[Redacted], Annabelle Z., 1 Complainant,v.Kiran Ahuja, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity Commission

Aug 4, 2022

Appeal No. 2021001282 (E.E.O.C. Aug. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Annabelle Z.,1 Complainant, v. Kiran Ahuja, Director, Office of Personnel Management, Agency. Appeal No. 2021001282 Hearing No. 430-2017-00298X Agency No. 2017008 DECISION On December 14, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 18, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Special Agent, Grade GS-7, at the Agency’s National Background Investigations Bureau field office in Virginia Beach, Virginia. Following prior military and other federal experience, Complainant began employment with the Agency on July 10, 2016. From July 10, 2016 to August 11, 2016, Complainant attended and completed the Agency’s federal investigator training program. Complainant and her entire class had failed some of the examinations. 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 2021001282 Complainant had complained to the course instructors that the examinations that her entire class had failed had questions on material that they had not been assigned for them to study. Complainant was permitted to retake and passed those examinations that she had failed. After completing the formal training course, Complainant reported to her supervisor on August 15, 2016, and began to receive on-the-job training. On November 14, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on her race (African-American) and in reprisal for prior protected EEO activity when: 1. On August 11, 2016, Complainant's first-line supervisor (S1) openly discussed Complainant's performance feedback from the Agent school, labelling Complainant as “an angry Black woman, confrontational, combative, unapproachable, problem who does not take criticism well.” 2. On August 31, 2016, Complainant was issued a written warning for failing to return a signature page and not being on-time for a phone conference. 3. On October 13, 2016, Complainant was issued a written warning for failing to follow time and attendance policy and procedure. 4. On October 24, 2016, Complainant was issued a “Minimally Successful” Annual Performance Appraisal. 5. On October 25, 2016, Complainant's third line supervisor (S3) assured her that there would be no retaliatory actions against Complainant for relaying her job concerns to her second-line supervisor (S2). On January 6, 2017, the Agency accepted the following amended claims: 6. On December 7, 2016, Complainant received a memorandum stating that her performance rating cycle would be extended from August 25, 2016 until November 2016. 7. On December 9, 2016, S1 sent an email stating Complainant was Absent Without Leave (AWOL). 8. On December 15, 2016, S1 had someone prepare a biography of a Caucasian-American Special Agent but did not have one prepared for Complainant and the minority Special Agents. 3 2021001282 On April 5, 2017, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The matter was initially assigned to the Supervisory AJ (SAJ) for the Commission’s Charlotte District Office. On September 7, 2017, the Agency failed to appear at an initial conference. On October 19, 2017, the SAJ sanctioned the Agency for its failure to appear by denying the Agency discovery and restricting the Agency to using only its report of investigation at the hearing stage. On May 21, 2018, Complainant submitted requests for discovery to the Agency. On July 15, 2018 the Agency moved to enlarge the period to respond to Complainant’s discovery request. Complainant opposed the Agency’s motion to enlarge and filed a motion to compel. On August 15, 2018, the SAJ issued an order that denied the Agency’s motion to enlarge and granted in part, Complainant’s motion to compel. The SAJ’s discovery order directed the Agency to answer Complainant’s interrogatories no later than August 29, 2018. On August 30, 2018, the Agency’s attorney emailed the SAJ that the Agency’s responses to Complainant’s interrogatories had been sent to Complainant. Counsel for Complainant denied receiving the Agency’s responses. On September 13, 2018, Complainant moved for sanctions against the Agency for failure to meet the deadlines from the SAJ’s August 15, 2018 discovery order. On September 17, 2018, the Agency attorney claimed that the discovery responses had been stuck in her outbox because the email messages had exceeded the Agency’s maximum size for transmission. On June 26, 2019, the SAJ granted Complainant’s motion for sanctions and entered a default judgment against the Agency. On July 29, 2019, Complainant filed a brief in support of damages. The Agency responded to Complainant’s damages brief on September 3, 2019. On May 12, 2020, the matter was reassigned from the SAJ to another AJ in the Commission’s Charlotte District Office. The new AJ ordered both parties to present their oral arguments on damages on July 24, 2020. The Agency failed to appear on that date. On August 31, 2020, a new Agency attorney informed the AJ that its original attorney had left the Agency. On September 17, 2020, the AJ issued a Make Whole Relief Decision that clarified that the SAJ’s default judgment had rejected Complainant’s harassment claims. The AJ’s Make Whole Relief Decision indicated that the SAJ’s default judgment had determined that Complainant had established a prima facie case of race and reprisal disparate treatment discrimination regarding the two written warnings, the Fiscal Year 2016 performance review, and the biography incident. The AJ awarded $5,000 in non-pecuniary compensatory damages. The AJ ordered the Agency to pay $29,381.52 in attorneys’ fees and costs. The AJ also ordered removal of the written warnings as well as S1’s comments in the Fiscal Year 2016 performance review. On November 19, 2020, the Agency issued a final order accepting the findings and relief ordered in the AJ’s Make Whole Relief Decision. The instant appeal followed. On appeal, through Counsel, Complainant argues that the AJ’s relief decision failed to make Complainant whole by denying pecuniary damages. 