Recent Case Accomplishments:
GUESS V. EPA: $100,000 Awarded in a Reprisal Discrimination Case.
On March 9, 2011, Equal Employment Opportunity Commission (EEOC) Administrative Judge Lisa D. Sirkin, from the EEOC’s New York District Office, held that the Environmental Protection Agency (EPA) retaliated against a FELSC client under Title VII when it transferred her from her Project Officer position into a Senior Quality Assurance position, where she was required to do “data entry.” The transfer was a lateral transfer with no change in pay or grade. In finding discrimination, Judge Sirkin determined that the Agency’s evaluations did not show that the transfer was necessitated by the employee’s performance. After the EEOC issued its finding of discrimination, the EPA filed a Motion for Reconsideration. The Agency argued that it was improper for the EEOC Judge to find discrimination on the transfer issue because the transfer issue was not an accepted issue in the case. The Agency argued that the transfer issue was not investigated and, hence, was not properly before the court. Judge Sirkin denied the Agency’s motion and re-affirmed her finding of discrimination. She stated that the Agency waived objection to inclusion of the transfer issue when it addressed the details of the transfer during discovery, in prehearing submissions, and at the hearing. Judge Sirkin further noted that she had the authority to add an issue at the hearing. She stated that:
"An Administrative Judge has the authority, and may properly exercise discretion, to add another basis of discrimination when there is evidence of that basis from testimony at the hearing and in the record. If the basis is like and related to an accepted allegation, it may be added even at the hearing. Johnson v. U.S. Department of the Treasury; Sanchez v. Sec’y of Health and Human Services, EEOC Appeal No. 07A20017 (2003), citing Sanchez v. Standard Brands Inc., 431 F.2d 455 (5th Cir. 1970) and Dragos v. United States Postal Service, EEOC Request No. 05940563 (January 19, 1995). "
After briefs were submitted on the issue of damages, Judge Sirkin awarded our client $100,000 in non-pecuniary compensatory damages for the emotional distress and physical ailments she suffered as a result of the discriminatory transfer. The client was represented by Rosemary Dettling.
BARTRON V. DOD: $92,500, Back pay, and Reinstatement Awarded to a FELSC Client for Denial of Reasonable Accommodation and Reprisal.
On March 3, 2011, the EEOC’s Office of Federal Operations held that the Department of Defense (DOD) discriminated against a FELSC client, Patricia Bartron, when it denied her request for reasonable accommodation. When Ms. Bartron came to FELSC, the Agency had already denied her request for accommodation and she had submitted an application for disability retirement. FELSC sent the Agency a letter requesting that it explore reassignment options so that she would not have to resign. The Agency ignored our letter and the complainant resigned. An EEOC hearing was held in Washington, DC. At the conclusion of the hearing, EEOC Administrative Judge Abigail Coleman, from the EEOC Washington Field Office, found that the DOD discriminated against Ms. Bartron under the Rehabilitation Act because of her disability, when it failed to explore reassignment options. The Judge noted that the agency’s failure to accommodate complainant resulted in her inability to work and in the loss of income. The client testified that due to the loss of her job, her house was foreclosed and she was separated from her grandchildren and children, who lived with her. Judge Coleman awarded our client $92,500 in non-pecuniary compensatory damages, along with back pay, reinstatement, and other relief. Bartron v. Department of Defense, EEOC Appeal No. Appeal No. 0720100054 (March 3, 2011). Ms. Bartron was represented by Rosemary Dettling.
DAVIS v. FAA: Department of Transportation Ordered to Reverse a Demotion.
On January 13, 2011, Administrative Judge Pamela B. Jackson, from the Merit Systems Protection Board’s (MSPB) Atlanta Regional Office, ordered the U.S. Department of Transportation (DOT), Federal Aviation Administration (FAA), to reverse its decision to demote a FELSC client. The client appealed the FAA’s decision to demote him from the position of Supervisory Airway Transportation Systems Specialist, FV-21-1-J, to the position of Airway Transportation Systems Specialist, FV-21-1-I, effective September 12, 2010. The agency demoted him after charging him with 1) two counts of failure to follow instructions; 2) one count of misrepresentation, and 3) three counts of conduct unbecoming a manager. The MSPB hearing began in Jackson, Mississippi and concluded in Washington, DC. After the hearing, Judge Jackson held that the agency failed to prove any of its charges. Judge Jackson ordered the agency to rescind the appellant’s demotion and retroactively restore him to the position of Supervisory Airway Transportation Systems Specialist, FV-2101-J. The client was represented by Rosemary Dettling.
