U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Meghann M.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0720150028 Hearing No. 531-2010-00007X Agency No. HQ-08-0461-SSA DECISION The Agency filed its Notice of Appeal, following the issuance of an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge's (AJ) February 11, 2015 decision on liability and damages, and the AJ's April 16, 2015, final order on damages and attorney's fees. The Agency's appeal constituted its final order. The Agency's Notice of Appeal specifies the date of the agency final action as June 1, 2015, which was also the date of its appeal. Complainant filed a cross-appeal with regard to the issue of damages. We accept the appeals from the AJ's decisions, pursuant to 29 C.F.R. § 1614.405(a).2 Both appeals are encompassed by, and referenced as, EEOC Appeal No. 0720150028. On appeal, the Agency requests that the Commission affirm its rejection of the AJ finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Agency also argues that the AJ erred in sanctioning the Agency for its failure to produce a witness. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. Specifically, the AJ ordered Complainant's reinstatement, compensatory and pecuniary and non-pecuniary damages. Complainant asks that we increase the amount of damages in the light of delay in obtaining the relief. For the following reasons, we REVERSE the Agency's final action and AFFIRM the AJ's final order and remand this matter for relief. ISSUES PRESENTED The issue is whether the Administrative Judge's decisions finding discrimination and awarding relief, following a two-day liability hearing and subsequent relief hearings, are supported by the record. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Director for the Division of Retirement Services at the Agency's facility in Baltimore, Maryland. On September 2, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and / or reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. beginning April 2008, Complainant was involuntarily detailed for 120 days; 2. Complainant was denied a performance award for FY 2007; 3. Complainant was permanently removed from her position as Director, Division of Retirements and Survivors Disability Insurance Statistics, effective November 2008; 4. on December 7, 2008, she was detailed to a position in the Office of Financial Policy and Operations; 5. on January 9, 2009, she received a performance rating of "Excellent" which was lower than the "Outstanding" performance rating she received for FY 2007; and 6. the Agency continuously failed to select her for supervisory positions within the Agency. Case History 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 26 -27, 2010. During the two-day hearing, nine witnesses appeared and 44 exhibits were submitted by Complainant. On July 20, 2011, the AJ rendered his liability decision and, on August 19, 2011, the AJ issued a bench decision. The AJ ruled in favor of Complainant on her most significant claims, 1, 3 and 4, which was subsumed as a part of claim 3. The AJ ruled in favor of the Agency with regard to issues 2, 5, and 6. He did not address the claims about the three supervisory positions for which she applied. Thereafter, pursuant to Complainant's request for compensatory damages, the AJ conducted a damages hearing. On April 16, 2015, the AJ issued a final decision including attorney's fees and other damages. On June 1, 2015, the Agency filed its Notice of Appeal of the AJ decisions. Complainant filed a cross-appeal with regard to the issues of damages. Complainant also has an appeal pertinent to subsequent denials of promotions which is the subject of a separate appeal, EEOC Appeal 0120140852, which is not before us in this appeal. Facts Complainant named the Associate Commissioner (male, no prior EEO) as one of two responsible management officials. The Associate Commissioner (S1) was her immediate supervisor and decision maker for the issues at issue. She also named the Deputy Commissioner (male, no prior EEO) (S2) as the concurring official. The pertinent record shows the following information. In March of 2006, Complainant, a GS-15, was named Director of the Division of Retirement, Survivors, Disability Insurance Statistics and Analysis (DRSA). This is a component of the Office of Research, Evaluation, and Statistics (ORES). She had 30 years of service with the Agency in management positions. Her former immediate supervisor was a woman, who served as the Deputy Associate Commissioner of ORES. She was Complainant's supervisor until March of 2008. On March 18, 2008, Complainant was assigned a new supervisor (male, no prior EEO activity). He was appointed to the position of Associate Commissioner of ORES (S1) and he became Complainant's direct supervisor. On April 14, 2008, S1 conducted a mid-year progress review session with Complainant wherein he complimented her for being a manager that gets results and he encouraged her to keep it up. Complainant had been highly regarded and her former first and second-line supervisors rated Complainant "Outstanding" overall and "Excellent" for "Communicating[ing] and interact[ing] with people in an effective, fair and compassionate manner." Exh. 3 at 2, 6. She received a within grade increase on March 2, 2008. Six months later after her very favorable evaluation, Complainant was removed from management by the newly appointed Associate Commissioner for the Office of Research Evaluation and Statistics ("ORES"). The stated reason for the removal was Complainant's