07A30092_
10-30-2003
Emmanuel Nnaji, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Emmanuel Nnaji v. Department of the Treasury
07A30092
October 30, 2003
.
Emmanuel Nnaji,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 07A30092
Agency No. 02-1040
Hearing No. 110-A2-8417X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the agency's
appeal in the above-entitled matter.
Complainant filed an EEO complaint alleging that the agency discriminated
against him based on race (African), national origin (Nigeria) and
disability (severe hearing impairment) when it terminated his employment
after he worked ten months of a one year probationary period.<1> The
complaint was investigated and complainant was informed of his right to
elect a hearing before an EEOC administrative judge (AJ) or an immediate
final agency decision (FAD). Complainant chose the former. After a
hearing, the AJ issued a decision finding no discrimination based on
race or national origin and finding discrimination based on disability.
Specifically, the AJ concluded that complainant is a qualified individual
with a disability and that the agency failed to reasonably accommodate
complainant's disability and failed to show that it would cause an undue
hardship to do so. The AJ awarded complainant $22,800.00 in back-pay
after appropriate offsets and $72,840.00 in non-pecuniary, compensatory
damages.<2> The agency issued a FAD stating that it would not implement
the AJ's decision and appealing the decision. The agency stated that the
AJ erred when she found it liable for failure to provide a reasonable
accommodation to complainant, and that, assuming it is liable, the AJ
erred when she awarded complainant an excessive amount of compensatory
damages.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, we find that the agency failed to
establish by substantial evidence that the AJ erred as to her findings
that the agency failed to provide complainant a reasonable accommodation.
The findings of fact are supported by substantial evidence, and the AJ
correctly applied the appropriate regulations, policies, and laws in
determining that the agency discriminated against complainant based on
disability and did not discriminate against complainant based on race
or national origin.
When discrimination is found, the agency must provide the complainant
with a remedy that constitutes full, make-whole relief to restore the
complainant as nearly as possible to the position he would have occupied
absent the discrimination. See, e.g., Franks v. Bowman Transportation
Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975). Section 102(a) of the Civil Rights Act of 1991 (the CRA
1991), Stat. 1071, Pub. L. No. 102-166, codified as 42 U.S.C. � 1981a,
authorizes an award of compensatory damages as part of the "make whole"
relief for intentional discrimination. Section 1981a(b)(2) indicates
that compensatory damages do not include back pay, interest on back
pay, or any other type of equitable relief. Section 1981a(b)(3) limits
the total amount of compensatory damages that may be awarded to each
complaining party for future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other
non-pecuniary losses, according to the number of persons employed by
the respondent employer. The limit for an employer with more than 500
employees, such as the agency, is $300,000. 42 U.S.C. � 1981a(b)(3)(D).
Compensatory damages are further limited to the amount necessary to
compensate an injured party for actual harm caused by the agency's
discriminatory action, even if the harm is intangible. Damiano
v. U.S. Postal Service, EEOC Request No. 05980311 (February 26, 1999).
Compensatory damages should consider the extent, nature, and severity
of the harm and the length of time the injured party endured the harm.
Id.; 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. The Commission notes that for a proper award of
non-pecuniary compensatory damages, 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 Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F. 2d 827, 848 (7th Cir. 1989)).
Complainant submitted evidence, through his own testimony, of the
pain and suffering caused by his termination. Complainant testified
that the agency's action caused him stress, depression, sleeplessness,
hopelessness, lack of concentration, loss of enjoyment of life, memory
loss, suicidal ideation, hypertension, and an exacerbated diabetic
condition. Further, complainant stated that his spouse abandoned
their family when he was terminated so he had to return his children
to Africa. Complainant added that, as a result of his termination,
he suffered severe financial strain. Complainant testified that he
was unable to purchase a home that he was in the process of buying, he
was unable to cover the costs of medications he needed, his vehicle was
repossessed, and his credit standing was severely injured. In addition,
complainant testified that he was compelled to use his life savings to
cover daily living expenses and that, once his savings were exhausted,
he had to accrue a substantial amount of debt. Complainant added that he
loss his second job, which was part-time, due to his depression and that
he has not had consistent, full-time employment since his termination
in September 2001.
