Emmanuel Nnaji, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionOct 30, 2003
07A30092_ (E.E.O.C. Oct. 30, 2003)

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.