[Redacted], Shanta S., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Office of Inspector General), Agency.

Equal Employment Opportunity Commission

Mar 6, 2023

Appeal No. 2022005086 (E.E.O.C. Mar. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shanta S.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Office of Inspector General), Agency. Appeal No. 2022005086 Agency No. DOT2018-27854-OIG-03 DECISION On September 13, 2022, 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 August 26, 2022 final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Agent/Criminal Investigator at the Agency’s Region 4, New Orleans, Louisiana Port of Duty in New Orleans, Louisiana. On April 22, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (YOB: 1976), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, among other claims, on or about May 29, 2018, her personally identifiable information, including information regarding her EEO activity, was inappropriately disclosed to her colleagues and managers, who did not have a need or right to know the information. 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. 2022005086 2 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ granted the Agency’s motion for summary decision, concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Of relevance here, the AJ dismissed claim 3, the allegation regarding the improper disclosure of personally identifiable information including her EEO activity, for failure to state a claim finding it involved a dispute regarding Freedom of Information Act (FOIA) requests and allegations of violations of the Privacy Act, both of which are outside the jurisdiction of the Commission. The Agency issued a final order adopting the AJ’s finding. Complainant appealed. In Shanta S. v. Dep’t of Transp., EEOC Appeal No. 2020003787 (Sept. 21, 2021). the Commission affirmed the Agency’s finding with respect to Complainant’s claims of disparate treatment and hostile work environment but reversed the dismissal of the claim of improper disclosure of information regarding Complainant’s EEO activity because Complainant was, in fact, alleging that she was subjected to reprisal when management improperly disclosed her EEO activity to her coworkers and supervisors, which the Commission has held constitutes reprisal. On reconsideration, the Commission affirmed its decision and ordered, in pertinent part, that the Agency conduct a supplemental investigation with respect to Complainant’s entitlement to compensatory damages and issue a final decision. See Shanta S. v. Dep’t of Transp., EEOC Request No. 2022000338 (March 7, 2022). Pursuant to the Commission’s order, Complainant submitted a request for compensatory damages requesting the statutory limit of $300,000 in damages and submitting unsworn statements from Complainant, her husband, and several witnesses attesting to the emotional distress Complainant suffered as a result of the Agency’s discriminatory conduct which they also assert likely contributed to Complainant’s suffering physical health problems, including kidney stones and two miscarriages. Complainant also submitted pharmacy receipts, spa receipts, an apartment lease for the period 10/30/2020 to 04/29/2021, house plan receipts, medical articles, one medical note, and her performance evaluations for the years 2018-2021. The Agency denied Complainant’s request for pecuniary compensatory damages in the form of housing expenses she incurred, the lost deposit for Complainant’s honeymoon and wedding which Complainant rescheduled due to the timing of various stages of the EEO process, medical costs, and leave restoration. The Agency found that Complainant did not provide adequate evidence of a nexus between the Agency’s discriminatory conduct in the unlawful disclosure and the claimed costs. The Agency further found that the evidence did not support Complainant’s assertion that she suffered prolonged emotional distress as a result of the Agency’s action and that Complainant did not provide adequate justification to support her assertions that her various health problems were, in fact, caused by the Agency’s action. The Agency therefore awarded Complainant a limited award of $5,000 for the harm she suffered as a result of the Agency’s single action of reprisal. 2022005086 3 Complainant appeals the Agency’s decision, reiterating her contention that she is entitled to $300,000 in compensatory damages for the harm she has suffered. The Agency did not file a brief in response. ANALYSIS AND FINDINGS 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”). Pecuniary Compensatory Damages Compensatory damages may be awarded for losses and suffering due to the discriminatory acts or conduct of the agency and include past pecuniary losses, future pecuniary losses, and non- pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. See Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992); Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Pecuniary losses are out-of-pocket expenses incurred because of the agency's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement. EEO MD-110, at Chap. 11, VII.B.2 (Aug. 5, 2015) (internal citations omitted). Future pecuniary damages are losses likely to occur after the resolution of the complaint. In a claim for pecuniary damages, a complainant must demonstrate, through appropriate evidence and documentation, the harm suffered because of the agency’s discriminatory action. Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure. The agency is only responsible for those damages that are clearly shown to be caused by the Agency's discriminatory conduct. To recover damages, a complainant must prove that the employer's discriminatory actions were the cause of the pecuniary loss. Id. (citations omitted). 2022005086 4 In this case, Complainant contends that she is entitled to pecuniary damages for a loss of over $4,000 on plans to build a new house which she and her husband were not able to pursue due to concerns about the cost of prosecuting an EEO case, housing expenses during a period of a few months when she and her husband separated due to the stress of the EEO process including the unlawful disclosure, around $35,000 in costs she and her husband had already paid and were unable to get back for their planned wedding and honeymoon which they were not able to have because of the EEO process, medical expenses related to health conditions, and leave restoration for the hours of leave she was obliged to use while pursuing her EEO complaint. We reject Complainant’s contention. Damages are only appropriate if they are directly or proximately caused by the Agency’s discrimination. We specifically note that compensatory damages are not available for costs incurred as a result of participating in the EEO process. See Kanta v. U.S. Postal Serv., EEOC Appeal No. 01963376 (Feb. 6, 1998). In this case, we find that Complainant did not persuasively establish that this single incident at issue was, in fact, the cause of any of the claimed pecuniary damages Complainant suffered, but rather appear to be the result of the cost incurred as part of the EEO process, which is not compensable. We find that Complainant has not shown that the Agency’s unlawful retaliation caused any pecuniary loss and therefore, we affirm the Agency’s denial of pecuniary, compensatory damages. See Joshua F. v. Dep’t of Veterans Affs., EEOC Appeal No. 2020003749 (July 28, 2021). Non-pecuniary Compensatory Damages Nonpecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.302, Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the ham and the duration or expected duration of the harm. See Loving v. Dep’t of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or “monstrously excessive” standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep’t of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). 2022005086 5 Objective evidence of compensatory damages can include statements from a complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Statements from others including family members, friends, health care providers, and other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. Complainant’s own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Id. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. Complainant has the burden of proving the existence, nature and severity of the alleged emotional harm. Man H. v. Dep’t. of Homeland Sec’y, EEOC Appeal No. 0120161218 (May 2, 2017). Complainant must also establish a causal relationship between the alleged harm and the discrimination. Id. Absent such proof of harm and causation, a complainant is not entitled to compensatory damages, even if there were a finding of unlawful discrimination. Id.; Wilda M. v. U.S. Postal Service, EEOC Appeal No. 0120141087 (Jan. 12, 2017) (awards for emotional harm are warranted only if complainant establishes a sufficient causal connection between the agency's illegal actions and her injury). Complainant contends that she suffered lasting emotional distress which in turn led to physical health problems including kidney stones and two miscarriages as a result of the Agency’s discrimination. In support, Complainant submitted a doctor’s note stating that Complainant has been treated since 2018 for multiple episodes of neck and upper and lower back pain, which the doctor concluded were caused by “an increase in stress from her professional life with resulting periods of prolonged computer work.” See Report of Investigation (ROI) 3 at 1456. Complainant’s husband submitted an unsworn statement attesting to the physical and mental distress Complainant has suffered, including difficulty sleeping, nightmares, stress headaches, kidney stones, miscarriages, constant fears of career instability, and concerns for her safety on the job because of Complainant’s no longer trusting her coworkers to have her back on the field. See ROI 3 at 1457-59. Complainant submitted her own statement, asserting that after the Agency’s disclosure of her EEO case, many of the managers avoided speaking with her or seemed uncomfortable with her and that she has had colleagues tell her outright that she is the reason they had to undergo Civil Diversity and Inclusion training, even though it was not true as the training is federally mandated. See ROI 3 at 1617-18. She stated that she constantly second- guesses her safety when out in the field because she cannot be sure if the person who is supposed to have her back will actually protect her now. See ROI 3 at 1618. She further asserts that she has applied for but never been selected for numerous positions in different agencies. See ROI 3 at 1618-20. 