0120130174
09-05-2014
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120130174
Agency No. BOP-2010-0305
DECISION
On November 2, 2011, the Agency issued a final decision, finding that it had discriminated against Complainant on the basis of race (black) when it did not select him for a Fabric Worker Supervisor position in January 2010. Nearly a year later, on September 4, 2012, the Agency issued a final decision on remedial measures, awarding Complainant $5,000.00 in non-pecuniary compensatory damages and $16,860.00 in attorney's fees and costs.
On October 9, 2012, Complainant appealed the Agency's final decision regarding compensatory damages. The Commission accepts the appeal, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision.
ISSUES PRESENTED
1. Whether the Agency erred in awarding Complainant $5,000.00 in non-pecuniary compensatory damages?
2. Whether the Agency erred in declining to restore Complainant's annual and sick leave?
BACKGROUND
Complainant worked as a Woodworker Machine Operator Supervisor at a factory in the Agency's Federal Correctional Institution in Talladega, Alabama. In July 2009, he learned that the Agency would be closing the Talladega factory and abolishing 18 positions through a reduction-in-force.1 The old factory was replaced with a new clothing and textile factory, along with new jobs, including three Fabric Worker Supervisor positions.
Complainant applied for a Fabric Worker Supervisor position. But on January 12, 2010, the Agency instead selected three white Woodworker Machine Operator Supervisors from the Talladega facility.
A little over a month later, on February 18, 2010, Complainant contacted an EEO counselor. On March 31, 2010, he filed a formal complaint, alleging discrimination on the bases of race (black), age, and disability when the Agency did not select him for a Fabric Worker Supervisor position in January 2010.
On November 2, 2011, the Agency issued a final agency decision, finding that it had discriminated against Complainant on the basis of race. Specifically, the Agency found that Complainant established a prima facie case of discrimination based on race, but Agency officials failed to articulate a legitimate, nondiscriminatory reason for not selecting him.
The Agency ordered the following relief:
1. Within 60 days of the date of this decision, the Agency shall offer Complainant the position of Fabric Worker Supervisor, WS-3105-07, or a substantially equivalent position at the Talladega facility.
2. The Agency is directed to award Complainant back pay, with interest, and other benefits. Back pay and benefits shall be calculated from January 12, 2010, up to the date on which complainant is offered a Fabric Worker Supervisor position.
3. Complainant may be eligible for compensatory damages. The Agency shall attempt to determine from Complainant an appropriate award for any emotional harm suffered as a result of the discrimination in this case.
4. Complainant is entitled to an award of reasonable attorney's fees.
5. Within 30 days of the date of this decision, the Agency shall post a Notice within the factory at Talladega.
On March 7, 2012, Complainant submitted a request for $300,000.00 in compensatory damages, the restoration of 160 hours of sick leave and 16 hours of annual leave, and attorney's fees. To support his request for $300,000.00 in compensatory damages, Complainant maintained that he began suffering symptoms of anxiety and depression (including headaches and insomnia) in August 2009, after the Agency informed him that the Talladega factory would be closed.
According to Complainant, his anxiety and depression grew worse after he contacted an EEO counselor on February 18, 2010, because his Caucasian coworkers, including the three selectees at issue in this case, found out about his EEO activity and began to treat him negatively. The Caucasian coworkers refused to talk to or eat in the break room with Complainant, making him feel like he was "less than a second class citizen" and that "the Race clock" had been turned back "to the fifties and sixties." In March 2010, they took Complainant's desk out of the factory and placed it in a storage trailer. Such events exacerbated Complainant's symptoms of anxiety and depression. He testified about feeling "anxious, depressed, hopeless, worried, frustrated, helpless, and irritable." In the summer of 2010, his insomnia worsened when he went several nights with only 1.5 hours of sleep. He suffered chest pains and shortness of breath on or two occasions around this period of time.
To support his request for restoration of sick and annual leave, Complainant provided a summary of the sick and annual leave he used, as well as medical records. They showed that from July 2010 to August 2011, Complainant took leave to see doctors and therapists to be treated for stress from work, as well as chest pains.
Final Agency Decision on Compensatory Damages
On September 4, 2012, the Agency issued a final agency decision on compensatory damages. First, the Agency awarded Complainant $5,000.00 for non-pecuniary damages. The Agency initially noted that Complainant claims to have suffered from anxiety and depression nearly five months before the discriminatory nonselection occurred. The Agency found it reasonable to assume that management's failure to select Complainant contributed to his frustration and anxiety over his work situation. After examining similar cases in which employees suffered depress and anxiety from the experience of not being selected for a position, the Agency found it appropriate to award Complainant $5,000.00 in nonpecuniary damages.
The Agency declined to award Complainant $300,000.00 in non-pecuniary damages because most of his emotional harm resulted from his white coworkers allegedly subjecting him to a retaliatory hostile work environment after he initiated EEO counselor contact. Complainant failed to provide any specific evidence that the emotional harm he suffered after February 2010 was caused by management's failure to select him for a Fabric Worker Supervisor position.
Second, the Agency awarded Complainant $16,860 in attorney's fees and costs. Third, the Agency denied Complainant's request to restore the 160 hours of sick leave and 19 hours of annual leave he used between July 2010 and August 2011. The Agency reasoned that while Complainant provided a list of dates he used sick and annual leave, along with copies of leave requests, he provided no evidence connecting his leave usage to harm caused by the Agency's failure to select him for the Fabric Worker Supervisor position.
