U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aileen C.,1 Complainant, v. Mark Green, Administrator, Agency for International Development, Agency. Appeal No. 0120170399 Agency No. OCRD00114F DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the November 4, 2016 Final Agency Decision ("FAD") concerning an equal employment opportunity ("EEO") complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Legislative Technical Specialist for the Agency's Office of Strategic Planning and Operations ("SPO"), Asia and Middle East ("Asia and ME") Bureaus in Washington, D.C. On October 15, 2013, Complainant filed an EEO complaint alleging discrimination on the bases of disability (Parkinson's Disease) and age (67) when the Agency terminated her position as Senior Legislative Technical Specialist effective June 28, 2013. Complainant began working at the Agency in August 2006 as a Senior Legislative Technical Specialist for the Asia and ME Bureaus, a contract position, which was renewed every September.2 Complainant's first level supervisor ("S1") (age 51, disability status not specified) was the SPO Office Director, for the Asia and ME Bureaus. Based on the position description, Complainant's role was to, "[i]n conjunction with the SPO Office Director, proactively assist the Asia and ME Assistant Administrator and Asia and ME Office Directors and Mission Directors on maintaining an effective working relationship with Congress, and ensuring their programs were accurately represented to Congress." Her responsibilities ranged from clerical duties to complex legislative analysis related to "sensitive" congressional communications. Beginning in Fall 2012, Complainant's focus shifted from supporting S1 and management officials within the Asia and ME Bureaus, to almost exclusively supporting the Asia Bureau and the Asia Bureau Assistant Administrator ("AA") (age and disability status not specified). S1, at AA's request, assigned Complainant to take on the duties of an Asia Program Officer (a non-contract position). Typically, a Program Officer would be hired through the Legislative and Public Affairs Bureau ("LPA"), but LPA was experiencing a staffing shortage. In this role, Complainant worked closely with AA throughout the relevant time frame. In early 2013, Complainant, who had been diagnosed with Parkinson's Disease the previous year, experienced an increase in visible symptoms, including, but not limited to: a slight left hand tremor, slowed movement on her left side, diminished facial expressions, impaired dexterity, which impacted her handwriting, and impaired posture and balance, which markedly impacted her gait. The tone and volume of her voice was noticeably altered as well, and Complainant wore a wig due to hair loss caused by her condition. AA began asking how she was feeling and commented that she looked tired. Complainant did not discuss her diagnosis with her coworkers or with AA and S1, nor did she request an accommodation, as she did not feel that she needed one yet. She continued performing the full range of her duties and completing her assignments. Regardless, both S1 and AA acknowledge that they knew Complainant was experiencing a health issue. In addition to the visible symptoms, Complainant had an increased number of doctor appointments, and referenced a potential upcoming absence as she was seeking treatment at the Cleveland Clinic. On May 28, 2013, S1 notified Complainant that her position was to be terminated effective June 28, 2013, explaining that the Agency was realigning the Asia Bureau to meet budget constraints. Complainant offered to work part-time, and states that she would have accepted the same position at a lower level, but nothing was offered. Later that day, Complainant met with AA about an unrelated matter. The topic of her termination came up, and she alleges AA said, "[g]iven your state of health, this is a demanding job and we need someone who is stronger to do it." On June 4, 2013, Complainant received formal notice that her employment would be terminated on June 28, 2013 "due to the realignment of staff supporting the [Asia and Middle East Bureaus]." However, Complainant alleges that she was the only employee impacted by the realignment. For the last two weeks of June, Complainant trained two new contract employees, both about 40 years younger than her, how to fulfill some of the responsibilities of her position. On her final day working at the Agency, Complainant went to say goodbye to AA, who responded "solicitously," stating that Complainant "needed to concentrate on her health." Complainant alleges that AA again indicated that she did not think that Complainant was able to do the job. