Devon H.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Mar 21, 2019

0120171868 (E.E.O.C. Mar. 21, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Devon H.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120171868

Hearing Nos. 430-2010-00295X; 430-2009-00434X;
& 430-2009-00435X

Agency Nos. HS-TSA-05282-2006; HS-TSA-08579-2008;
& HS-TSA-01276-2010

DECISION

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 September 15, 2016, final
decision awarding compensatory damages following EEOC decisions finding that the Agency
subjected him to unlawful 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 AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal
at the Agency’s field office in Charlotte, North Carolina.

The instant appeal stems from previous EEOC decisions where the EEOC found discrimination
and the Agency’s subsequent decision regarding compensatory damages for those claims. The
procedural history was delineated in previous EEOC decisions.

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.
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2
See EEOC Appeal No. 0120131083 (Dec. 3, 2015), request for reconsideration denied, EEOC
Request No. 0520160142 (April 15, 2016); EEOC Appeal Nos. 0120131649 and 0120131684
(December 18, 2015). In this appeal, Complainant only challenges the compensatory damage
award, not the findings of discrimination or any other remedy.

Complainant prevailed on the following claims:

HS-TSA-05282-2006

Whether the Agency discriminated against Complainant based on disability and reprisal
when:

2. On September 1, 2006, Complainant learned that the Agency did not select him
for a J-Band Supervisory Federal Air Marshal (SFAM) position, advertised under
Vacancy Announcement Number FAMS-ALL-06-0030, at the Charlotte Field
Office.

HS-TSA-08579-2008/HS-TSA-01276-2010

Whether the Agency discriminated against Complainant based on reprisal when:

4. On an unspecified date in 2008, a Federal Air Marshal (FAM) informed
Complainant that a FAM and an Assistant Special Agent in Charge (ATSAC)
entered into a bet over the outcome of Complainant's previously filed EEO
complaint;
9. On May 21, 2010, after Complainant informed his supervisor of his intent to file
an EEO complaint, the Special Agent in Charge (SAC) leaped out of his chair,
reached toward Complainant, began shouting at him, told Complainant not to
threaten him, and said that Complainant's "communication skills suck."
Complainant felt physically threatened and reported this incident to management
as an assault, but no action was taken; and
11. On or around May 28, 2010, Complainant learned that he was under an internal
investigation.

In EEOC Appeal Nos. 0120131083, 0120131649, and 0120131684, the Commission ordered the
Agency to conduct and complete a supplemental investigation on the issue of Complainant's
entitlement to compensatory damages, including his pecuniary or nonpecuniary losses regarding
claims 2, 4, 9, and 11. Following the completion of the Compensatory Damages Report of
Investigation, the Agency issued a Decision on Compensatory Damages on September 15, 2016.
The Agency concluded that Complainant was entitled to $60,000.00 in nonpecuniary,
compensatory damages ($50,000 for claim 2; $10,000 for claims 4, 9, and 11 combined) and
$343.86 in pecuniary damages. Complainant filed the instant appeal challenging the findings of
the Agency’s Decision on Compensatory Damages.

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ANALYSIS AND FINDINGS

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 Chapter 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”).

When discrimination is found, the Agency must provide a complainant with a remedy that
constitutes full, make-whole relief to restore her as nearly as possible to the position she would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747,
764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S.
Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the
Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination
under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §2000e
et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses
(i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish)
as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212
(1999), the Supreme Court held that Congress afforded the Commission the authority to award
compensatory damages in the administrative process. For an employer with more than 500
employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary
damages is $300,000. 42 U.S.C. § 1981a(b)(3).

To receive an award of compensatory damages, a complainant must demonstrate that he or she
has been harmed because of the agency’s discriminatory action; the extent, nature, and severity
of the harm; and the duration or expected duration of the harm. Rivera v. Dep’t of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration denied, EEOC Request
No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.

Pecuniary Damages

With respect to Complainant’s request for additional pecuniary damages, pecuniary losses are
out-of-pocket expenses incurred due to an employer’s unlawful action, including job-hunting
expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses,
and other quantifiable out-of-pocket expenses. Past pecuniary losses are the pecuniary losses that
are incurred prior to the resolution of a complaint. The Commission, however, requires
documentation in support of these expenses, typically in the form of receipts, bills, or physician’s
statements.
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See Complainant v. United States Postal Service, EEOC Appeal No. 01981955 (October 3,
2000); Complainant v. Social Security Administration, EEOC Appeal No. 01972427 (March 8,
2000). We agree with the Agency’s decision to not award pecuniary damages for the $2,916.73
in prescription expenses as well as $6.43 per month for life for medication related to
Complainant’s medical condition that predated the EEO incidents. Although Complainant
contends that the Agency’s ongoing discriminatory actions played a role in his preexisting
medical condition, we agree with the Agency that Complainant has not established a causal
connection between the pecuniary damages requested and the Agency’s discriminatory actions.
We concur with the Agency’s award of pecuniary damages totaling $343.86 for the cost of
mailing documents relating to his EEO complaints was the appropriate award for pecuniary
damages.