poor management skills, following an incident with a coworker. Complainant was detailed out of her position and subsequently downgraded and moved out of management. The Agency was aware of the volatility of the male coworker. The record shows that, on May 21, 2007, Complainant's supervisor sent an email to the Assistant Deputy Commissioner for Policy about a confrontation between the male coworker and another female. That female also reported to Complainant's supervisor. The female had reported that she felt threatened by the male coworker. On October 9, 2007, that same male coworker sent an email, which was characterized as a "rant." In this email, the coworker outlined his specialization, identified his supervisor, his chain of command and his work priorities. The email was sent to Complainant's supervisor, Complainant, and others, including Complainant's staff. Complainant advised her staff to ignore the coworker's email. Six months later, Complainant testified that she was informed that the male coworker had been throwing around office equipment and stomped out of the office angrily. The coworker sent an email to Complainant's then supervisor informing her of his intention to take an extended leave of absence. He stated "I have to get rid of my anger before I can work with people and there is nobody that I know angrier than me." On April 16, 2008, Complainant was antagonistically confronted by the coworker who had a known history of anger-in-the-workplace incidents. Complainant met with S1 and described the confrontation with the male coworker that resulted in the coworker calling Complainant a "bitch". S1 told Complainant that the co-worker's behavior was not acceptable. Complainant testified that her supervisor told her that he had worked with the male coworker at the Census Bureau and that his supervisor kept him in a room by himself because of the issues with the coworker. Complainant sent an email to S1 and another management official, in which Complainant recommended that progressive disciplinary action be taken against the coworker. Exhibit 10, at 2. That same day, at 12:04 PM, the male coworker sent an email in which he stated that he was "entirely removing myself from any work involving [Complainant] and that he was tired of her micro-managing and condescending attitude." Complainant testified to a second incident where the coworker (T) blocked her exit and told her to "leave me alone or stay out of my business." Complainant felt threatened and called Security. Calling security was the recommended protocol for a situation in which an employee felt threatened or uncomfortable on SSA property. The Office of Facilities Management issued a Security Information Bulletin required that the employee "IMMEDIATELY notify the closes guard or a security Control Center." The Personnel Policy Manual defies "misconduct" to include "loud and / or abusive language." The manual requires calling a guard if misconduct is occurring at the headquarters." Complainant also sent an email to her staff directing them to have no contact with the male coworker. On April 18, 2008, S1 sent an email to his supervisor (S2) where he stated his intent to send Complainant on a detail. The Deputy Commissioner (S2) testified that the only reasons that S1 provided for Complainant's detail was the incident with the coworker. Testimony I at p. 117, line 23. On April 23, 2008, the Associate Commissioner (S1) formally made a decision to remove Complainant from her position as a GS-15 Director of the Division of Retirement, Survivors, Disability Insurance Statistics and Analysis (RSDI). On April 25, 2008, the Office of Retirement and Disability Policy's (ORDP) front office sent an email to other components of ORDP seeking a replacement for Complainant's position. Complainant was subsequently replaced without competition with a GS-14 male employee who had been under Complainant's supervision while he was on a temporary assignment. On June 16, 2008, S1 was contacted by an EEO Counselor who informed him that Complainant had initiated the administrative EEO process. He then sent an email to another management official informing her that Complainant had initiated an informal EEO inquiry and that S1 had been contacted by an EEO counselor. CPLT, Ex. 13. On July 18, 2008, S1 initiated an Office of Labor Management Employee Relations (OLMER) investigation to investigate Complainant's management and leadership skills. On September 2, 2008 Complainant filed her formal EEO complaint. On September 12, 2008, Complainant was informed that her involuntary detail was extended to October 27, 2008. On September 24, 2008, S1 informed Complainant that he was permanently removing her from her position, extending her detail and told her that he had investigated her management style. On December 7, 2008, S1 ordered Complainant to a second detail. S1 chose a male to temporarily replace Complainant and then chose another male, a GS-14, to permanently replace Complainant. The record includes testimony from Complainant's former supervisor who testified that one of the employees assigned to Complainant's replacement came to her questioning his leadership. The record does not show that management initiated any investigation of his leadership style or took any adverse action the male supervisor. Administrative Judge's Decisions The AJ announced his decision with regard to liability, on July 20, 2011. He found that Complainant was subjected to an adverse employment action in being forced to leave her managerial position, while