Archie G.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Dec 7, 2018

0120171247 (E.E.O.C. Dec. 7, 2018)

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

Archie G.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120171247

Agency Nos. FSIS-2008-00309; FSIS-2008-00739

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 January 17, 2017, final
decision concerning his entitlement to compensatory damages and attorney’s fees.

BACKGROUND

Complainant, a Food Inspector in the Jackson, Mississippi District, filed two formal EEO
complaints alleging that the Agency discriminated against him on the bases of sex (male), race
(African-American), national origin (Black), and in reprisal for prior protected EEO activity when:
(1) on January 29, 2008, his leave request was denied and he was charged with absent without
leave (AWOL); (2) on January 29, 2008, he was assigned to report for temporary duty to a plant
that was 366 miles from home, with less than 24 hours’ notice; (3) he was suspended without pay
June 8 to June 21, 2008; and (4) on an unspecified date, management challenged his mileage
claimed on an April 2008 travel voucher and refused reimbursement.

Following investigations, Complainant initially requested a hearing before an EEOC
Administrative Judge (AJ). Complainant withdrew his request and the AJ assigned to the matter
remanded the matter for a final agency decision (FAD-1).

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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In FAD-1, the Agency determined that Complainant failed to show that he was subjected to
discrimination or reprisal as to claims (1) and (2). However, the Agency found that the record
established mixed-motive reprisal as to claims (3) and (4). As a result, the Agency ordered that
disciplinary action be considered against the responsible management official (Complainant’s
supervisor), that a notice be posted at the Agency’s facility, and that Complainant be awarded
attorney’s fees if he was represented by an attorney. In addition, the Agency provided
Complainant the opportunity to present evidence establishing his entitlement to damages.

The Agency subsequently issued a second final agency decision (FAD-2) regarding Complainant’s
entitlement to compensatory damages and attorney’s fees. In FAD-2, the Agency noted that it did
not receive any submissions from Complainant in support of a claim for compensatory damages
or other relief. Accordingly, the Agency awarded Complainant no compensatory damages and
attorney’s fees. The instant appeal followed.

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 him as nearly as possible to the position he 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)

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To receive an award of compensatory damages, a complainant must demonstrate that he or she has
been harmed by 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 recon. den’d, 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.

Here, the Agency asserted that due to Complainant's failure to submit any evidence regarding
damages in accordance with the Order of Relief issued in FAD-1, it could not award Complainant
any damages in the instant matter. On appeal, Complainant argues the merits of FAD-1, seeking
reinstatement of his complaint and requesting unspecified compensatory damages. Complainant
did not file an appeal of FAD-1 within 30 days of its issuance; therefore, we find that
Complainant’s arguments regarding FAD-1 are untimely. In addition, Complainant presented no
evidence to support an entitlement to compensatory damages despite being given the opportunity
before the Agency and now on appeal. Complainant’s assertions regarding entitlement to
compensatory damages are not supported by any documentary or testimonial evidence. Lastly, we
note that there is no evidence that Complainant was ever represented by an attorney, and he has
not asserted any claim for attorney’s fees; therefore, we find that he is not entitled to an attorney’s
fees award as well.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision herein because
the record is devoid of evidence to support the entitlement to damages or attorney’s fees.

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.
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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. 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 (S0610)

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. 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 (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.

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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

December 7, 2018
Date