U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minna Z,1 Complainant, v. Lisa S. Disbrow, Acting Secretary, Department of the Air Force, Agency. Appeal No. 0720160009 Hearing No. 410-2011-00352X Agency No. 9R1M10195 DECISION Following its November 4, 2015, final order, the Agency filed an appeal pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of the remedies awarded by an Equal Employment Opportunity Commission Administrative Judge (AJ) following a finding of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission MODIFIES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Inventory Management Specialist at Robins Air Force Base, Georgia. On September 14, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of her disability and in reprisal for prior protected EEO activity when: 1. in July 2010, Complainant discovered that she was not moved with her coworkers; 2. on or about June 28, 2010, management presented Complainant with a new light duty assignment of escorting janitorial personnel, which was not commensurate with her medical restrictions; 3. on or about June 28, 2010, management denied Complainant union representation when presenting her with a revised temporary job assignment; and 4. since September 16, 2010, management has forced Complainant to work without a reasonable accommodation. 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 AJ. Complainant requested a hearing and the AJ held a hearing on March 17-18, 2015. In his July 21, 2015 decision on liability, the AJ found that the Agency violated the Rehabilitation Act when it failed to engage in the interactive process to find a reasonable accommodation for Complainant's disability and when it assigned her the temporary light duty assignment of escorting janitorial personnel. The AJ also found, however, that Complainant failed to establish that she was subjected to unlawful discrimination with respect to the remaining claims. By way of relief, the AJ ordered the Agency to: (1) pay Complainant $25,000.00 in nonpecuniary, compensatory damages; (2) provide training to all personnel in Complainant's squadron; (3) consider taking disciplinary actions against the relevant management officials; and (4) post a Notice of the finding of discrimination. In its final action, the Agency concurred with the AJ's finding that Complainant failed to show that she was subjected to unlawful retaliation when management denied her union representation and did not relocate her workspace with her coworkers. The Agency also argues, however, for the first time on appeal, that Complainant's claims regarding the temporary light duty assignment and the Agency's failure to engage in the interactive process were previously resolved in a prior EEO case. Specifically, the Agency contends that these claims were resolved in Complainant v. Department of the Air Force, EEOC Appeal No. 0720110021 (Feb. 10, 2012). In her brief in opposition to the Agency's appeal, Complainant contends that the AJ erred in finding no discrimination with respect to claims (1) and (3). Complainant also requests that we reject the Agency's argument that the claims in this instant case were addressed in a prior EEO decision. Complainant does not challenge any of the remedies awarded by the AJ. 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). Here, the Agency has not appealed the AJ's finding of disability discrimination with respect to claims (2) and (4). Instead, the Agency argues that these claims were addressed in a prior complaint. We find, however that the relevant claim addressed in Complainant, EEOC Appeal No. 0720110021, was found to have occurred in April 2009. In contrast, the events at issue in the instant complaint were found to have occurred in June 2010. As such, we are not persuaded by the Agency's argument that these claims were addressed in the prior case; nor do we find that the remedy ordered in our prior decision has any bearing on the instant decision. Furthermore, upon review, we affirm the AJ's finding of disability discrimination with respect to claims (2) and (4). Next, we turn to claims (1) and (3). To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). We concur with the AJ's finding that assuming, arguendo, Complainant established a prima facie case of disability and reprisal discrimination with respect to these claims, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record reflects that the meeting at issue in claim (3) was not a disciplinary interview and could not have resulted in any discipline. As such, the Agency explains there was no requirement for management to allow Complainant to have a union representative present. Further, with respect to claim (1), the record shows that Complainant was initially assigned to a four-person cubicle with three other inventory management specialists, outside the Director's office. The record also shows that in June 2010, management officials decided to relocate the inventory management specialists nearer to other team members. Management officials consulted with the union regarding the relocation, and all of the inventory management specialists, including Complainant, were contacted by union officials to ensure that there were no objections to the relocation. The record shows that Complainant was on leave at this time, and the union representative was not able to speak with her prior to the scheduled relocation. Therefore, Complainant was not relocated with her coworkers at that time. Accordingly, we concur with the AJ's finding that Complainant failed to show that the Agency's articulated reasons for its actions were a pretext for unlawful reprisal or disability discrimination. The AJ's decision finding no discrimination is supported by substantial evidence in the record. Finally, we address the AJ's award of compensatory damages. Nonpecuniary damages are available to compensate the injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because a complainant is a victim of discrimination. The existence, nature, and severity of emotional harm must be proved. The method for computing nonpecuniary damages should typically be based on a consideration of the severity and duration of harm. Complainant v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). We note that for a proper award of nonpecuniary damages, the amount of the award should not be 'monstrously excessive' standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Complainant v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygaar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Here, the AJ awarded Complainant $25,000.00 in nonpecuniary, compensatory damages, finding that the discrimination suffered by Complainant resulted in insomnia, depression, migraines, anxiety, humiliation, damage to her professional reputation, diminished quality of life, damage to relationships with friends and family members, and aggravation of her preexisting mental and physical conditions. We find that given the hearing testimony and other evidence, the AJ's award of $25,000.00 is supported by the evidence of record and is consistent with the amount awarded in similar cases. See Martina S. v Department of Homeland Security, EEOC Appeal No. 0120160001 (Jan. 24, 2017) ($25,000.00 awarded where Agency discrimination resulted in familial strain, stress, anger, frustration, sleep and eating issues); Complainant v. Department of Defense, EEOC Appeal No. 0720140009 (Sep. 22, 2015) ($25,000.00 awarded where complainant experienced anxiety, panic attacks, insomnia, headaches, tremors, heart palpitation, headaches, and claustrophobia as a result of the Agency's discrimination). We shall restate the AJ's order of relief, as slightly modified, herein. CONCLUSION Accordingly, we AFFIRM the Agency's finding of no discrimination regarding claims (1) and (3) and retaliation. We REVERSE the Agency's dismissal of claims (2) and (4), and AFFIRM the AJ's finding of disability discrimination with respect to these claims. The Agency shall comply with the ORDER herein. ORDER To the extent it has not already done so, the Agency shall take the following remedial actions: 1. Within 60 days of the date on which this decision is issued, the Agency shall pay Complainant $25,000.00 in nonpecuniary, compensatory damages. 2. Within 60 days of the date on which this decision is issued, the Agency shall provide training to all responsible management officials regarding their responsibilities under the Rehabilitation Act, with special emphasis on reasonable accommodation. 3. Within 60 days of the date this decision become final, The Agency shall consider taking disciplinary action against all responsible management officials found to have discriminated against Complainant. The Agency shall report its decision to the Commission. If the Agency decides to take disciplinary action, then it shall identify the action taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G1016) The Agency is ordered to post at its Warner Robins Air Logistics Center, Robins Air Force Base in Georgia 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 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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 March 10, 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 0720160009 6 0720160009