07a40124
05-19-2005
Antonia Looney, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Antonia Looney v. Department of Homeland Security
07A40124, 01A53252
May 19, 2005
.
Antonia Looney,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal Nos. 07A40124, 01A53252
Agency Nos. I-97-0173, I-99-W081, I-98-W004, I-99-W089
Hearing Nos. 350-AO-8157X, 340-AO-3172X, 340-98-3780X
DECISION
The agency filed an appeal (07A40124), to the Commission after an EEOC
Administrative Judge (AJ) issued an Order finding discrimination on the
instant complaints. Complainant alleged discrimination on the bases
of age (date of birth: November 27, 1947), race (Hispanic/Indian),
religion (Lutheran), and reprisal when she was subjected to a hostile
work environment when: (1) on April 28, 1997, she was suspended for
two days; (2) on May 12, 1997, she was detailed to the San Diego Sector
Border Patrol; (3) from May 12, 1997 through October 1998, her detail to
San Diego, California was extended on seven different occasions; (4) on
October 5, 1998, she was transferred to Tucson Sector Border Patrol; and
(5) on November 3, 1998, she was issued a Notice of Five Day Suspension.
After an investigation, complainant requested a hearing before an AJ.
The AJ, after a hearing, issued a decision dated June 16, 2004, finding
discrimination on the basis of reprisal for all five claims. The AJ's
decision found that complainant was not discriminated against on the
bases of age, race, or religion.
The AJ ordered the following remedy:
Complainant is awarded back pay and attendant benefits to be calculated
by the agency, from the date of complainant's demotion through the date
this case is decided.
Complainant is awarded 104 days of sick leave pay and attendant benefits
for the Assistant Regional Director Detention and Deportation position
at the appropriate GS grade and step complainant would have occupied
had she remained in Laguna Niguel, California.
Complainant is entitled to back pay and lost wages for the 2 day
suspension.
Complainant is awarded $1,941.03 in relocation expenses.
Complainant is awarded $195,000.00 in non-pecuniary compensatory damages.
Complainant is awarded $89,612.60 in attorney's fees and costs.
Complainant is awarded $441.84 in costs in reimbursement for obtaining
the presence of a witness at the hearing.
The agency, on July 30, 2004, issued a decision agreeing with the AJ's
decision with regard to discrimination and part of the AJ's order for
remedies. However, the agency appeals the amount of non-pecuniary
compensatory damages. Since the damage award is the only matter
appealed to the Commission, this decision will only address the agency's
decision not to implement the AJ's decision with regard to non-pecuniary
compensatory damages. Complainant subsequently filed an appeal (01A53252)
to the Commission requesting compliance with the agency's decision to
implement those provisions of the AJ award that are not being appealed
by the agency.
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.
The AJ ordered $195,000.00 in non-pecuniary compensatory damages due to
the emotional suffering by complainant as a result of the retaliatory
conduct. The AJ found that the agency's actions had permanent and
substantially long term effects. The AJ found that complainant suffered
from: bouts of crying; humiliation; depression; destruction of her spirit
and confidence; feelings as if she had no purpose in life; fluctuating
weight problems; rashes; anxiety; nightmares relating to her supervisor;
difficulty coping with life; being tense and unable to sleep when she lays
next to her husband in bed; and was disinterested in sexual intercourse.
As a result of medication taken for the emotional distress, complainant
felt clumsy, shaky, considered herself to be unsafe operating a motor
vehicle, and a nervous wreck. Complainant's husband testified that
complainant was extremely stressed, experienced mood swings, became
sick more often, kicked the bed while sleeping, and was exhausted to
the point were she remained in bed for twenty hours during the day.
He testified that complainant is unable to deal with any negativity and
is extremely self conscious about her communication skills, interaction
with others, and loss of professional reputation and standing in the
community. Complainant's friends testified to complainant's change in
appearance, including significant aging in short amount of time, facial
appearance being swollen and sunken, and complainant becoming withdrawn.
Complainant's psychologist testified that complainant suffered from a
significant amount of depression.
The agency argues, on appeal, that the amount of non-pecuniary
compensatory damages is excessive. The agency argues that there was no
testimony clearly indicating how much longer complainant was expected to
suffer from the ailments. Further, there is no testimony that she was
hospitalized, became homeless, or suffered dissolution of the marriage,
which the agency argues are common factors in awards of $100,000.00.
The agency argues that the record of treatment does not reflect the type
of deep, emotional trauma that higher awards are intended to address.
Finally, the agency argues that the AJ did not consider the possibility
that at least some of complainant's symptoms were caused by her allergies.
The agency purposed, in its appeal, to lower the award to $75,000.00.
