Drew N.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Jan 11, 2018

0120160208 (E.E.O.C. Jan. 11, 2018)

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

Drew N.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120160208

Agency No. HS-07-FEMA-00079

DECISION

On October 13, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency’s September 21, 2015 final decision
awarding him non-pecuniary compensatory damages concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mobile Homes
Operations Group Supervisor at the Agency’s Baton Rouge Field Office in Baton Rouge,
Louisiana. In January 2007, Complainant’s supervisor (S1) removed Complainant from his
duties and changed Complainant’s title to Acting Deputy Lead of Group Site Development Task
Force. Additionally, S1 advertised and hired a Caucasian female employee with the exact same
title and grade as Complainant and directed Complainant to report to New Orleans where he
would be assigned for three months to train the new employee as his assistant. The record
indicates that S1 subsequently resigned from the Agency. Additionally, Complainant was
returned to his position in or around March 2007.

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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On April 23, 2007, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of race (African-American) and sex (male) when:

1. On January 8, 2007, management changed Complainant’s duties and job title;

2. On January 8, 2007, management moved Complainant to another work site; and

3. On January 8, 2007, management assigned Complainant’s former duties to a
Caucasian female employee.

Following an investigation, the Agency issued a final Agency decision after Complainant failed
to timely request a hearing. Therein, the Agency determined that Complainant failed to show
that he was subjected to discrimination as alleged. Complainant appealed and, in Complainant v.
Dep’t of Homeland Sec., EEOC Appeal No. 0120140085 (Jan. 15, 2015), the Commission
reversed the Agency’s decision and found that the Agency had discriminated against
Complainant on the bases of race and sex as alleged. In so finding, the Commission determined
that the Agency failed to articulate legitimate, nondiscriminatory reasons for its actions. More
specifically, the record contained no evidence from any appropriate Agency official explaining
the Agency’s reason for the reassignments. Additionally, the Commission found that there was
evidence that the reassignment was made for unlawful discriminatory motives. Therefore, in
light of the Agency’s failure to provide a sufficient articulation of the reasons for the actions at
issue, the Commission found that the Agency discriminated against Complainant.

To remedy the discrimination, the Commission remanded the matter to the Agency with orders
to conduct a supplemental investigation to determine Complainant’s entitlement to compensatory
damages and issue a new final decision addressing compensatory damages; tender an
unconditional offer to Complainant to restore him to the position, title, and duties to which he
was previously assigned; to provide training to and consider discipline for the responsible
management officials; and to post a notice. The Commission noted, however, that Complainant
was subsequently removed from federal service during the pendency of Complainant’s appeal
and had challenged that removal. Accordingly, the Commission excused the Agency’s
obligation to restore Complainant to his prior title, position, and duties if his removal was
upheld.2

On September 21, 2015, the Agency issued a FAD addressing compensatory damages.
Complainant requested $779,138.40 in pecuniary damages. Complainant’s claim included, inter
alia, lost wages from May 2009 to May 2015, losses from his Thrift Savings Plan (TSP),
penalties for early withdrawals from his TSP and retirement accounts, and losses from his house
due to foreclosure. The Agency determined that Complainant failed to submit any objective
evidence to support his claim for pecuniary damages and denied his request. Next, Complainant
requested $1,538,409.60 for non-pecuniary damages. In support, Complainant stated that he
suffered stress, humiliation, heavy drinking, anxiety, depression, sleeplessness, marital strain,

2 The record indicates that Complainant’s removal was upheld.
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mental distress, injury to his character, and damaged credit standing. In addition, Complainant
provided statements from family, friends, and co-workers who described Complainant’s decline
following his May 2009 termination. The Agency determined that the statements submitted by
Complainant in support of his request for damages focused primarily on issues that were not
related to the three-month duration of the Agency’s January 8, 2007 act of discrimination. Based
on the evidence submitted related to the incident at issue, the Agency found that Complainant
was entitled to $10,000.00 in non-pecuniary damages. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the compensatory damages awarded by the Agency failed
to reflect the true harm caused by the Agency’s discriminatory actions. Complainant argues that
he suffered irreparable harm to his professional representation, his relationship with his former
co-workers, and extreme mental anguish. Complainant states that he is entitled to
reimbursement for his out-of-pocket costs of lodging and commuting mileage he incurred as a
result of the change in his duty station. Complainant claims, however, that the timeframe for
these costs was from November 2008 to May 2009. Complainant contends that the Agency
failed to address how the stripping of his duties and responsibilities made it impossible for him to
obtain employment from any Agency contractor. Finally, Complainant argues that the Agency
failed to address his request for reinstatement and that the required posting of the finding of
discrimination did not specifically reference his name. Accordingly, Complainant requests that
the Commission modify the Agency’s compensatory damages award.