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge. Complainant timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). In its FAD, the Agency conceded, and the record supports the finding, that Complainant established a prima facie case for discrimination on the basis of disability. The Agency's principal management witness, S1, offered a legitimate, nondiscriminatory reason for the decision to terminate Complainant's position - citing, albeit without much detail, to the realignment of the Asia Bureau to address budgetary constraints. The burden of proof rests with Complainant to prove that this proffered reason for her termination masked the role disability discrimination played in the decision. In assessing whether or not she has met this burden, we find it appropriate to consider imposing an evidentiary sanction against the Agency for its failure to take adequate steps to secure the testimony of AA during the investigation. The Agency has a duty under 29 C.F.R. § 1614.108(b), to develop an impartial and appropriate factual record upon which to make findings on the claims raised by a written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. 29 C.F.R. § 1614.108(a). Ultimately, it is the responsibility of an agency's EEO Director to ensure that the claim(s) in an individual complaint are properly and thoroughly investigated. MD-110 Ch. 6, § III.A. Under 29 C.F.R. § 1614.108(c)(1), the parties have a duty to cooperate with the EEO investigator. It is well established that a complainant, agency, and any employee of a Federal agency shall produce such documentary and testimonial evidence as the EEO investigator deems necessary to properly develop the factual record. See EEOC Management Directive 110 ("MD-110"), Ch. 6, § XI (Aug. 5, 2015); Elston v. Dep't of Transportation, EEOC Appeal No. 0720050019 (Oct. 18, 2005). Failure of an agency witness to cooperate with an EEO investigator's request, without showing good cause, may result in sanctions imposed by the Commission on appeal. 29 C.F.R. §§ 1614.108(c)(3) and 1614.404(c). Here, the record reveals that the EEO investigator was thorough, and pursued affidavits from both S1 and AA. S1 promptly responded with a completed affidavit, but AA, who at that point was working for another Federal agency, did not. The investigator then notified AA that "failure to provide a manager's affidavit can be used by the EEOC to impose liability on the Agency for non-cooperation with an investigation." AA responded by email that she again declined to cooperate with the investigation, stating: "I neither supervised [Complainant] nor supervised or interacted with her [contractor] employer, I do not feel that the questions that you have asked me to respond to are pertinent or applicable to me." She copied the Agency's Acting EEO Director (presumably the EEO investigator's supervisor) and the Agency's General Counsel in case the EEO investigator required "additional guidance." The record contains no "additional guidance" from the Acting EEO Director or the General Counsel to either AA or the EEO investigator. The Agency's final decision (signed by the Acting EEO Director), acknowledged AA's failure to participate in the investigation, but concluded the evidence of record did not show that discrimination had occurred. Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. Unided States Postal Serv., EEOC 07A30133 (Jun. 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO process. Royal, EEOC Request No. 0520080052; Gray, EEOC Appeal No. 07A50030. Here, the Agency has not shown good cause for its failure to engage in further efforts to obtain AA's affidavit. There was ample indication in the record that AA's testimony constituted highly relevant evidence warranting investigative attention. Complainant notified the EEO investigator that AA was her "de facto" supervisor and alleged that it was AA, not S1, who was ultimately responsible for terminating her contact. She also alleged that AA specifically tied her termination to her disability when, in the context of a discussion about her termination, said that "[g]iven your state of health, this is a demanding job and we need someone who is stronger to do it." The EEO Counselor's report in this case states that during a phone call with the counselor, AA confirmed that she made comments about Complainant's health to Complainant in the context of Complainant's contract termination. Finally, in his affidavit provided during the investigation, S1 explicitly stated that, "I consulted with [AA] to seek concurrence for the termination of [Complainant's] position." Based on the conduct of the Agency in this case, we find that the imposition of sanctions is warranted for its failing to obtain AA's testimony, preventing Complainant from obtaining evidence in her favor. While it appears that at some point, AA moved to another federal agency, as a federal employee she retained her duty to respond during an EEO investigation. The Agency has provided no indication that it took any steps whatsoever, either through its EEO program or its General Counsel, to obtain the necessary cooperation of AA during the investigation. Therefore, as an evidentiary sanction under 29 C.F.R. § 1614.404(c)(2), we will presume that had AA submitted an affidavit, she would have admitted she was directly involved in the decision to terminate Complainant's position, as S1 testified (he sought her "concurrence" with the termination decision), and that Complainant's disability