The Commission has held that evidence from a health care professional
is not a mandatory prerequisite for recovery of compensatory damages for
emotional distress. Lawrence v. United States Postal Service, EEOC Appeal
No. 01952288 April 18, 1996); Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995); Bernard v. Department of
Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998).
In determining compensatory damages, the Commission strives to make
damage awards for emotional harm consistent with awards in similar cases.
Insofar as complainant has submitted evidence via testimony of emotional
distress, we note that the Commission has awarded compensatory damages
in cases somewhat similar to complainant's in terms of harm sustained.
Read v. Department of Homeland Security, EEOC Appeal No. 01A50353 (March
29, 2005)(awarded $130,000 in non-pecuniary compensatory damages after
finding that complainant suffered from hives, severe stomach problems,
heartburn, burning in her stomach and rectal bleeding, acid reflux, sleep
disturbance, weight gain, fatigue, vertigo and feelings of guilt, and
suicidal ideation after being sexually harassed); Booker v. Department
of Defense, EEOC Appeal No. 07A00023 (Aug. 10, 2000), request for
reconsideration denied, EEOC Request No. 05A01284 (Sept. 26, 2000)
(awarded $150,000 in non-pencuniary compensatory damages after finding
that agency discriminatorily reclassified complainant's position and
issued an �Order to Restrain Contact�; harm to complainant included
three attempts at suicide).
After considering the nature of the agency's actions which involve
detailing complainant to a location for an extended period of time to a
location far from her home, in conjunction with the extensive testimony as
to the harm to complainant, we find that the AJ did not err in awarding
complainant $195,000.00 in non-pecuniary compensatory damages. Finally,
we note that this award is not �monstrously excessive� and is consistent
with the amounts awarded in similar cases. The Commission further notes
that it has slightly modified the wording of the relief ordered and to
include a provision requiring EEO training and a provision requiring
the agency to consider disciplining the agency official responsible for
the retaliation.
With regard to complainant's appeal seeking compliance, we find that,
given the Order below, the agency has new time lines in which to comply.
Thus, complainant can not show that the agency is in noncompliance at
this time and the instant appeal alleging noncompliance with the agency
decision is premature. If the agency fails to comply with the Order
herein then complainant may file a petition for enforcement with the
Commission pursuant to 29 C.F.R. � 1614.503.
The agency's decision finding discrimination on the basis of retaliation
is AFFIRMED. The agency's decision with regard to non-pecuniary
compensatory damages is REVERSED and we REMAND the matter to the agency
to comply with the Order issued by the AJ, reprinted as modified, in
pertinent part, herein.
ORDER
Within 30 days of the date this decision becomes final the agency shall
take the following actions:
The Agency shall determine the appropriate amount of back pay with
interest and other benefits due Complainant for the period starting from
complainant's demotion as referred to by the AJ pursuant to 29 C.F.R. �
1614.501, and shall pay that amount to Complainant. Complainant shall
cooperate in the Agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the Agency.
Reimburse complainant for 104 days of sick leave pay and attendant
benefits for the Assistant Regional Director Detention and Deportation
position at the appropriate GS grade and step complainant would have
occupied had she remained in Laguna Niguel, California.
Complainant is entitled to back pay and lost wages for the 2 day
suspension.
Pay complainant $1,941.03 in relocation expenses (pencuniary compensatory
damages).
Pay complainant $195,000.00 in non-pecuniary compensatory damages.
Pay complainant $89,612.60 in attorney's fees and costs.
Pay complainant $441.84 in costs in reimbursement for obtaining the
presence of a witness at the hearing.
Post the attached NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION (after being signed by the Agency's duly
authorized representative) in conspicuous places, including all places
where notices to employees are customarily posted, as specified herein.
The agency shall consider taking disciplinary action against the
individual responsible for making the agency's decision in this matter.
If the agency decides to take disciplinary action, it shall identify in
its compliance report the action taken. If the agency decides not to
take disciplinary action, it shall set forth in its compliance report
the reason(s) for its decision not to impose discipline.
Conduct EEO training for supervisors and managers at Detention and
Deportation, Western Regional Office of the Immigration and Naturalization
Service in Laguna Niguel, California facility.
The agency shall send evidence that they have complied with provisions
1 - 10 of this Order to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Detention and Deportation, Western
Regional Office of the Immigration and Naturalization Service in Laguna
Niguel, California facility copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (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 ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (T0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 19, 2005
__________________
Date
NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ____________ which found that a
violation equal employment laws has occurred at the agency's Detention and
Deportation, Western Regional Office of the Immigration and Naturalization
Service in Laguna Niguel, California facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have discriminated against the complainant on
the basis of reprisal. The facility was ordered to provide complainant
pay and benefits lost, non-pecuniary compensatory damages, costs and
attorney's fees. This facility will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614