Nonpecuniary Damages

Nonpecuniary damages must be limited to compensation for the actual harm suffered as a result
of the Agency's discriminatory actions. See Carter v, Duncan-Higgans, Ltd., 727 F.2d 1225
(D.C. Cir. 1994); Notice at 13. A proper award should take into account the severity of the harm
and the length of time that the injured party suffered the harm. Additionally, the amount of the
award should not be “monstrously excessive” standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded in similar cases. See
Complainant v. United States Postal Service, EEOC Appeal No. 01972555 (April 15, 1999),
(citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Finally, we note that in
determining nonpecuniary, compensatory damages, the Commission has also taken into
consideration the nature of the Agency's discriminatory actions. See Utt v. United States Postal
Service, EEOC Appeal No. 0720070001 (March 26, 2009); Brown-Fleming v. Dep't of Justice,
EEOC Appeal No. 0120082667 (October 28, 2010).

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.

With regard to claim 2, Complainant requested $300,000.00 and the Agency awarded
Complainant $50,000.00 in nonpecuniary, compensatory damages. Complainant submitted
statements from his wife and himself as evidence of the stress and anxiety he suffered as a result
of the Agency’s actions. Specifically, the statements provided by Complainant show that he
experienced anxiety, insomnia, loss of self-esteem, feelings of humiliation, weight gain, and
severe acid reflux which affected what he was able to eat and digest. Complainant stated he has
been diagnosed with high blood pressure. His wife stated he suffered from stress which caused a
deterioration of their home life.
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He also experienced an exacerbation of his pre-existing esophageal condition such as increased
stomach acid and acid reflux from anxiety. Complainant continued working for ten years for the
Agency while his EEO claims were ongoing. As such, we concur with the Agency’s award of
$50,000.00 in nonpecuniary, compensatory damages as compensation to Complainant for the
harm caused by the Agency in his nonselection claim. We find this amount is consistent with the
amount awarded in similar cases. See Harvey D. v. Dep’t of State, EEOC Appeal No.
0120171079 (Aug. 23, 2018) ($50,000.00 in nonpecuniary damages awarded where the agency
discriminated against complainant on the basis of disability when he was denied an appointment
to a higher-level position); Complainant v. Dep't of Justice, EEOC Appeal No. 0120123467
(April 3. 2015) ($50,000 in nonpecuniary damages awarded where complainant testified that she
suffered stress, shock and humiliation, which manifested itself in weight fluctuations, depression,
anxiety, insomnia, and nightmares as a result of denied promotion).

With regard to claims 4, 9, and 11, Complainant requested $150,000.00 and the Agency awarded
$10,000.00 for nonpecuniary, compensatory damages. Complainant reiterated his statements
regarding the affect the ongoing discrimination had on his health. Specifically, Complainant
stated after he was assaulted by SAC, he felt fear and the threat of losing his job for two years
while he was under an internal investigation. Based on our review of the record and statements
provided, we concur with the Agency’s award of $10,000.00 in nonpecuniary, compensatory
damages as compensation to Complainant for the harm caused by the Agency. We find this
amount is consistent with amounts awarded in similar cases. See Onie R. v. Dep’t of Defense,
EEOC Appeal No. 0120141870 (June 16, 2016) ($3,000 in nonpecuniary damages awarded
where agency's reprisal discrimination resulted in anxiety, feelings of intimidation and
disrespect, despondency, sleep loss, fatigue, difficulty in concentrating, hypersensitivity, feelings
of guilt, and fear); Complainant v. Dep’t of the Treasury, EEOC Appeal No. 0120133266
(February 11, 2015) ($10,000 in nonpecuniary damages awarded where agency discriminated
against complainant when her supervisor threatened complainant with disciplinary action and
refused to modify her workload which exacerbated her existing medical condition, as well as
impacted her emotional wellbeing), request for reconsideration denied, EEOC Request No.
0520150280 (July 30, 2015).

CONCLUSION

Accordingly, we AFFIRM the Agency’s Decision on Compensatory Damages issued on
September 15, 2016, and we ORDER the Agency to comply with the Order herein.

ORDER
To the extent it has not already done so, the Agency shall:
1. Within 60 days from the date this decision is issued, the Agency shall pay
Complainant pecuniary, compensatory damages in the amount of $343.86.
2. Within 60 days from the date this decision is issued, the Agency shall pay
Complainant nonpecuniary, compensatory damages in the amount of $60,000.00.
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The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission’s Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.
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.
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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 (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.
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.

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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 21, 2019
Date