played a significant role in the decision to place someone else in the position ("we need someone who is stronger" to do the job). We conclude that, with the record evidence construed as such, Complainant has met her burden of proving that consideration of her disability played a decisive role in her termination in violation of the Rehabilitation Act.3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision, finding Complainant has proven she was discriminated against on the basis of her disability. We REMAND the complaint for further processing in accordance with the ORDER below. ORDER The Agency is ordered to take the following remedial action: 1. Reinstatement. If Complainant's contracting employer still staffs the relevant (or a substantially equivalent) position at the Agency, the Agency shall require that Complainant be reinstated to her former position or the substantially equivalent one. Complainant may decline the offered position, and her entitlement to back pay shall cease as of the date she declines the position. 2. Back Pay. Complainant is entitled to a back pay award, beginning from the effective date of her termination and continuing until she is reinstated to a position or declines an offer of one. If Complainant's contracting employer no longer staffs positions with the Agency to which Complainant can be reinstated, her back pay period shall end with the date this decision is issued. However, in such an instant, Complainant shall be entitled to a front pay award as indicated below. Within 60 calendar days after the date of this Decision, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due to Complainant, pursuant to 29 C.F.R. § 1614.501, was issued. 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 payment to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute regardless of whether she accepts the Agency's payment. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. Front Pay. If there is no position to which Complainant can be reinstated, she shall be entitled to one (1) year of front pay at the salary she earned while at the Agency, starting with the date her back pay award ends. 4. Compensatory Damages. Within 30 calendar days of the date of this Decision, the Agency shall notify Complainant that she has a right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within 45 calendar days of receiving the Agency's notice. Within 30 calendar days of receipt of Complainant's evidence (or when the 45-day limitation period has passed), the Agency shall complete the investigation on the claim for compensatory damages and issue a decision on the claim, with appeal rights to this Commission, in accordance with 29 C.F.R. § 1614.110.4 5. EEO Site Visit. Within 30 calendar days of this Decision, the Agency's EEO Director, shall contact the EEOC Office of Federal Operations, Federal Sector Programs, and request a technical assistance visit to discuss the EEO investigative process, including topics such as how to know if a witness's testimony is essential, and how to proceed when a witness is uncooperative. 6. Notify AA. Within 30 calendar days of the date of this Decision, the Agency shall provide a full copy of this decision to AA, accompanied by a cover letter explaining that she is receiving the decision by Order of this Commission. 7. Attorney's Fees and Costs. Complainant is entitled to attorney's fees under the Rehabilitation Act, as provided in the statement below this Order, entitled "Attorney's Fees." 8. Posting Order. As provided in the statement below, the Agency must post the Notice within 30 days of the date this decision is issued, and the Notice shall remain posted for 60 consecutive days. POSTING ORDER (G0617) The Agency is ordered to post at its Asia and Middle East Bureaus facility 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) 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 the date this decision was 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 (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 September 18, 2018 __________________ 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 Parties agree, and the record supports, that Complainant and the Agency had an employer-employee relationship for purposes of this complaint. 29 C.F.R. § 1614.103(a) and (c); EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, 2-25 and 2-26 (May 12, 2000). 3 In light of our finding of disability discrimination, we find it unnecessary to address Complainant's additional claim of age discrimination as she would not be entitled to any additional relief stemming from that claim. 4 Information on determining Compensatory Damages: EEOC MD-110, Ch. 11 § VII (Aug. 5, 2015) available at https://www.eeoc.gov/federal/directives/md-110_chapter_11.cfm, and N. Thompson, Compensatory Damages in the Federal Sector: An Overview, EEOC Digest Vol. XVI, No. 1 (Winter 2005) available at https://www.eeoc.gov/federal/digest/xvi-1.cfm#article (explains Carle v. Dep't of the Navy under the subsection "Proof of Damages"). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170399 10 0120170399