FIVECOAT v. US AIR FORCE: $100,000 Awarded to a FELSC Client for Sex Harassment and Reprisal Discrimination.
On December 23, 2010, EEOC Administrative Judge Anita Foye Richardson, from the EEOC’s Raleigh District Office, determined that the United States Air Force subjected a FELSC client to a hostile work environment based on her sex and prior EEO activity. Judge Foye Richardson held that our client was subjected to a hostile work environment by her first-line supervisor, an Air Force Flight Chief, when he spoke to her in curt and rude tones; called her and other women derogatory names; micromanaged her; criticized her publicly and privately; undermined her in front of her subordinates; blamed her for problems that he was responsible for; undermined her authority; excessively scrutinized her; publicly criticized her; and forced her to witness harassment of her female coworkers. After the finding of discrimination, the Administrative Judge scheduled a damages hearing. At the conclusion of the damages hearing, Administrative Judge Richardson found that the complainant was entitled to an award of $100,000 in non-pecuniary compensatory damages. The Judge noted that statements from complainant, her coworkers and her husband showed that complainant experienced substantial emotional and physical problems, including depression and loss of enjoyment of life, because of the discrimination. The Judge found that the award was consistent with awards in similar cases, and was not “monstrously excessive.” The Client was represented by Rosemary Dettling.
JACKSON v. US AR FORCE: $125,000 Awarded to a FELSC Client for Sex Harassment and Reprisal.
On December 23, 2010, after a lengthy bifurcated hearing, EEOC Administrative Judge Anita Foye Richardson, from the EEOC’s Raleigh District Office, determined that the United States Air Force subjected our client to a hostile work environment based on her sex. Judge Richardson held that:
"With the women in CERF, Flight Chief did the following. First, he spoke to them in curt and rude tones. Secondly, he called his subordinate employees some derogatory names such as fat slob and “Jeckyll and Hyde,” and he referenced other women as a “bitch” and “slut.” Also, he micromanaged the women more so than the men, and he repeatedly criticized the women publically and privately. More so, he criticized and undermined Complainant in front of others including her subordinates and management not within her management supervision. Next, by the nature of their positions in the funds office, he assigned the women his work while he was out of the office. And he blamed them when his work suspenses were missed or late. Further, he circumvented the chain of command and repeatedly undermined Complainant’s authority over her subordinates with regard to training opportunities, work assignments, and additional duties. Finally, he had a better rapport with the men. In general, such behavior makes an uncomfortable working environment. Specifically, Flight Chief subjected Complainant to increased work scrutiny that was unwarranted. The record does not reflect that Complainant’s work performance justified this heightened micromanagement style. Although email traffic between Complainant and Flight Chief and Complainant’s mid-year performance review indicate that Flight Chief had concerns about Complainant’s ability to meet suspenses, Flight Chief could not provide formal documentation of his overall concerns (insubordination, work performance, or supervisory inability). In fact, Flight Chief did not formally document his valid concerns until after Complainant contacted an EEO Counselor. Absent such evidence prior to July 9, 2007, Flight Chief’s increased scrutiny of Complainant’s work and disregard for the CERF chain of command appears unreasonable and likely motivated by another reason. From witnesses’ testimony, it appears that his motivation was Complainant’s sex. This increased scrutiny and public critique of Complainant’s work and supervisory ability served to publically humiliate Complainant in front of her subordinates and peers on a frequent basis.
In addition, Flight Chief subjected Complainant to a third-party hostile work environment when she observed his interactions with her subordinates. The unwarranted public scrutiny and criticism of her subordinates’ work appears unreasonable and likely motivated by another reason as well. Based on witnesses’ testimony, it appears that his motivation was Complainant’s sex. This increased scrutiny and public critique of her subordinates’ work served to publically humiliate and demean the women in front of others which intimidated and demeaned Complainant.
