[Redacted], Linda S., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2022000403 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linda S.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022000403 Hearing No. 510-2021-00019X Agency No. 63-2020-00039D DECISION On October 28, 2021, 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 October 4, 2021, final decision on the issue of compensatory damages and attorney’s fees concerning her 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. At the time of events giving rise to this complaint, Complainant worked as an Enumerator at the Agency’s Area Census Office, Atlanta Regional Census Center in Orlando, Florida. On January 21, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity when: 1. beginning on September 19, 2019, Complainant’s assignments were transferred away from her, and she received fewer assignments; 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. 2022000403 2 2. on September 24, 2019, Regional Technician filed a conduct/ performance problem report against Complainant for falsification of her timesheet, conducting personal business on duty, insubordination, and unauthorized use of government funds or property; and 3. on September 30, 2019, Complainant was terminated and made ineligible for future opportunities with the Agency, whereas her male coworker was not terminated. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. On June 10, 2021, the Agency issued its final decision finding that Complainant produced sufficient evidence to create a prima facie inference of discrimination regarding claims 2 and 3 but did not find any violations as to claim 1. As part of the decision, Complainant was granted full, make-whole relief, including back pay with interest and benefits for the period of September 30, 2019, to the date when Complainant’s male colleague’s appointment ended. The Agency also ordered, among other corrective actions, that Complainant be made eligible for future employment with the Agency and the expungement from all official Agency records any reference to Complainant’s documentation of conduct/performance problems and termination, including Forms D-282, D-283, and D-291, respectively issued on September 24, 26, and 30, 2019. Additionally, Complainant was requested to provide proof on the issue of compensatory damages and attorney’s fees. On October 4, 2021, the Agency issued its decision regarding Complainant’s entitlement to ompensatory damages pursuant to 29 C.F.R. § 1614.110(b) and attorney’s fees. The Agency awarded compensatory damages of $10,000.00 and attorney’s fees and costs of $1,472.50. Complainant filed an appeal from the Agency’s decision on compensatory damages and attorney’s fees. Other than submitting the appeal form, Complainant did not submit any arguments or documentation in support of her appeal. In response, the Agency provided a compliance report indicating that it had taken all remedial actions ordered in its decisions, including the payment of $10,000.00 in compensatory damages and $1,472.50 in attorney’s fees. ANALYSIS AND FINDINGS Compensatory Damages To receive an award of compensatory damages, Complainant must demonstrate that she has been harmed as a result of the Agency's discriminatory action; the extent, nature, and severity of the 2022000403 3 harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (EEOC Notice No. 915.002) (July 14, 1992), at 11-12, 14. Compensatory damages may be awarded for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) which are directly or proximately caused by the agency's discriminatory conduct. EEOC Notice No. 915.002 at 8. The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. Id. at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14, see Goetze v. Dep't of the Navy, EEOC Appeal No. 01991530 (Aug. 23, 2001). In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), the Commission explained that “objective evidence” of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep’t of Agric., EEOC Appeal No. 01945652 (July 17, 1995). In support of her compensatory non-pecuniary damages request, Complainant provided statements from her mother, herself, and her Licensed Mental Health Counselor. Upon review of what was available and Commission precedent, we find that the Agency’s award of $10,000.00 in non-pecuniary compensatory damages to be appropriate. See Wilda M. v. U.S. Postal Serv., EEOC Appeal No. 0120160472 (Aug. 25, 2017) ($10,000.00 awarded to Complainant who suffered weight loss, severe anxiety, depression, stress, low libido, & was prescribed anti-anxiety medication, in which negatively impacted her marriage); Complainant v. Dep’t of Agric., EEOC Appeal No. 0120132114 (May 29, 2015) ($10,000.00 awarded to Complainant who suffered embarrassment, humiliation, damage to her professional reputation, & loss of self-esteem. Husband attested to Complainant’s daily life, the strain on her marriage, & diminished happiness from regular home & family activities); Fidelia F. v. Dep’t of Agric., EEOC Appeal No. 0120150584 (Apr. 11, 2017) ($7,500.00 awarded to Complainant experienced mental anguish & humiliation after not receiving the promotion, felt helpless, suffered diminished self-esteem, & developed migraines, elevated blood pressure & weight gain). Additionally, the Commission finds that this award of $10,000.00 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)). 2022000403 4 We note that Complainant had previously noted the high stress that she suffered while preparing for her EEO complaint. We acknowledge the trying circumstances in filing an EEO claim. However, the Commission has previously held that a complainant is not entitled to recover non- pecuniary damages for pain or stress associated with prosecution of an EEO complaint. Alexander v. Dep't of the Army, EEOC Appeal No. 0720060050 (Apr. 15, 2010) (citing Appleby v. Dep't of the Army, EEOC Appeal No. 01933897 (Mar. 4, 1994)). Accordingly, this was not taken into consideration when determining the appropriate non- pecuniary compensatory amount to award. Attorney’s Fees and Costs The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. § 1614.501(e); see also EEO MD-110, at Chap. 11, § I. 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. See 29 C.F.R. §1614.501(e)(ii)(B); Blum v. Stenson, 465 U.S. 886, 899 (1984); Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). The Agency stated that Complainant submitted a request for $1,472.50 in attorney’s fees and provided evidence that it has paid this requested amount in full. We discern no reason to disturb this finding. Based on the Agency’s submission and Complainant’s failure to raise any arguments or concerns regarding all prior-ordered relief in the instant case, we find that the Agency has complied with its orders and there is no further action required by the Agency. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's decision. 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. 2022000403 5 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). 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. 2022000403 6 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 March 22, 2023 Date