CONTENTIONS ON APPEAL
On appeal, Complainant does not challenge the Agency's award of attorney's fees and costs. He only challenges the Agency's award of $5,000.00 in non-pecuniary compensatory damages and the Agency's failure to restore the 160 hours of sick leave and 19 hours of annual leave used between July 2010 and August 2011.
In his appellate brief, Complainant appears to argue that he should be entitled to an award of around $125,000.00 in non-pecuniary damages "because the negative reaction of Complainant's co-workers was a foreseeable consequence of its discriminatory failure to select Complainant for the Fabric Worker Supervisor position in 2010." Complainant asserts that it was foreseeable that Complainant would file an EEO complaint to challenge the non-selection, foreseeable that Complainant's co-workers would learn about the complaint, and foreseeable that they would resent Complainant for bringing the complaint, especially considering that one of them stood to be "bumped" from his job if Complainant's claims were successful. Complainant characterizes the coworkers' negative reactions as injuries to Complainant's professional standing and reputation among coworkers.
Similarly, Complainant argues that his use of annual and sick leave was a foreseeable consequence of the Agency's non-selection in that it was foreseeable that Complainant would file an EEO complaint, his coworkers would find out about it, and would react negatively to his EEO activity.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
"The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes a claim of unlawful discrimination may receive, in addition to equitable remedies, 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). 42 U.S.C. � 1981a(b)(3). 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. Id.
The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly, Complainant must submit evidence to show that the Agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't. of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the Agency's discriminatory action directly or proximately caused harm to Complainant and the extent to which other factors may have played a part. EEOC Notice No. 915.002, at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to Complainant, and the duration or expected duration of the harm. Id. at 14.
Non-pecuniary Damages
Non-pecuniary losses are losses that are not subject to precise quantification: 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. 915.002 at 10 (July 14, 1992). Non-pecuniary damages are limited to the amount necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm.2 Carpenter v. Dep't. of Agric., EEOC Appeal No. 01945652 (July 17, 1995).
To demonstrate non-pecuniary damages, a complainant can submit objective evidence, as well as other types of evidence, including:
* a statement by the complainant, explaining how the discrimination affected the complainant;
* statements from others, including family members, friends, and health care providers, that address the outward manifestations of the impact of the discrimination on the complainant; and
* documentation of medical or psychiatric treatment related to the effects of the discrimination.
See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).
Upon review, we agree with the Agency that the discriminatory conduct at issue (the non-selection of Complainant in January 2010) did not directly or proximately cause the emotional harm or uses of leave as described by Complainant. Rather, Complainant's statement indicated that a separate source of potential discriminatory conduct (possible coworker retaliatory harassment), was the direct or proximate cause of emotional harm and his use of sick and annual leave. Therefore, we find that the Agency did not err when it awarded Complainant $5,000 in non-pecuniary compensatory damages, and declined to restore Complainant's 160 hours of sick leave and 19 hours of annual leave used between July 2010 and August 2011.
But we will modify the Agency's final decision to include orders for the Agency to consider disciplining the responsible management officials and to train them in their EEO responsibilities.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission MODIFIES the Agency's decision on compensatory damages. The Agency must take corrective action, in accordance with this decision and the Order below.
ORDER
1. If it has not already done so, within one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency must pay Complainant $5,000.00 in non-pecuniary compensatory damages and $16,860 in attorney's fees and costs.
2. Within one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall provide training to the responsible management officials concerning their responsibilities under Title VII of the Civil Rights Act prohibiting unlawful race discrimination. Within thirty (30) calendar days of the date the training is completed, the Agency shall submit to the Compliance Officer appropriate documentation evidencing completion of such training.
3. Within one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible Agency officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason for its decision not to impose discipline. If the Agency officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates.
The Agency shall provide a report of its compliance with paragraphs 1 to 3 of this Order to the Compliance Officer, as provided in the statement titled "Implementation of the Commission's Decision." The report shall include supporting documentation, verifying that the Agency has implemented the above corrective actions. Copies must be sent to Complainant.
POSTING ORDER (G0610)
The Agency is ordered to post at the Federal Correctional Institution in Talladega, Alabama 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
___9/5/14_______________
Date
1 The reduction in force was litigated in Complainant v. Dep't of Justice, EEOC Appeal No. 0120121139 (Jan. 11, 2013) (affirming the EEOC AJ's summary judgment decision in favor of the Agency, finding that Complainant failed to show that the reduction-in-force notice and change to a lower grade was discriminatory).
2 The Commission applies the principle that "a tortfeasor takes its victims as it finds them." See Wallis v. U.S. Postal Serv., EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Mach, Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). But there are two exceptions. First, when a complainant has a preexisting condition, the Agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if the complainant's preexisting condition inevitably would have worsened, the Agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof is on the Agency to establish the extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay v. U.S. Postal Serv., EEOC Appeal No. 01942985 (Apr. 29, 1997). Therefore, a complainant is entitled to recover damages only for injury, or additional injury, caused by the discrimination. See Terrell v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 01961030 (Oct. 25, 1996); EEOC Notice No. N 915.002 at 12.
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0120130174
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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