Overall, Flight Chief’s conduct was unwelcomed and based upon Complainant’s sex. His actions and comments were more than simple personality quirks or demonstrations of his autocratic attitude. While Flight Chief was abrasive and a micro-manager with others, he was more so this way with women. He frequently humiliated and intimidated women with his comments and behavior. As a result, he unreasonably interfered with Complainant’s work performance. Based upon this evidence, when viewed in the totality of the circumstances, Flight Chief subjected Complainant to a hostile work environment.
Next, there is a basis for imputing liability to the agency. First, the agency failed to promptly and thoroughly investigate the matter. The agency was on notice prior to September 2006 that at least one woman (co-worker Dreez) believed that Flight Chief harassed women. The agency conducted an informal investigation, and Lt. Col. McGaw made recommendations to address the problems. The record does not reflect that the agency implemented these recommendations."
After the damages hearing in December 2010, the Administrative Judge found that the client was entitled to an award of $125,000 in non-pecuniary compensatory damages. The Judge noted that statements from complainant, her coworkers, and a friend showed that complainant experienced emotional and physical problems, including depression and loss of enjoyment of life, stress and anxiety. She stated that:
"Through credible testimony of Complainant, Mr. Jackson, employee Fivecoat, and LCSW Castrati, the evidence shows that Complainant suffered from emotional harm, mental anguish, inconvenience, loss of enjoyment of life, loss of self-esteem, injury to professional standing at Seymour Johnson, injury to character and reputation at Seymour Johnson, loss of health, sleep problems, anxiety, stress, depression, humiliation, and marital strain from 2006 through 2008 because of the hostile work environment. According to her therapist, she experienced a stress breakdown which necessitated a leave of absence from August 29, through October 9, 2007, and prompted her separation from the agency. Although Complainant had other stress factors in her life, the record does not reflect that Complainant suffered from any of these conditions prior to becoming a supervisor under Flight Chief. Subsequent to leaving the agency, Complainant still suffers from the residual effects of anxiety, depression, fearfulness, and post-traumatic stress disorder.
In similar cases, the Commission has held that $125,000 is an appropriate award for non-pecuniary damages. See e.g. Ellis v. Department of Defense, EEOC Appeal No. 01A13314 (April 29, 2003) (award of $125,000 where agency's discrimination exacerbated complainant's preexisting impairment, which caused intense physical and emotional pain. Complainant also experienced nightmares, fear, financial problems, mental anguish, loss of enjoyment of life, exhaustion, and difficulty concentrating for over 18 months.); Bohac v. Department of Agriculture, EEOC Appeal No. 07A00030 (September 29, 2003), request for reconsid. denied EEOC Request No. 05A40111 (January 5, 2004) (award of $110,000 where complainant suffered several years of depression, headaches, muscle spasms, and problems at home with her family, as well as damage to her professional reputation); Sanford v. United States Postal Serv., EEOC Appeal No. 01A31818 (May 13, 2004) (award of $115,000 where complainant was diagnosed with post traumatic stress disorder, and experienced a number of physical and emotional symptoms, including anxiety attacks, irritability, and inability to participate in social events); Santiago v. Department of the Army, Appeal No. 01955684 (October 14, 1998) (awarding $125,000.00 in non-pecuniary damages where complainant suffered depression and other emotional and mental disorders, and severe chest and stomach pains, digestive problems, and incidents of shortness of breath due to three years of verbal abuse and sex and age-based discrimination by her supervisor).
Accordingly, in this case, an award of $125,000 in non-pecuniary damages is appropriate to compensate complainant for her two years of severe physical and emotional pain and suffering and marital strain during the sex based hostile work environment and the subsequent years of emotional pain and suffering. In that non-pecuniary compensatory damages are designed to remedy a harm, it is not to punish the agency for its discriminatory actions. See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 31112 (1986) (stating that compensatory damages determination must be based on the actual harm sustained and not the facts of the underlying case).
The Judge determined that the award was consistent with awards in similar cases, and was not “monstrously excessive.” The Client was represented by Rosemary Dettling.
WELLARD v. DOJ: Department of Justice liable for Disability Discrimination and Reprisal.
