U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eleni M.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation, Agency. Appeal No. 0720160021 Hearing No. 470-2013-00159X Agency No. 201224643FAA04 DECISION Following its July 18, 2016, final order, the Agency filed a timely appeal pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its partial rejection of an Equal Employment Opportunity Commission Administrative Judge's (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 requests that the Commission affirm its rejection of the relief ordered by the AJ. Specifically, the Agency argues that the AJ erred in (1) finding that the Agency retaliated against Complainant when she was issued a Letter of Counseling in June 2012; and (2) awarded her $5000.00 in compensatory damages and attorney's fees in the amount of $6950.00. For the following reasons, the Commission REVERSES in part and AFFIRMS in part, the Agency's final order rejecting the AJ's finding of discrimination based on reprisal. The Commission REMANDS the matter to the Agency for further processing in accordance with the Order below. ISSUES PRESENTED The issues presented are whether the AJ's finding that Complainant was subjected to retaliation when she was issued a Letter of Counseling is supported by substantial evidence in the record; and whether the remedy provided by the AJ was appropriate. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Security Assistant in the Agency's Office of Security and Hazardous Materials Safety Program facility in Indianapolis, Indiana. The facts of this case have been detailed in the AJ's decision, all previously filed briefs, and the Agency's appeal. This decision incorporates them all by reference. Relevant to the instant appeal are the following facts of record: In or around June 2011, an investigation involving Complainant's co-worker uncovered evidence of an inappropriate text sent to Complainant by her immediate supervisor (S1). Complainant was advised that this discovery would be evaluated for appropriate action and she was asked to prepare a statement. Complainant prepared a list of inappropriate comments made by S1. As part of the investigation, S1 and Complainant's computers were subjected to forensics examination. Multiple inappropriate emails on both computers were identified and S1 was reassigned away from his manager's position, and he subsequently resigned. The investigation closed on June 17, 2011, and several months later, i.e., September 11, 2011, a new supervisor (S2) was hired. Complainant was placed under S2's supervision. S2 inherited the investigation of Complainant and S1's inappropriate communication and all the decisions made surrounding the investigation. S2 took measures to ascertain whether inappropriate images discovered on Complainant's computer during the investigation had been removed. On April 20, 2012, the results of the examination revealed that the images remained. S2 issued a Letter of Counseling to Complainant, on June 25, 2012, and advised her to remove the images.2 While the letter was not considered formal discipline, and was not retained as part of the Official Personnel File, Complainant was advised that S2 would keep the letter indefinitely in case it was ever necessary to establish that Complainant was on notice of the fact that possession of these images was in violation of the Agency's internet and media policy. Additionally, she was advised that "future incidents of this nature may result in disciplinary action." On November 13, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII and subjected her to a hostile work environment when she was subjected to at least seven incidents including: sexual harassment; denial of award pay; being assigned additional duties without being compensated; denial of training requests and career development opportunities; and issuance of the Letter of Counseling at issue in the instant appeal.3 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 Administrative Judge. Complainant timely requested a hearing and the AJ held a hearing on February 12-13, and March 13, 2014, and issued a decision on May 17, 2016. Specifically, the AJ found that the evidence did not establish that any of the allegations with the exception of the issuance of the Letter of Counseling occurred as a result of Complainant's sex or in retaliation for prior EEO activity. The AJ reasoned that while it was clear why Complainant was issued a Letter of Counseling, the Agency did not offer an explanation as to why the investigation and issuance of the letter stopped with Complainant and did not include employees who had also engaged in similar conduct. The AJ found no discernable difference between Complainant's conduct and the conduct of other employees found to have inappropriate content stored on their computers. The only distinction the AJ noted was that in a separate prior investigation, Complainant made communications regarding inappropriate conduct by S1. The AJ found that Complainant was asked to give a statement of all interactions she considered inappropriate, and that she identified sexual actions toward her that she considered inappropriate and that formed the basis of an investigation into the conduct of a supervisor. Thus, Complainant's statements regarding S1's conduct, the AJ found, were therefore necessarily protected EEO activity for which retaliation was prohibited under the statute. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, the Agency seeks reversal of the AJ's decision, in part, and argues that the decision contains material errors of fact and law. The Agency contends that Complainant could not establish a prima facie case of reprisal because she did not engage in protected activity, she was not subjected to an adverse action, and there was no nexus. In the event the Commission fails to reverse the AJ's finding of discrimination, the Agency argues that the facts of the case do not support the award of $5000.00 in compensatory damages, a determination that Complainant is a prevailing party, or the award of $6950.00 in attorney's fees. STANDARD OF REVIEW 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). ANALYSIS AND FINDINGS At the outset, we agree with the AJ that Complainant did engage in protected EEO activity when she provided a statement outlining S1's inappropriate sexual comments to her. In its enforcement guidance on retaliation, the Commission states: The anti-retaliation provisions make it unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. This language, known as the "participation clause," provides protection from retaliation for many actions, including filing or serving as a witness for any side in an administrative proceeding or lawsuit alleging discrimination in violation of an EEO law. The participation clause applies even if the underlying allegation is not meritorious or was not timely filed. The Commission has long taken the position that the participation clause broadly protects EEO participation regardless of whether an individual has a reasonable, good faith belief that the underlying allegations are, or could become, unlawful conduct. Although the Supreme Court has not addressed this question, the participation clause by its terms contains no limiting language, and protects from retaliation employees' participation in a complaint, investigation, or adjudication process. EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice 915.004 (Aug. 25, 2016) (Retaliation Guidance). After a careful review of the record, including evidence not specifically discussed in this decision, we discern no basis to disturb the AJ's finding of discrimination. The findings of fact are supported by substantial evidence, and the AJ correctly applied the appropriate regulations, policies, and laws. It is undisputed that the examination of Complainant's computer stemmed from the investigation of S1. During the investigation, the Agency also discovered inappropriate material on Complainant's computer. After S2's arrival, he was made aware of the previous investigation regarding Complainant and S1, as well as the results from the investigation. Both Complainant and the Deputy Director testified that while there were other people involved in inappropriate email exchanges, as well as storing inappropriate material on their computers, Complainant was the only person involved to receive a Letter of Counseling. None of the other employees received any communication about the inappropriate images shared electronically, or stored on their work computers. While we agree that the Agency articulated a legitimate reason for issuing a Letter of Counseling to Complainant, we find it problematic that no explanation was given for why the investigation and issuance of a Letter of Counseling stopped with Complainant, and did not include others who were identified as also being involved in participating in inappropriate email exchanges, or found to have stored inappropriate material on their computers. In sum, we find that substantial evidence in the record supports the AJ's finding that Complainant established a prima facie case of discrimination based on reprisal for prior EEO activity when the Agency chose to subject her to a higher level of scrutiny after discovering inappropriate images on her computer. Compensatory Damages & Attorney's Fees 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. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002, at 8 (July 14, 1992). 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 non-pecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, or 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. Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Evidence from a health care provider or other expert is not a prerequisite for recovery of compensatory damages for emotional harm. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. The more inherently degrading or humiliating the agency's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. See Banks v. U.S. Service, EEOC Appeal No. 07A20037 (Sept. 29, 2003) (citing Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996)). An award of non-pecuniary compensatory damages should reflect the extent to which the agency's discriminatory action directly or proximately caused the harm as well as the extent to which other factors also caused the harm. Johnson v. Dep't of the Interior, EEOC Appeal No. 01961812 (June 18, 1998). It is the Complainant's burden to provide objective evidence in support of her claim and proof linking the damages to the alleged discrimination. Papas v. U.S. Postal Service, EEOC Appeal No. 01930547 (Mar. 17, 1994); Mims v. Dep't of the Navy, EEOC Appeal No. 01933956 (Nov. 24, 1993). The Commission recognizes that not all harms are amenable to a precise quantification; the burden of limiting the remedy, however, rests with the employer. Chow v. Dep't of the Army, EEOC Appeal No. 01981308 (Feb. 12, 2001). Moreover, the amount of an 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. Cygnar v. Chicago, 865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993). The Agency contends that the compensatory damages award of $5000 is excessive in the instant case, because this amount is typically seen when there has been a suspension, or other formal discipline. The Agency submits that there is no precedent to support the award in this case, and that the AJ concluded the award was appropriate with limited medical evidence indicating that that Complainant's medical condition was exacerbated by the circumstances at issue in the instant decision. The record reflects that Complainant was receiving outpatient therapy sessions to assist her in managing her Adjustment Disorder with mixed anxiety and depressed mood disorder. While Complainant may have exhibited some of these behaviors prior to the incidents that occurred at work, it is documented that her symptoms were consistent with the psychological effects of victims of sexual and work harassment. She exhibited behaviors of depressed mood, anxiety, sleeplessness, suicidal thoughts, crying episodes, withdrawal and isolation, increased irritability, loss of trust, and avoidance of interaction with alleged perpetrator when possible. After careful consideration of the record, the Commission finds the AJ's award of $5,000.00 appropriate. We note that the Commission has awarded compensatory damage amounts similar to the amount awarded in this case. See Hairston v. Department of Education, EEOC Appeal No. 0120103308 (January 4, 2013) ($5,000 in nonpecuniary damages awarded where complainant experienced stress and anxiety that caused disruptive sleep patterns, headaches, and other physical problems), request for reconsideration denied, EEOC Request No. 0520130045 (March 27, 2013); Stapp v. Department of the Navy, EEOC Appeal No. 01A05634 (September 9, 2002) ($5,000 in nonpecuniary, compensatory damages awarded where complainant experienced depression, humiliation, loss of self-esteem, and impaired relationship with her husband); Complainant v. Dep't of the Veterans Affairs, EEOC Appeal No. 0120120536 (Aug. 18, 2014) ($5,000 in nonpecuniary compensatory damages awarded where complainant suffered mental symptoms such as depressed mood, anger, stress, difficulty sleeping, and loss of interest in activities). We conclude that there is precedential support for the AJ's award of $5,000.00 to compensate Complainant for the harm she suffered because of the Agency's actions. We further find no persuasive reason for reducing the AJ's attorney's fees award from $6950.00. 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 which rejected a portion of the AJ's decision, and REMAND the matter to the Agency for further processing in accordance with this decision and the Order below. ORDER To the extent that it has not already done so, within one hundred twenty (120) days of the date of this decision, the Agency shall: 1. Pay Complainant $5000.00 in non-pecuniary compensatory damages. 2. Pay Complainant $6950.00 in attorney fees. 3. Consider issuing discipline to the responsible management officials. The Agency shall report its decision to the Compliance Officer referenced herein. 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. If the identified management officials have left the Agency's employment, the Agency shall furnish documentation of the departure date(s). 4. Ensure that all responsible management officials participate in 8 hours of in-person training on their obligations, responsibilities, and rights under Title VII. Specifically, training should focus on not discriminating against employees because they have engaged in prior protected EEO activity. 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 (G0617) The Agency is ordered to post at its Security and Hazardous Materials Division facility, located in Indianapolis, Indiana 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 (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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (T0610) This decision affirms the Agency's final 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 _7/25/18_________________ 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 S2 wrote that the forensic analysis of her computer revealed that she had "transmitted and stored numerous inappropriate images depicting defamatory, discriminatory, and sexually oriented images." 3 The AJ found no discrimination regarding all of Complainant's claims with the exception of the reprisal claim associated with the Letter of Counseling that is at issue in the instant appeal. Because the other claims are not at issue here, we AFFIRMED the findings of no discrimination. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720160021 10 0720160021