her comparator was not detailed or permanently removed from his duties involuntarily. The AJ reasoned that the "heart of this case is the disparate treatment claim made by Complainant with regard to the discipline she received as a consequence of the altercations with Williams on April 16, 2008." The AJ found that the other party involved in the altercation was the comparator and that using him as a comparator in the disparate treatment analysis was appropriate. The AJ found that the comparator was treated more favorably in that he did not suffer a down-grade in his professional responsibilities or job-description, nor was he involuntarily detailed out of his position. The AJ stated that it is undisputed that the coworker called Complainant a "bitch" and exhibited speech and conduct which violated the standard of conducted as stated in the Agency's Personnel Policy Manual. The AJ ordered the Agency to produce the coworker as a witness during the hearing. The Agency did not produce the witness and its stated reason was that this was Complainant's effort to "further harass and embarrass [the coworker]." The parties were directed to proffer submissions on an adverse inference in the event that the witness was not present to testify. Because the Agency failed to produce all documents pertaining to any misconduct involving the named comparator and failed to produce him as a witness without just cause, in violation of the Judge's order, the AJ determined that three facts will be established in Complainant's favor: One of the facts was that the Agency took action against the coworker when he threatened a male, but failed to take appropriate action when, in May 2007, he had earlier threatened another female who worked for a female supervisor and when he challenged a female and took action against Complainant when it should have taken action against the aggressor and she felt threatened. The AJ reasoned that "to discipline Complainant and not [the named male antagonist] makes little sense even considering the facts available at the time." The AJ stated "to discipline Complainant and not [named antagonist] in this scenario is discriminatory." The AJ found that Complainant has met her prima facie burden. The AJ found the Agency's stated reason (various complaints from her employees) unworthy of credence. The AJ reasoned that two days prior to the confrontation, S1 told Complainant that she got results and to "keep it up." The AJ found that the OLMER review was done "in order to reinforce the decision to permanently remove Complainant from her managerial position." The AJ added that "the Agency's shielding of [the coworker] from basic employee qualifications and responsibilities significantly contributed to the success of Complainant's sex-based disparate treatment claims." The AJ also found that Complainant established a prima case of reprisal. The AJ found that "Complainant was involved in EEO activity" and the Agency was aware of this activity and thereafter, the Agency subjected her to adverse treatment when an OLMER investigation was conducted one month after her supervisor learned that Complainant had filed an EEO inquiry and three months after Complainant had already been removed from her position. The AJ found that the adverse treatment (details) was taken while the protected activity was pending. The AJ found that "Complainant has established by a preponderance of the evidence that the Agency unlawfully discriminated against Complainant based on her sex and prior EEO activity when: 1) she was involuntarily detailed for 120 days, beginning May 25, 2008; and 2) she was permanently removed from her position as Director, Division of Retirement and Survivors Disability Insurance Statistics, effective November 2008. The AJ found that claim 4) was moot based on the liability findings as to claims 1) and 3) and claim 6) may be included in the damages phase of this matter. See Order entered August 18, 2011. He found, however, that she did not prevail with regard to the denial of a performance award for FY 2007 and the January 9, 2009 performance rating (claims 2 and 5). Damages and Relief The AJ noted that Complainant testified at the damages hearing with regard to her pain and suffering due to her "consequent depression, anxiety, strained family relations and overall diminution in life's enjoyment." The record includes medical testimony from one of her mental health providers who told her that her conditions require ongoing treatment throughout the foreseeable future.' The AJ found that "Complainant's pain and suffering flowing from the discrimination in this matter include depression, anxiety . . . which has compromised her concentration, occasioning perseveration, prompting crying episodes and the need to ingest anti-anxiety medication." The AJ consider all of the elements and factors and consistent with his reading of other decisions, he awarded Complainant make whole relief. In his February 11, 2015 decision and Award on Damages (Exhibit B) and in his April 16, 2015 Award of Attorney's Fees and Costs (Exh. A), the AJ awarded Complainant $75,000 in non-pecuniary compensatory damages, pecuniary damages of $19,401.42; $6,245 for future pecuniary damages and restoration of 215.06 hours leave, less such leave otherwise restored by the Agency. The AJ ordered that Complainant be reinstated and restored to the position she encumbered prior to the incident and he ordered compensatory for attorney's fees and costs et al in prosecuting this case. The Agency filed its notice of appeal on June 1, 2015, ostensibly from both the AJ's February 11, 2015 and April 2015 decisions, but the Agency acknowledged that the date of the final action from which it was appealing was June 1, 2015, which was the date of the Agency's Notice of Appeal. CONTENTIONS ON APPEAL The Agency argues that the AJ erred by substituting his judgment for that of the Agency with regard to management decisions and requests that the Commission affirm its rejection of the AJ decisions on liability and order of relief in favor of Complainant. Complainant argues that she is entitled to additional make-whole relief, given the delay in providing her relief. She argues that her 30-year career was derailed and she is entitled to compensatory damages and a return to management. 