On April 26, 2010, after a lengthy liability hearing, Administrative Judge Richard E. Schneider, of the EEOC’s Washington Field Office, issued a Decision on liability in favor of the Complainant. Judge Schneider found that the U.S. Department of Justice (DOJ), Federal Bureau of Investigation (FBI), discriminated against our client because of her disability (mental and physical) and retaliated against her for engaging in prior EEO when: 1) the granting of her reasonable accommodation request was delayed or denied by the Agency; and 2) she was subjected to a hostile work environment. AJ Schneider held that the FBI discriminated against our client when it failed to ensure that Complainant had an accessible entrance into the Pocatello facility; failed to ensure that devices, such as automatic door openers, were in good working order; delayed and denied providing appropriate office equipment and furniture; and failed to provide a better location to allow her to take naps during the day. The AJ found that the Agency subjected Complainant to a hostile work environment on the basis of her disability when the Agency told her co-workers not to talk to her, questioned her honesty and integrity, and publicly embarrassed her. After the parties submitted multiple briefs on the issue of damages, a four-day damages hearing was conduced in January and February, 2011. Post-hearing briefs were submitted on March 24, 2011. The Judge has not yet ruled on damages. The client was represented by Rosemary Dettling
CLIFFORD v. USPS: $40,000 Awarded for Sex, Age, and Reprisal Discrimination.
Following a finding of sex, age, and reprisal discrimination, EEOC Administrative Judge David Treeter, of the Indianapolis District Office, awarded our client, among other things, $40,000 in non-pecuniary compensatory damages. On appeal, the Commission concurred with the AJ’s award. Complainant was diagnosed with depression, anxiety, and high blood pressure related to the discrimination. Complainant was treated by a physician for these conditions and took medication. In addition, various witnesses testified regarding the change in Complainant’s personality following the discrimination, noting that she became emotionally distraught. Clifford v. U.S. Postal Serv., EEOC Appeal No. 0720100010 (May 18, 2010). Ms. Clifford was represented by Rosemary Dettling.
LAMPKINS v. USPS: $25,000 Awarded for Disability and Reprisal Discrimination.
A FELSC client filed a formal EEO complaint alleging that he was subjected to disability discrimination when his employer, the United States Postal Service, disseminated private medical information during a pre-disciplinary meeting and subjected him to reprisal discrimination when the agency issued him a 14-day suspension. Following a hearing, EEOC Administrative Judge Katie Duderstadt, of the San Antonio District Office, found discrimination with regard to both matters. On appeal, the Commission affirmed the Administrative Judge’s decision. According to the record, during the pre-disciplinary meeting, a union steward and a supervisor were given a copy of a report that contained detailed medical records, including documentation of complainant’s symptoms when he was admitted to the hospital, and the resulting diagnosis. The Commission noted that documentation concerning an individual’s diagnosis is without question medical information that must be treated as confidential under the EEOC Regulations. Thus, the agency’s release of complainant’s medical information was a per se violation of the Rehabilitation Act. With regard to the suspension, the Commission noted that management was aware of complainant’s prior EEO activity and issued the suspension within a period of time such that a retaliatory motive can be inferred. In addition, while the agency asserted that complainant submitted altered medical documentation in support of a leave request, the Administrative Judge credited complainant’s testimony that he did not intend to defraud the agency when he submitted “sanitized” medical documentation. In addition, as complainant had no previous discipline, the 14-day suspension was not commensurate with the agency’s progressive discipline policy, and the agency had previously accepted similarly redacted medical documentation. The agency was ordered to pay complainant $25,000 in non-pecuniary compensatory damages for pain and suffering, as well as rescind the notice of suspension and restore any leave used as a result of the discrimination. Melvin D. Lampkins v. United States Postal Service, EEOC Appeal No. 0720080017 (December 8, 2009). Mr. Lampkins was represented by Rosemary Dettling and Joanne Donohue.
-In a negotiated settlement, FELSC secured $98,000 in compensatory damages for a U.S. Department of Homeland Security employee, plus attorney fees.
-FELSC represented a U.S. Department of Homeland Security employee at an EEOC hearing in Detroit. After the hearing, the EEOC Administrative Judge awarded the employee a retroactive promotion, backpay, $2,000 in compensatory damages, and attorney fees. The Commission also directed that a notice of discrimination be posted at the employee's workplace and that the responsible management officials be required to undergo training.
-In a negotiated settlement, FELSC secured $40,000 for a U.S. Department of Justice employee, plus attorney fees.
