Devon H.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.Download PDFEqual Employment Opportunity CommissionMar 21, 20190120171868 (E.E.O.C. Mar. 21, 2019) Copy Citation 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. 0120171868 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. 0120171868 3 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. 0120171868 4 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. 0120171868 5 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. 0120171868 6 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. 0120171868 7 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. 0120171868 8 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 Copy with citationCopy as parenthetical citation