The Commission finds that the substantial evidence of record supports
the AJ's award of $72,840.00. We note that although the record does
not contain medical documentation, the AJ found complainant's testimony
credible. After considering complainant's aforementioned testimony, we
find the AJ's award appropriate. See, e.g., Viers v. U.S. Postal Service,
EEOC Appeal No. 01A14246 (June 20, 2002)($65,000.00 in non-pecuniary
damages where the complainant stated that she suffered fatigue, insomnia,
marital strain, anxiety, loss of self esteem, depression, and withdrawal
due to harassment and medical documentation indicated that the harassment
awakened a preexisting mental condition); Quick v. Dep't of Veterans
Affairs, EEOC Appeal No. 01A13884 (September 4, 2003)($75,000.00 in
non-pecuniary damages where the complainant and friends stated that
complainant lost child custody and all of his possessions and experienced
mental illness, depression, and withdrawal as a result of his termination
when the agency failed to provide him with a reasonable accommodation);
Bernard v. Dep't of Veterans Affairs, EEOC Appeal No. 01966861 (July
17, 1998)($80,000.00 in non-pecuniary damages where the complainant
and friends stated that complainant suffered depression, withdrawal,
hopelessness, distrust, humiliation, anxiety, headaches, hypertension,
nausea and insomnia due to a nonselection and the agency's failure to
provide complainant with a reasonable accommodation.)
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination or her award of compensatory damages.
The Commission reverses the agency's final order and remands the matter
to the agency to take corrective action in accordance with this decision
and the Order below.
ORDER
The agency is ordered to take the following remedial action within sixty
(60) calendar days after the date this decision becomes final, unless
otherwise noted below:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall offer to place complainant in a GS-5 Customer
Service Representative position with a reasonable accommodation or a
substantially equivalent position at its Chamblee, Georgia facility.
Complainant shall return to the point in the one year probationary
period where the probationary period ceased. Complainant shall be given
a minimum of fifteen days from receipt of the offer of placement within
which to accept or decline the offer. Failure to accept the offer within
the time period set by the agency will be considered a rejection of the
offer, unless complainant can show that circumstances beyond his control
prevented a response within the time limit.
The agency shall determine the appropriate amount of back pay, if any,
with interest; overtime pay, if any, with interest; and other benefits
due complainant, pursuant to 29 C.F.R. � 1614.501, less any appropriate
offsets.<3> The time period for purposes of back pay shall be from the
effective date of complainant's termination until the date complainant
accepts or declines the non-conditional offer of placement provided for
in paragraph (1) above. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay, overtime pay and benefits
due, and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay, overtime
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for enforcement or clarification must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision.�
The agency shall pay complainant $72,840.00 in non-pecuniary, compensatory
damages.
The agency shall pay complainant reasonable attorney's fees and costs
in accordance with the �Attorney's Fees� paragraph below.
The agency is directed to provide EEO training for the responsible
management officials addressing their responsibilities with respect to
eliminating discrimination in the workplace with an emphasis on disability
and the current state of law on employment discrimination.
The agency shall consider taking disciplinary action against
the management officials identified as being responsible for the
discrimination perpetrated against complainant. The agency shall report
its decision. 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(s) for its decision
not to impose discipline.
The agency shall post copies of the attached notice in accordance with
the statement entitled "Posting Order."
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's actions in accordance with this order.
POSTING ORDER (G0900)
The agency is ordered to post at its Chamblee, Georgia facility 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 30, 2003
__________________
Date
1The agency terminated complainant effective
September 27, 2001.
2The Commission notes that the AJ did not award pecuniary damages as
she stated that the information complainant provided regarding past and
future medical expenses was speculative.
3We note that the AJ awarded $22,800.00 in back-pay after appropriate
offsets, however, additional time has lapsed since the AJ's award and
it is unclear exactly what time period the AJ's award addressed.