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 review this matter de novo and through the lens of the federal sector mandate of Title VII's Section 717. Title VII requires that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based . . . race [or] sex." 42 U.S.C. § 2000e-16(a). To prevail in a disparate treatment claim, Complainant must establish that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978). We disagree with the Agency's conclusion that the AJ's decision is not supported by the record and that Complainant failed to establish a prima facie case of sex discrimination and/or unlawful retaliation for prior EEO activity. For the reasons stated by the AJ, we also disagree with the Agency's assertion that the male coworker was not a proper comparator. With regard to the sex discrimination claim, the evidence shows that the male employee, who was the instigator of the conflict, was not disciplined, while Complainant was downgraded, detailed and then removed and replaced by lower graded male employees. This is enough to raise an inference of sex discrimination. With regard to Complainant's reprisal claim, the record is clear that Complainant filed an EEO complaint, the responsible official was aware of her filing and, thereafter, instigated an investigation against her and removed her from her management position. The AJ found that S1 was aware of her EEO activity and the evidence supports the finding that S1 was also aware of it. These facts are sufficient to raise an inference of retaliatory animus. See Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. The Supreme Court has described this burden as being met "if the [agency's] evidence raises a genuine issue of fact as to whether it discriminated against the [complainant]," and has noted that, "[t]o accomplish this, the [agency] must clearly set forth, through the introduction of admissible evidence, the reasons for the [complainant's] rejection." Id. at 255-56. Although the agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded a complainant. See Complainant v. Department of Homeland Security (Federal Emergency Management Agency), EEOC Appeal No. 0120140085 (January 15, 2015) (finding that the agency failed to articulate a legitimate, nondiscriminatory reason for its action when the record provided no affidavit or explanation or evidence from any agency official articulating the specific reasons which the complainant could rebut). The Agency found that it had articulated legitimate, nondiscriminatory reasons for its actions. The responsible management officials stated that it removed Complainant so that she could have a cooling off period and questioned Complainant's managerial skills and style. To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). S1 stated that Complainant was detailed and removed because of her management skills. First, the Agency's own determinations regarding Complainant's competency as a manager undermines the Agency's stated perception that Complainant did not meet its standard of decorum. S1 told Complainant days before the incident at issue that she was doing a good job and to keep it up. By doing so, the Agency has acknowledged that Complainant met the standards that it required for managers. The Agency's acknowledgements of Complainant's performance record lend credence and evidentiary support to Complainant's claim of discrimination and reprisal. Second, no evidence was proffered that this management standard was applied to others assigned as managers. As the AJ noted, others who replaced her also had employees complaining. No investigations were instigated against them. There was also evidence that the Agency failed to act to protect female employees, but took immediate action to protect male employees who had been threatened by the coworker. It is undisputed that S1 initiated the investigation after detailing Complainant. Therefore, the results of the investigation could not serve as the justification for his detailing Complainant. Finally, we also note that the supervisor did not tell Complainant of any issues during the mid-year review. We find in this case that the record sufficiently supports the AJ's finding on liability. It establishes that Complainant was accorded harsher treatment than the male for a single incident, where the male was the instigator of the incident. For these reasons, we find that the record supports the AJ's determination that Complainant has established, by a preponderance of the evidence that she was discriminated against because of her sex and prior EEO activity, based on the evidence available at the time of the incidents at issue. Damages and Relief When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In this regard, the Commission has authority to award such damages in the