4 2021001282 Second, Complainant’s Counsel argued that $5,000 was inadequate for non-pecuniary compensatory damages. Counsel maintained that EEOC had awarded non-pecuniary compensatory damages between $100,000 and $200,000 in similar cases. Next, Counsel challenged the AJ decision to reduce Complainant’s attorney’s fees and maintained that documentary evidence proffered supported $58,763.05 as a reasonable amount. Finally, Counsel sought an additional $8,353 for additional legal fees and expenses incurred between filing the fee petition and the present appeal. ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency's final action shall be based on a de novo review . . .”); EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.B. (Aug. 5, 2015) (providing that an AJ's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. We are free to accept (if accurate) or reject (if erroneous) the AJ's, and the Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. EEO MD- 110 at Ch. 9, § VI.A. (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”). Here, the AJ appropriately issued a default judgment as a sanction for the Agency’s multiple failure adhere to the AJ’s discovery orders during the hearing phase. The Agency has not contested the AJ’s findings and its final order fully adopted the AJ’s decisions regarding relief. Denial of Pecuniary Damages Pecuniary losses include for example, moving expenses, job search expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses that are incurred as a result of the discriminatory conduct. To recover damages, Complainant had to prove that the discrimination by the Agency caused her losses. The critical question is whether Complainant incurred the pecuniary losses as a result of the Agency’s discriminatory conduct. Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991 (EEOC Damages Guidance), EEOC Notice No. 915.002 (July 14, 1992). For past pecuniary damages, Complainant sought re-payment for 320 hours of leave that she had used around the time the discrimination occurred. 5 2021001282 This includes six weeks when Complainant took leave to undergo surgery and then to recover. Complainant had additionally used another two weeks of leave to recooperate from stress and high blood pressure. Because she no longer works for the Agency, Counsel for Complainant has argued the Agency should have been required to pay Complainant $6,886.40 to compensate for the equivalent to eight weeks of leave. Here, we are not convinced that the Agency bore responsibility for Complainant’s taking leave. The record revealed that Complainant took sick leave for a hysterectomy. Complainant also alleges she took two more weeks of leave because she found working for S1 unpleasant and stressful. However, we are not persuaded there was a direct causal nexus between discrimination from the performance rating, warnings or lack of introduction and her need to take leave. Evans v. Dep’t of Justice, EEOC Appeal No. 0120080335 (June 22, 2012) request for recons. den. EEOC Request No. 0520120522 (Dec. 11, 2012). Therefore, we find no error in the AJ’s decision to deny Complainant’s request for pecuniary damages in the form of compensation for sick leave used. Non-Pecuniary Compensatory Damages Non-pecuniary compensatory damages are equitable losses that are not subject to precise quantification, including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, harm to reputation, diminished credit, or impaired health. See EEOC Damages Guidance. Objective evidence in support of a claim for non-pecuniary compensatory damages claims includes statements from Complainant and others including co-workers, and medical professionals. Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Non-pecuniary compensatory damages must be limited to compensation for the actual harm that a complainant has suffered as a result of the Agency’s discriminatory actions. See Carter v. Duncan-Higgans. Ltd., 727 F.2d 1225 (D.C. Cir. 1994); EEOC Damages Guidance at 13. Additionally, the amount awarded should not be “monstrously excessive,” should not be the product of passion or prejudice. Non-pecuniary compensatory damages should be consistent with amounts awarded in similar cases. 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)). When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she 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 Title VII may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and nonpecuniary losses (e.g., pain and suffering, mental anguish) as part of this ““make whole” relief. 42 U.S.C. § 1981(b)(3). 6 2021001282 In this present matter, Complainant bore the burden of proving the existence, nature and severity of her emotional harm. Additionally, Complainant must establish a causal relationship between the alleged harm and the discrimination. Man H. v. Dep’t. of Homeland Sec., EEOC Appeal No. 0120161218 (May 2, 2017). Absent proof of harm and causation, Complainant is not entitled to non-pecuniary compensatory damages, even if unlawful discrimination has been found. Wilda M. v. U.S. Postal Serv., EEOC Appeal No. 0120141087 (Jan. 12, 2017). As did the AJ, we find unclear the nexus between Complainant’s reproductive system conditions and the racial and retaliatory discrimination that she had suffered at work. We further concur with the AJ that, although Complainant presented evidence of mental health treatment, those medical documents had addressed many other stressors that appeared unrelated to her employment. On appeal, Complainant has argued that non-pecuniary compensatory damages should be increased to no less than $100,000. We find that amount monstrously excessive for the manner of introduction during a staff meeting, two written warnings and one “minimally successful” performance rating. We determine, however, that the available evidence supports the AJ’s award of $5,000. In Maria D. v. Dep’t of Justice, EEOC Appeal No. 2021001182 (Dec. 2, 2021), this Commission affirmed the AJ’s non-pecuniary compensatory damages award of $7,000 to a complainant who had suffered anxiety, frustration, insomnia and marital problems after her supervisor had rated her satisfactory while rating her male comparators excellent. In Tyrone D. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019002906 (Aug. 18, 2020), we upheld the AJ’s award of $5,000 in non-pecuniary compensatory damages for a complainant who had suffered insomnia, headaches and stomach aches, as well as harm to his professional reputation, because a third-level supervisor had shown anti-Asian animus in downgrading an annual performance evaluation from “Achieves Excellence” to a lesser rating. In Eve E. v. Dep’t of Homeland Sec., EEOC Appeal Nos. 0120141606 and 0120161392 (May 24, 2016), EEOC found adequate the final agency decision that awarded $5,000 in non-pecuniary compensatory damages where the complainant evidenced her change from a happy-go-lucky person to someone who was always irritable, depressed and withdrawn from friends and family, once she had been subjected to a retaliatory reduction in her performance appraisal. Taking into consideration these awards from prior cases where similarly-situated complainants have evidenced similar harm, we determine that this AJ’s award of $5,000 in non-pecuniary compensatory damages was adequate and consistent with our prior decisions involving similar circumstances. Attorney Fees The Commission’s regulations authorize the AJ to award of reasonable attorney’s fees and costs to this prevailing Complainant. 29 C.F.R. § 1614.501(e). EEO-MD-110 at 11-9. Attorney's fees and costs are awarded in accordance with 29 C.F.R. § 1614.501(e). In federal EEO law, there is a strong presumption that a complainant who prevails in whole or in part on a claim of discrimination is entitled to an award of attorney's fees and costs. Complainants who prevail on Title VII claims are presumptively entitled to an award of attorney's fees and costs, unless special circumstances render such an award unjust. 29 C.F.R. § 1614.501(e)(1). 7 2021001282 Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a “lodestar.” 29 C.F.R. § 1614.501(e)(ii)(B); EEO-MD-110 at 11-13; see also Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Bernard v. Dep’t. of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). In requesting an award of attorney’s fees and costs Complainant’s Counsel has the burden of proving entitlement, by specific evidence, to the requested. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003). An application for attorney's fees must include a verified petition accompanied by an affidavit executed by the attorney of record itemizing each expense comprising the attorney’s charges for legal services, together with bills, receipts, or other appropriate documentation. 29 C.F.R. § 1614.501(e)(2)(ii)(B); EEO-MD-110 at 11-17. While the attorney is not required to record in great detail the manner in which each minute of time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Spencer v. Dep’t of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). Reasonable costs can include court reporter fees, transcripts, printing, witnesses, photocopying, mileage, postage, telephone calls, or any other reasonable out-of-pocket expense incurred by the representative in the normal course of providing representational services. 29 C.F.R. § 1614.501(e)(2)(ii)(C); EEO-MD-110 at 11-12 and 11-13. In the instant appeal, Complainant’s attorney has challenged the AJ’s award of less than $58,763.05 in attorney’s fees. According to the Complainant’s appellate brief, their petition for attorney’s fees accurately accounted for the approximately 134 hours of legal work performed by four associate attorneys and three partner attorneys for advising Complainant, corresponding with Agency counsel and preparing the damages brief following the AJ’s decision to render a default judgment in Complainant’s favor. We find the AJ’s decision on attorney’s fees reasonable given that the AJ’s default judgment obliviated the need to prepare for a hearing. Moreover, a fifty-percent reduction of attorney’s fees was appropriate because the AJ correctly found that Complainant prevailed in her discrimination allegations on Claims 2, 3, 4, and 8, but failed to do so on the remaining half of the claims asserted (Claims 1, 5, 6, and 7). CONCLUSION Based on the foregoing analysis, we AFFIRM the Agency’s final action adopting the AJ’s awarding Complainant $5,000 in non-pecuniary compensatory damages and $29,381.52 for attorney’s fees and costs. ORDER To the extent that it has not already done so, the Agency is ORDERED to take the following remedial action within sixty (60) calendar days of when this decision becomes final: 8 2021001282 1. The Agency shall pay Complainant $ 5,000.00 in compensatory damages. 2. The Agency shall pay Complainant $29,381.52 in attorney's fees and costs. 3. The Agency shall remove the written letters of warning from Complainant’s personnel file to the maximum extent possible. 4. The Agency shall remove any and all comments by S1 from Complainant’s Fiscal Year 2016 performance review, in the event that it is not possible for the Agency to excise S1’s comments from the Fiscal Year 2016 performance review, then the Agency shall remove Complainant’s entire Fiscal Year 2016 performance review from the record to the maximum extent practicable. 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 verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 9 2021001282 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 10 2021001282 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. 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 August 4, 2022 Date