Cleveland C.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Sep 29, 2020

2019002407 (E.E.O.C. Sep. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cleveland C.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 2019002407 EEOC Hearing Nos. 410-2015-00248X 410-2016-00258X Agency Nos. IRS-14-0223-F IRS-15-1166-F DECISION On December 10, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 23, 2018, final decision concerning his equal employment opportunity (EEO) complaint alleging employment 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 decision. ISSUE PRESENTED The issue is whether the Agency properly decided to award Complainant $7,500.00 in non- pecuniary compensatory damages; $1,775.00 in attorney’s fees; and no pecuniary compensatory damages or costs, following its decision that Complainant was discriminated against based on his disability. 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. 2019002407 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tax Examining Technician at the Agency’s Wage and Investment Service Center, Compliance Services Collection Operations in Chamblee, Georgia. On February 20, 2013, Complainant filed the first of three EEO complaints (Agency case numbers IRS-13-0176-F; IRS-14-0223-F; and IRS-15-1166-F) alleging that the Agency subjected him to discrimination and a hostile work environment based on his disability, race, and sex, and in reprisal for protected EEO activity. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notices of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings and the AJ consolidated his complaints. On March 23, 2018, the AJ dismissed Complainant’s hearing request, pursuant to his withdrawal of his hearing request, and remanded Complainant’s consolidated complaint to the Agency to issue a final decision. On June 14, 2018, the Agency issued a final decision finding that Complainant established discrimination for two of his claims.2 The Agency found that the Agency discriminated against Complainant based on his disability (legally blind) when it failed to provide an accommodation during a classroom training session in February 2014, and when it unreasonably delayed providing Complainant’s accommodation of a speech recognition software. As part of the remedies, the Agency determined that Complainant was entitled to compensatory damages due to the Agency’s lack of good faith regarding Complainant’s requests for reasonable accommodations, and attorney’s fees and costs. The Agency found that Complainant did not establish unlawful discrimination or harassment for his other claims. Complainant appealed the Agency’s final decision, which the Commission affirmed in Cleveland C. v. Department of Treasury, EEOC Appeal No. 0120182460 (September 24, 2019). On November 23, 2018, the Agency issued a final decision on Complainant’s claim for compensatory damages, attorney’s fees, and costs. The Agency awarded Complainant $7,500.00 in non-pecuniary compensatory damages for feeling embarrassed, degraded, ostracized, and anxious, which negatively impacted his work and family relationships. In support of its award, the Agency cited to Edwards v. Department of Veterans Affairs, EEOC Appeal Nos. 01A46059, 01A45599 (February 24, 2006) and Langley v. Social Security Administration, EEOC Request No. 05A50413 (September 28, 2006), in which the complainants were awarded $7,500.00 for emotional distress from disability discrimination. The Agency did not award any pecuniary compensatory damages because Complainant only offered general claims that he missed overtime opportunities and took leave. 2 Complainant established discrimination in claims contained in Agency case numbers IRS-14- 0223-F and IRS-15-1166-F. 2019002407 3 The Agency awarded Complainant $1,775.00 in attorney’s fees. The Agency noted that Complainant’s attorney did not submit a verified statement, as required by 29 C.R.F. §1614.501(e), but it awarded $1,775.00 based on an invoice sent to Complainant. The Agency found that while Complainant requested reimbursement for the $3,500.00 that he paid upfront to his attorney, there was nothing to support any attorney’s fees greater than $1,775.00. In addition, the Agency did not award any costs because Complainant did not submit a claim for costs. Complainant filed the instant appeal, and he submitted a statement and documents for his appeal. The Agency did not respond to Complainant’s appeal. CONTENTIONS ON APPEAL On March 27, 2019, Complainant faxed a statement regarding “2 more cases,” and he provided documents that he claims show how people who joined the Agency after Complainant had advanced. Complainant submitted additional documents on April 1, and April 11, 2019. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). As an initial matter, we find that Complainant’s supporting statement and documents are untimely. The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). Complainant filed his materials on March 27, April 1, and April 11, 2019, which was past 30 days after he filed his appeal on December 10, 2018. Accordingly, we find that Complainant’s statement and documents are untimely. For the sake of argument, we find that even if Complainant’s statement and documents were considered timely, they do not address the Agency’s final decision on Complainant’s claim for compensatory damages, attorney’s fees, and costs. To the extent that Complainant is raising “2 more cases,” the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal.3 See Hubbard v. Dep't of Homeland Security, EEOC Appeal 3 Should he wish to pursue these new claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. For timeliness purposes, if Complainant’s initial contact 2019002407 4 No. 01A40449 (Apr. 22, 2004). Accordingly, we will not address Complainant’s arguments or evidence submitted for this appeal. Non-Pecuniary Compensatory Damages Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.302, Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than to punish the agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or be “monstrously excessive” standing alone but should be consistent with the amounts awarded in similar cases. See Ward- Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. 