0120151401docx
12-27-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Preston B.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120151401
Hearing No. 541-2013-00024X
Agency No. ARCARSON12FEB00410
DECISION
On March 6, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 5, 2015, final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision with regard to the amount of compensatory damages awarded to Complainant.
ISSUE PRESENTED
The issue presented is whether the Agency awarded Complainant the appropriate amount of compensatory damages.
BACKGROUND
Complainant worked as the Lead Security Guard, GS-05, at the Agency's Directorate of Emergency Services (DES) in Fort Carson, Colorado. On January 26, 2012, the DES Chief (Chief) was informed that the Veterans Administration had increased Complainant's total disability rating to 90%. This included his Post Traumatic Stress Disorder (PTSD) rating which was increased to 50%. Complainant demonstrated difficulty understanding complex commands, was impaired with respect to his short and long term memory, judgment, and motivation and mood. Because of these issues, Complainant was placed on a new narcotic medication. It was noted that this medication could cause his judgment to be impaired and/or cause drowsiness or dizziness. The Chief informed Complainant that he was therefore disqualified from the Individual Reliability Program (IRP) due to his failure to maintain a condition of his employment. Complainant was offered, and accepted, a position as a File Clerk/Assistant Administrator in the Fort Carson Police Records Department which was at the same grade as his previous Security Guard position.
On February 22, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of mental disability (Post Traumatic Stress Disorder), physical disability (hearing loss and mobility issues) and reprisal for prior protected EEO activity when, on January 31, 2012, he was disqualified under the Individual Reliability Program from working in his position as a GS-0085-05, Lead Security Guard.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. The Agency issued a final decision (FAD1) on October 15, 2014. The decision concluded that Complainant was subjected to discrimination. Specifically, the Agency found that Complainant was discriminated against on the basis of mental disability (PTSD), but not on the basis of his physical disabilities. FAD1 found that the Agency did not demonstrate that Complainant posed a "direct threat" if he were allowed to continue working as a Lead Security Guard. Consequently, the Agency found that the disqualification of Complainant's employment constituted discrimination on the basis of mental disability. Among other remedies, the decision concluded that Complainant might be entitled to an award of compensatory damages if he was able to establish a causal relationship between the prohibited discrimination and any pecuniary or non-pecuniary losses.
Based on the complaint record, and the parties' submissions, the Agency issued FAD2 on February 5, 2015, which awarded Complainant 98 hours of restored annual leave, 100 hours of restored sick leave, 59 hours of Leave With Out Pay (LWOP) converted to sick leave, and $26,601.77 in back pay with interest, $642.49 in pecuniary damages, and $7,500.00 in non-pecuniary damages, for a total monetary award of $34,744.26.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the amount of nonpecuniary damages remains in dispute. He asserts that as a result of the Agency's discrimination, the nonpecuniary award should have been $300,000.00. Complainant also maintains that the Agency defaulted on items that both parties agreed to during a discussion of the award. For example, he contends that as part of settlement discussions he was offered a GS-07 position, yet in the final decision, the Agency defaulted on that offer, and he was not offered a permanent position. Additionally, he maintains that the Agency agreed that he would receive $5,247.46 as compensatory for lost promotion potential but the Agency defaulted on that as well. Complainant maintains that he should be compensated for loss of promotion potential and loss of promotion opportunities.
Further, Complainant asserts that the Agency's response to his request for damages included information that was false and beyond the facts in this case. For example, the Agency indicated that Complainant was a person of interest at the time of the decision to remove his database access. Complainant explains that this was not true, as he was not a person of interest at that time but had been in 2007. Further, the Agency stated, "Complainant did not have law enforcement credentials as a security guard." Complainant maintains that this statement is false. As a security guard, he had a badge and an authorization to carry a side arm and appropriate police items.
Additionally, Complainant maintains that he was not promoted to a lead position in his current place of employment even after successfully performing the duties for over a year. Instead, he argues that the Agency brought in a lesser experienced person in to fill the job. Complainant believes that he was not given the job because of the stigma of having been moved a result of the discrimination.
Complainant contends that given the facts of this case an offer of $7,500 dollars for nonpecuniary damages is too low. According to Complainant, the stress caused him to seek psychiatric counseling, and he nearly lost his home, which added to the stress on him and his family. Additionally, Complainant maintains that the fact that he was told that disabled people should use the back door was not fully addressed. Other than the Agency's response, that "If the Complainant believed he was being discriminated against or subjected to reprisal with respect to these allegations, he should have contacted the servicing EEO office to initiate a complaint."
In response, the Agency contends that Complainant's appeal should not be considered because he did not introduce any new evidence or argument. The Agency asserts that Complainant's request for loss of promotion potential and loss of promotion opportunities were denied because Complainant failed to allege these claims in the accepted EEO complaint. Moreover, Complainant has not provided any evidence to support a finding that he should be compensated for the removal of his law enforcement credentials.
Finally, the Agency maintained that the issue of non-pecuniary damages was also properly decided by the Agency. The medical records provided by Complainant do not show the emotional distress Complainant was experiencing was caused by the discrimination. As stated in the FAD2, Complainant's physician documented that his financial hardship was due to his daughter's medical expenses. The Agency argues that Complainant has not presented any evidence to show that the discrimination he was subjected to caused these losses. Therefore, the Agency maintains that non-pecuniary damages in the amount of $7,500.00 is appropriate.
ANALYSIS AND FINDINGS
Standard of Review
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").
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not demonstrated that the amount offered by the Agency is incorrect or is not similar to that provided in other similar cases. With respect to Complainant's contentions that he should have been awarded a higher nonpecuniary award because the Agency's discrimination caused great distress to both him and his family, we note that the medical documentation provided by Complainant shows that he acknowledged that a great deal of his stress was caused by circumstances not related to the Agency's discrimination, i.e., his daughter's health and medical expenses.
Furthermore, we do not find it relevant that the Agency was willing to offer certain things during settlement discussions seeking to resolve this matter. With regard to the matters at issue here, the evidence does not show that Complainant applied for any positions during the time period at issue and therefore presented no persuasive evidence of missed promotion opportunities. Although Complainant asserts that someone not as qualified was selected for the lead position but he did not show that he applied for the position.
With respect to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements he has not provided evidence which shows that the Agency's decision was incorrect or the amount awarded was in error.
Based on the evidence of record we find that Complainant has not demonstrated that his request for $300,000 is supported by the record or that the Agency erred in awarded him $7,500.00 in non-pecuniary damages. We find that the Agency's award is supported by the record and is consistent to amounts awarded in similar cases.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD.
ORDER
To the extent that it has not already done so, The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued:
the Agency shall award 98 hours of restored annual leave, 100 hours of restored sick leave, 59 hours of Leave With Out Pay (LWOP) converted to sick leave, and the sums of $26,601.77 in back pay with interest, $642.49 in pecuniary damages, and $7,500.00 in non-pecuniary damages, for a total award of $34,744.26.
The Agency us further direct to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action listed in this order 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. 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. 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
_12/27/17_________________
Date
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120151401
7
0120151401
8
0120151401