-FELSC represented a U.S. Postal Service Letter Carrier at an EEOC hearing in Kentucky. After the hearing, the EEOC Administrative Judge awarded the employee $40,000 in compensatory damages for emotional distress arising from the discrimination, harassment, and retaliation. The Commission also directed that a notice of discrimination be posted at the employee's workplace and that the responsible management officials be required to undergo appropriate training to prevent future occurrences of retaliatory conduct.
-FELSC represented a U.S. Department of Homeland Security employee at an EEOC hearing. After the hearing, the EEOC Administrative Judge awarded the employee $10,000 in compensatory damages and attorney fees. The Commission also directed that a notice of discrimination be posted at the employee's workplace and that the responsible management officials be required to undergo training.
-FELSC was awarded attorney fees and travel costs as a sanction against the U.S. Department of Commerce after the Administrative Judge stopped the hearing mid-way due to the Agency’s failure to provide documents during discovery. The Judge continued the hearing until January 2010.
-FELSC represented a U.S. Postal Service employee at an EEOC hearing in Atlanta. After the hearing, the EEOC Administrative Judge awarded the employee $20,000 in compensatory damages and attorney fees.
-FELSC represented a U.S. Department of Veterans Affairs employee at an EEOC hearing in Seattle. After the hearing, the EEOC Administrative Judge awarded the employee $10,000 in compensatory damages and attorney fees. The Commission also directed that a notice of discrimination be posted at the employee's workplace and that the responsible management officials be required to undergo training.
-FELSC represented a U.S. Postal Service at an EEOC hearing in New Orleans. The EEOC judge awarded the employee $5,000 in compensatory damages and attorney fees. The Judge told the Postal Service to consider imposing discipline on the employees and officials found to have been involved in the violation of the client's rights.
-FELSC assisted an employee of the EEOC with her appeal for Workers Compensation for a work-related injury. When the employee came to FELSC, her OWCP claim had been denied by the OWCP. FELSC provided additional information to the OWCP and the decision was overturned. The OWCP accepted the employee's injury as compensable.
-FELSC recovered over $8,000 in attorney fees against the U.S. Department of Justice as a sanction during litigation. The EEOC Administrative Judge appointed to the case awarded attorney fees early in discovery because DOJ failed to conduct a timely investigation and failed to provide the EEOC and FELSC with a copy of the Report of Investigation.
-One week prior to a hearing, FELSC settled a male military employee’s sex harassment case against his female supervisor. FELSC obtained attorney fees and the employee’s desired reassignment to another military base.
-A federal employee came to FELSC after he was put on administrative leave and charged with threatening to kill his supervisor. FELSC represented the employee at an internal disciplinary hearing. After the hearing, the agency charged the employee with misusing a government computer. The agency set up a second disciplinary hearing. FELSC represented the employee at the second disciplinary hearing. Shortly thereafter, FELSC filed an EEO complaint on the employee’s behalf. Within one month of filing the complaint, the Agency agreed to settle the employee’s case. The Agency agreed to (1) drop the internal investigations, (2) close them out with a finding of no wrongdoing, (3) pay attorney fees and back pay, and (4) move the employee to a new supervisor.
-In a negotiated settlement, FELSC obtained an award of $2500 in compensatory damages, attorney fees, and an upgraded performance evaluation for an employee of a federal defense agency who alleged discrimination based on race, age, gender and retaliation.
-In a negotiated settlement, FELSC obtained an award of $5,339 in compensatory damages, an upgraded performance evaluation, and attorney fees.
-In a negotiated settlement agreement, FELSC convinced a government agency to (1) remove information from an employee's personnel file related to a proposed five-day suspension without pay, (2) restore 40 hours of annual leave, (3) agree to not initiate an investigation of the employee by the Office of the Inspector General, and (4) pay attorney fees.
-In a negotiated settlement, FELSC recently secured expungement of a U.S. Department of Transportation employee’s personnel files and attorney's fees.
-FELSC recently secured a paid early retirement for a U.S. Postal Service employee after the employee was told in writing she was going to be terminated.
-FELSC represented a U.S. Postal Service employee at a hearing before the EEOC. After the hearing, the EEOC Administrative Judge awarded the employee $25,000 in compensatory damages for emotional distress arising from retaliation and attorney fees. The Commission also directed that a notice of discrimination be posted at the employee's workplace and that the responsible management officials be required to undergo training to prevent future occurrences of retaliatory conduct.
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