2022005086 6 She also stated that she has suffered multiple episodes of kidney stones and two miscarriages which she attributes to the stress of having to relive what happened to her during the EEO process and waiting for the judgment. See ROI 3 at 1621-23. While we are sympathetic to the physical and emotional distress Complainant has suffered, we do not find that the evidence in the record is sufficient to establish that the vast majority of Complainant’s suffering is due solely to the incident at issue. Moreover, to the extent that the physical symptoms Complainant suffered are due to the ongoing stress of the EEO process are not compensable. See Bernetta B. v. Dep’t of Educ., EEOC Appeal No. 0120161513 (Aug. 23, 2017); Appleby v. Dep’t of the Army, EEOC Appeal No. 01933897 (March 4, 1994) (holding that compensatory damages are not available for stress caused by participating in the EEO process). We also cannot find that Complainant has established that she was not selected for various jobs at other agencies due to the Agency’s act of reprisal as there is no evidence in the record to support Complainant’s assertion that the non-selections were all due to the harm to her professional reputation caused by the Agency’s unlawful disclosure of her EEO activity. We agree with Complainant, however, that the Agency’s limited award of $5000 is not adequate to compensate Complainant for the emotional distress she suffered, in particular the ways in which the disclosure of her EEO activity has negatively impacted her relationship with her coworkers and her managers. We find that an award of $10,000 is more appropriate to compensate Complainant for the emotional distress she suffered due to the Agency’s act of reprisal. We find that an award of $10,000 properly reflects the duration and severity of the harm Complainant suffered and is consistent with similar cases where the Agency’s actions have caused emotional distress and stress over the loss of her professional reputation. See Jazmine F. v. Dep’t of Defense, EEOC Appeal No. 2021001591 (Sept. 27, 2022) (awarding $10,000 where one of the complainant’s supervisors discussed her EEO activity making her feel her professional reputation had been besmirched and causing complainant to suffer adjustment disorder, anxiety, depression, insomnia, and Bell’s Palsy); Davida L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120172609 (Feb. 15, 2019) (increasing an award to $10,000 where a hospital director disclosed the complainant’s EEO activity to the hospital’s chief of staff and implied her career was in jeopardy as a result, causing the complainant to suffer panic attacks and insomnia and become obsessed with problems at work); Complainant v. Dep’t of the Treasury, EEOC Appeal No. 20120123017 (April 24, 2012) (awarding $10,000 where the complainant’s manager made a comment about her filing of EEO complaints which resulted in complainant suffering headaches, nausea, insomnia, personality changes, depression, anxiety, and a deterioration of her physical health). Accordingly, considering the nature and duration of Complainant’s emotional harm and with reference to damage awards reached in comparable cases, we find Complainant is entitled to an award of $10,000 in non-pecuniary compensatory damages. 2022005086 7 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency’s final order and remand the matter in accordance with the Order below. ORDER The Agency is ordered to take the following remedial action: 1. Nonpecuniary, Compensatory Damages. Within 60 days of the date this decision is issued, the Agency shall pay Complainant $10,000 in nonpecuniary, compensatory damages. 2. Discipline. To the extent the Agency has not already done so, within 120 days of the date this decision is issued, the Agency shall consider taking disciplinary action(s) against the Office of General Counsel (OGC) Government Information Specialist identified as being responsible for the unlawful discrimination perpetrated in this case. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission. 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. 3. Training. To the extent it has not already done so, within 90 days of the date this decision is issued, the Agency shall provide a minimum of eight (8) hours of in-person interactive training to the Government Information Specialist with a special emphasis on preventing reprisal for prior protected EEO activity. The Agency may contact our Training and Outreach Division for Assistance in obtaining the necessary training via https://www.eeoc.gov/federal-sector/federal-training-outreach. 4. Posting Notice. To the extent it has not already done so, within 30 days of the date this decision is issued, the Agency is ordered to post a notice in accordance with the paragraph below entitled “Posting Order.” The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report shall include supporting documentation verifying that the corrective actions have been implemented. 2022005086 8 POSTING ORDER (G0617) The Agency is ordered to post at its OIG Region 4 facility in New Orleans, Louisiana and at its Office of General Counsel facility in Washington, D.C. copies of the attached notice. Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 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 as directed in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY’S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. 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 (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). 2022005086 9 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. 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. 2022005086 10 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 March 6, 2023 Date