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)). Objective evidence of compensatory damages can include statements from Complainant concerning his 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. Id. 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. Id. Complainant’s own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. The more inherently degrading or humiliating the defendant’s action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. would have been timely on the date he filed his appeal (March 5, 2019), then Complainant’s contact will be deemed timely if initiated within ten (10) days of the date he receives this decision. 2019002407 5 An award of non-pecuniary compensatory damages should reflect the extent to which an agency’s discriminatory action directly or proximately caused the harm, as well as the extent to which other factors also caused the harm. See 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 his claim and proof linking the damages to the alleged discrimination. See Papas v. U.S. Postal Serv., EEOC Appeal No. 01930547 (Mar. 17, 1994); Mims v. Dep't of the Navy, EEOC Appeal No. 01933956 (Nov. 23, 1993). In this case, Complainant only offered his own statement as evidence of his non-pecuniary compensatory damages. Complainant stated that he suffered from stress, worry, fear, and anxiety from the Agency’s disability discrimination, and that the stress and anxiety affected his relationships with his children. Complainant also stated that he felt embarrassed and humiliated in front of his coworkers. We note that Complainant has not provided any arguments or evidence to challenge the Agency’s decision to award $7,500.00 in non-pecuniary compensatory damages and no pecuniary compensatory damages. We find that the Agency’s award of $7,500.00 for non-pecuniary compensatory damages is consistent with other Commission decisions. See, e.g., Robinson v. Dep’t. of the Army, EEOC Appeal No. 01A31123 (May 26, 2004) ($7,500.00 in non-pecuniary compensatory damages based on the complainant’s testimony about mental anguish, emotional stress, lowered professional status, a reduction in his ability to advance his career, humiliation, embarrassment, and intimidation). However, the Commission has found that an award of non-pecuniary damages may consider the present-day value of comparable awards. Lara G. v. U.S. Postal Serv., EEOC Request No. 0520130618 (June 9, 2017). Given the nearly 15-year interval between the comparable award in EEOC Appeal No. 01A31123, we find it appropriate to increase Complainant’s award from $7,500 to $10,308.75.4 See Gerald L. v. Tennessee Valley Auth., EEOC Appeal No. 0120171266 (Oct. 23, 2018). In addition to being consistent with the amount awarded in similar cases, we also find that this award is not “monstrously excessive” standing alone and is not the product of passion or prejudice. As such, we will modify the Agency’s decision to award Complainant $10,308.75 in non-pecuniary compensatory damages affirm its decision to award no pecuniary compensatory damages. 4 The increase in amount of damages owing to the lapse of time is determined with reference to the U.S. Bureau of Labor Statistics’ CPI Inflation Calendar, found at https://www.bls.gov/data/inflation_calculator.htm. 2019002407 6 Attorney’s Fees By federal regulation, an agency is required to award attorney’s fees and costs for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. 29 C.F.R. § 1614.501(e)(1)(ii). To determine the proper amount of the fee, a lodestar amount is reached by calculating the number of hours reasonably expended by the attorney on the complaint multiplied by a reasonable hourly rate. See Blum v. Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983). There is a strong presumption that the number of hours reasonably expended multiplied by a reasonable hourly rate, the lodestar, represents a reasonable fee, but this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency. 29 C.F.R. § 1614.501(e)(2)(ii)(B). Here, Complainant submitted an invoice from his attorney, which detailed the charges of his work. Complainant’s attorney noted that his hourly rate was $250.00, and the fees for Complainant’s case totaled $1,775.00. We note that the Agency accepted Complainant’s attorney’s hourly rate and the amount of time billed for Complainant’s case. We further note that Complainant did not challenge the Agency’s award of $1,775.00 in attorney’s fees or its decision to not award any costs. Accordingly, we find no reason to disturb the Agency’s award and AFFIRM its decision to provide $1,775.00 in attorney’s fees and no costs. 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 decision regarding non-pecuniary compensatory damages; and AFFIRM its decision regarding attorney’s fees, and pecuniary compensatory damages and costs. ORDER To the extent that it has not already done so, within sixty (60) calendar days from the date this decision is issued, the Agency shall pay Complainant a total of $10,308.75 in non-pecuniary compensatory damages. After the Agency has provided Complainant with the non-pecuniary compensatory award, Complainant shall have sixty (60) calendar days following the end of the tax year in which the final payment is received to calculate the adverse tax consequences of any lump sum award, if any, and notify the Agency. Following receipt of Complainant’s calculations, the Agency shall have sixty (60) days to issue Complainant a check compensating her for any adverse tax consequences established, with a written explanation for any amount claimed but not paid. 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. 2019002407 7 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2019002407 8 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2019002407 9 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 September 29, 2020 Date