Complainant $ 650 for Attorney 1. Finally, the AJ awarded legal costs to Complainant. Complainant submitted documentation totaling $ 216.16 for copying and mailing. The AJ applied the same 30% reduction and found that Complainant was entitled to costs in the amount of $ 151.31 for Attorney 2. As for Attorney 1, for the instant matter, Complainant only incurred $ 2.20. The AJ reduced the amount in half for $ 1.10. Therefore, the AJ awarded Complainant $ 152.41 in costs. The AJ additionally ordered the Agency to provide management training with an emphasis on addressing harassment. Finally, the AJ ordered the Agency to post a notice regarding the finding of discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. Complainant appealed asserting that the AJ's decision failed to provide her with sufficient remedy. Complainant argued that she experienced suicidal thoughts from CW1's attempted rape. She also attributed all of the harm to the sexual harassment she experienced and the feeling that permeated through that office for months while the harassment was occurring. As such, she requests that the 50% reduction of non-pecuniary damages should be rejected. In addition, Complainant claimed that she was not asked to provide supplemental documentation to the record regarding her claim for any other compensatory damages such as pecuniary damages. In addition, had the AJ held a separate hearing on damages, she would have additional witnesses to bolster her claim. As such, Complainant believed she is entitled to more than the $ 27,500 in non-pecuniary damages. Further, Complainant included a long list of medical expenses for patient visits and prescriptions. As such, Complainant requested that the Commission either augment her claim for compensatory damages or remand the matter back to the AJ for the opportunity to further develop the record. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). We note that neither Complainant nor the Agency contests the conclusion that she was subjected to sexual harassment for which the Agency is liable, but not to subsequent retaliatory harassment. We concur that the evidence of record fully supports the AJ's conclusions in this matter. Therefore, the only issue on appeal is the AJ's award of compensatory damages. Complainant asserted that she was never provided the opportunity to supplement the record with additional documentation and statements from witnesses regarding her entitlement to an augmentation of award of non-pecuniary damages and to pecuniary damages.3 We are not persuaded by Complainant's argument regarding the AJ's failure to provide her with additional time to develop the record regarding her claim for compensatory damages. We note that Complainant had ample time to provide the documents regarding medical expenses and affidavits from family members and friends regarding her entitlement to compensatory damages. The complaint had been investigated by the Agency; following the investigation, Complainant requested a hearing before the AJ who presided over an additional discovery period and two-day hearing. Furthermore, Attorney 2 could have petitioned the AJ to bifurcate the hearing process into a hearing on the claims of harassment. Only after a finding was made, the hearing process would have proceeded with development of the record regarding remedies. Finally, on appeal, Complainant could have proffered what the witnesses could have provided in terms of evidence but failed to do so. As such, we conclude that Complainant had been given ample opportunities to develop and document the record with evidence regarding pecuniary and non-pecuniary damages. The AJ awarded Complainant $55,000 citing the harm suffered by Complainant, the length of time she experienced the harm and Commission case precedent. The AJ then reduced the award in half citing to Complainant's assertion that the retaliatory harassment contributed to the emotional harm she experienced. We note that the AJ correctly indicated that Complainant claimed that her emotional harm was in part due to the alleged retaliatory harassment. However, we find that the greater harm was caused by the sexual harassment Complainant experienced. The retaliatory harassment alleged involved isolated events which, accordingly to Complainant's testimony demonstrated of lack of civility on the part of CW2, CW3 and CW4. However, the sexual harassment caused by CW1 included sexual assault, kissing, and physical touching. It is more reasonable to find that Complainant's experience with anxiety, exaggerated startle response, avoidant behavior, hypervigilance, and thoughts of suicide were related to the conduct of CW1 rather than the slights caused by CW2, CW3, and CW4. In addition, the cases cited by the AJ in which the Commission awarded $ 45,000 to $ 65,000 involved similar harm and types of harassment as engaged by CW1. Therefore, we find that the AJ's award of $55,000 is supported by the record without a reduction. See Viers v. U.S. Postal Serv., EEOC Appeal No. 01A14246 (June 20, 2002) (awarding $60,000 to Complainant who experienced fatigue, insomnia, loss of marital harmony, apprehension, anxiety, loss of self-esteem, feelings of isolation, fear, depression, worry, humiliation, embarrassment, became withdrawn due to sexual harassment). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order and REMAND the matter in accordance with the ORDER below. ORDER (C0610) Within ninety (90) calendar days of the date this decision is issued, the Agency is ordered to take the following remedial action if it has not already done so: I. The Agency shall pay Complainant $ 55,000 in compensatory damages. II. The Agency shall pay $10,975 in fees to Complainant for the services of Attorney 1 and Attorney 2. III. The Agency shall pay Complainant $ 152.41 for legal costs. IV. The Agency is directed to provide CW1 with a minimum of 24 hours of sexual harassment prevention training. The Agency shall also provide at least 8 hours of training to the Supervisor and Chief Counsel, who have been found to have failed to properly address the harassment when it was reported to them, focusing on their management responsibilities for preventing and dealing with discriminatory harassment. V. The Agency shall consider taking disciplinary action against CW1, the Supervisor, and the Chief Counsel, identified as being responsible for the discriminatory harassment and failing to address the harassment perpetrated against Complainant. The Agency shall report its decision. 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. 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 (G1016) The Agency is ordered to post at its Office of Principal Legal Advisor in San Diego, California copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/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 being issued. 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 (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610) 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. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations June 8, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The Agency re-issued the final order on April 13, 2015. 3 We note that Complainant did not challenge the AJ's award of fees and costs to Attorney 1 or Attorney 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151972 10 0120151972