administrative process. See e.g. Stokes v. Department of Homeland Security, EEOC Appeal No. 0120071802 (December 10, 2008). To receive an award of compensatory damages, a complainant must demonstrate that he or she 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), req. for reconsideration denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. EEOC Notice No. 915.002 at 8. Objective evidence of compensatory damages can include statements from the complainant concerning his or her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996), citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). We note the AJ considered the Agency's argument that Complainant had long-standing, non-work related medical issues when the discrimination occurred or that the discrimination was not found with regard to the supervisory positions at issue in this matter. We find that the discriminatory reassignment and removal were contributing facts to Complainant's stress, humiliation, anxiety, sleeplessness and depression. In this case, the AJ awarded relief based by on the receipts, records, bills, and other proof of actual losses, including medical documentation and Complainant's statements. The AJ also cited four decisions in cases somewhat similar to the Complainant's case to buttress his award. We find that there is a basis in the record to support the AJ's decision. Accordingly, we find that the provision of relief was appropriate. We are not persuaded by Complainant's argument that additional relief should be provided, based on the passage of time it took for a final decision. Based upon the foregoing, our review of the record, and Commission precedent, we find that Complainant is entitled to the relief awarded, including the $75,000 compensatory damages awarded. This award takes into account, as best may be discerned, the nature, severity, and duration of complainant's suffering from the incidents at issue in this matter. This amount also is consistent with other non-pecuniary compensatory damages awards given in similar cases and is not "monstrously excessive" standing alone, nor derived from passion or prejudice. See e.g. Warren v. Dahlberg, EEOC Appeal 01985656 (March 20, 2011) (affirming an AJ's award of $75,000 in non-pecuniary damages to a complainant who was not selection for a position based on her sex and in reprisal where the complainant suffered aggravation of depression, stress and damage to her career. For these reasons, we conclude that Complainant is entitled to all of the relief and the damages awarded, including reinstatement. CONCLUSION Accordingly, we REVERSE the Agency's Decision, and AFFIRM the final decision of the AJ which we deem as the final decision in this matter and we REMAND the matter to the Agency for the remedial relief, consistent with the Order below. ORDER The Agency is ORDERED to take the following remedial action: 1. Within thirty (30) days of the date on which this decision becomes final, the Agency shall tender to Complainant the sum of $19,401.42 in pecuniary damages and the sum of $6,245 for future pecuniary damages. 2. Within thirty (30) days of the date on which this decision becomes final, the Agency shall implement the awarded restoration of 215.06 hours leave, less such leave otherwise restored by the Agency. 3. Within thirty (30) days of the date this decision becomes final, the Agency shall rescind the removal action and retroactively reinstate Complainant and restore her to the position she encumbered prior to her removal - Division Director, SRSA or its equivalent. Complainant shall also be awarded seniority and other employee benefits from the date of her April 2008 reassignment to the date of reinstatement. 4. Within thirty (30) days of the date on which this decision becomes final, the Agency shall tender to Complainant the sum of seventy-five thousand ($75,000.00) in non-pecuniary damages. 5. Complainant is to be compensated for attorney's fees and costs in prosecuting this case. (See "Attorney's Fees" paragraph below). This covers the fees associated with prosecuting this action through appeal with interest for any incurred and reasonable attorney's fees. 6. Within thirty (30) days of the date on which this decision becomes final, the Agency is directed to conduct training for the S1 and S2 who were found to have violated Title VII. The Agency shall address these employees' responsibilities with respect to sex discrimination and retaliation. 7. Within thirty (30) days of the date on which this decision becomes final, the Agency shall consider taking disciplinary action against S1 and S2. 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 (G0914) The Agency is ordered to post at its 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 becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e) (1) (iii)), 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 (M0815) 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 tends 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, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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. Carlton M. Hadden, Director Office of Federal Operations March 15, 2016 __________________ 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 did not file the appeal within 40 days of the date of its acknowledged receipt of the February 11, 2015 liability decision or the April 16, 2015 decision. The Agency's Notice of Appeal served as its "final order" in this matter." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150028 2 0720150028