In response, the Agency argues that Complainant has grossly overstated his entitlement to
damages, based on the fact that he failed to distinguish between the alleged harm that can be
attributed to his 2007 complaint and the alleged harm that can be attributed to his later and
unrelated termination from the Agency. The Agency asserts that the record shows that the
January 2007 discriminatory transfer at issue was of a limited duration (approximately 3 months)
and that Complainant’s duties were eventually restored to him. Additionally, Complainant was
transferred again to New Orleans in 2008; however, that transfer was not at issue in this matter.
Further, Complainant’s termination in June 2009 was unrelated to the issues in the 2007
complaint, and therefore, the allegations of harm arising from the second transfer and
termination should not be considered in his claim for damages. The Agency contends that
Complainant is not entitled to any of the claimed out-of-pocket expenses because he failed to
submit any documentation showing that these expenses were a direct result of the discrimination
that occurred in 2007. Finally, the Agency argues that Complainant’s description of his
emotional damages did little to separate the harm that could be attributed to his 2007 transfer to
the harm that he associates with his second transfer to New Orleans and subsequent termination.
Given Complainant’s assertions of embarrassment and anxiety and the limited duration of the
transfer that caused the harm, the Agency submits that Complainant is entitled to non-pecuniary
damages of no more than $5,000 and as low as $500.
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ANALYSIS AND FINDINGS

When discrimination is found, the Agency must provide the 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, 119 S.Ct. 1906
(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).

Pecuniary Compensatory Damages

Pecuniary damages are quantifiable out-of-pocket expenses incurred as a result of the Agency's
discriminatory actions. Damages for past pecuniary losses will not normally be granted without
documentation such as receipts, records, bills, cancelled checks, or confirmation by other
individuals of actual loss and expenses. Complainant’s request included reimbursement for
expenses such as lost income from his retirement and TSP accounts, costs related to a
foreclosure, and costs associated with a filing for bankruptcy. Complainant acknowledged that
these costs were the result of his termination from the Agency and not the discriminatory
incidents that occurred in January 2007. Complainant further claimed that he incurred expenses
for lodging, food, and commuting for seven months after his duty station was changed from
November 2008 to May 2009. These expenses occurred much later than the January 2007 to
March 2007 period at issue, and appear to be related to the second transfer which is not before
the Commission. Thus, Complainant has failed to show that the claimed costs were the direct
result of the discriminatory conduct under consideration. The Commission concludes that
Complainant failed to provide evidence in support of his claimed out-of-pocket expenses
incurred as a result of the discriminatory conduct at issue. Therefore, the Commission finds that
the Agency’s denial of pecuniary damages was appropriate.

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 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
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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 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, and 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.

Here, Complainant stated that as a result of the discriminatory transfer, he experienced stress,
humiliation, anxiety, sleeplessness, and relationship stress. Complainant further claimed that he
withdrew from social interactions and became morose and quiet. Additionally, Complainant
stated that his professional reputation and standing were harmed. Family and friends submitted
statements describing the changes in Complainant’s demeanor and attitude.

Based on the review of the evidence in light of Commission cases regarding non-pecuniary
compensatory damages awarded for emotional harm, the Commission finds that the Agency’s
award of $10,000.00 in non-pecuniary compensatory damages is consistent with what the
Commission has awarded in cases where complainants have suffered emotional harm similar in
severity and duration to the emotional harm Complainant suffered in the instant case. See e.g.,
Lois G. v. U.S. Postal Serv., EEOC Appeal No. 0120150672 (Feb. 28, 2017) ($10,000.00
awarded where Complainant experienced stress, anxiety, sleeplessness and depression); Mike G.
v. Dep't of Agric., EEOC Appeal No. 0120152027 (Sep. 8, 2016) (awarding $10,000.00 in non-
pecuniary damages based on exacerbation of depression, anxiety, and post-traumatic stress
disorder, weight gain, and sleeplessness); Fidelia F. v. Dept. of Agric., EEOC Appeal No.
0120150584 (Apr. 11, 2017) ($7,500.00 in non-pecuniary compensatory damages award based
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on mental anguish and humiliation, diminished self-esteem and self-worth, and health issues);
and Robinson v. Dept. of the Army, EEOC Appeal No. 01A31123 (May 26, 2004) ($7,500.00 in
non-pecuniary compensatory damages based on complainant's testimony about mental anguish,
emotional stress, lowered professional status, a reduction in his ability to advance his career,
humiliation, embarrassment, and intimidation). The Commission notes that this sum is meant to
compensate Complainant for the emotional distress he suffered, which was caused by the
Agency’s discriminatory actions.

The Commission finds that this amount takes into account the severity of the harm suffered, and
is consistent with prior Commission precedent. Finally, the Commission finds this award is not
“monstrously excessive” standing alone, is not the product of passion or prejudice, and is
consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC
Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th
Cir. 1989)).

Remaining Remedial Actions

Finally, the Commission notes that Complainant claimed on appeal that the Agency failed to
address his request to be reinstated. As mentioned above, the Commission ordered the Agency
to restore Complainant to the previous position, title, and duties he had been assigned in January
2007. The Commission conditioned this order upon Complainant’s successful challenge of his
termination. Complainant’s termination was not at issue in the previous appeal nor in this
matter. The record reveals that Complainant’s termination was upheld; therefore, the
Commission finds that the Agency is excused from reinstating Complainant. Finally,
Complainant requested that his name be included on the ordered notice to be posted at the
Agency’s facility regarding the finding of discrimination. The Commission finds that the
Agency was only required to post the notice attached to the previous decision as neither
complainant nor any Agency official is identified in the Commission’s posting orders.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, the Commission
AFFIRMS the Agency’s final decision finding Complainant is entitled to an award of non-
pecuniary compensatory damages in the amount of $10,000.00.

ORDER (C0610)

Within sixty (60) days of the date this decision is issued, to the extent that it has not already done
so, the Agency is ordered to pay Complainant $10,000.00 in non-pecuniary compensatory
damages.

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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 evidence that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)

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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (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.
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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

January 11, 2018
Date