0120101559
09-13-2012
Wayne A. Morgan, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.
Wayne A. Morgan,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120101559
Hearing No. 320-2005-00215X
Agency No. FSA-2005-00029; FSA-2005-00202
DECISION
On February 18, 2010, Complainant filed an appeal from the Agency's final order 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. For the following reasons, the Commission MODIFIES the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a District Director at the Agency's facility in Belle Fourche, South Dakota. On September 28, 2004, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the basis of his national origin (Native American association)1 when:
1. in December 2003, management cancelled a Statewide Unity conference Complainant was charged with organizing;
2. on December 16, 2003, and January 22 and March 19, 2004, his supervisor (S1) referred to him in a derogatory manner;
3. management continuously denied him training;
4. in April 2004, management tried to intimidate him into taking a County Executive Director (CED) position by threatening to redistrict and take away the counties assigned to him;
5. since April 2004, management failed to provide him with information on district directors' meetings and the minutes of meetings he did not attend, and denied him the right to attend district directors' monthly meetings and conferences; and
6. on May 3, 2004, management decreased his duties as the Native American Liaison/Outreach Coordinator and reassigned the oversight of his counties to other district directors.
Complainant filed a second formal complaint on April 8, 2005, alleging that the Agency discriminated against him in reprisal for his prior protected EEO activity when:
7. S1 demanded special activity reports solely from Complainant;
8. S1 excluded him from travel to attend meetings;
9. S1 excluded him from travel to North Dakota in 2005;
10. S1 excluded him from telephone conference calls and receipt of job-related emails;
11. S1 excluded him from online training;
12. S1 prohibited him from holding any meetings; and
13. S1 delayed completion of Complainant's performance appraisal.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On September 28, 2006, the AJ assigned to the case issued a decision without a hearing finding no discrimination. The Agency adopted the AJ's finding and Complainant appealed the decision to the Commission. The Commission reversed the AJ's final order and remanded the matter for a hearing. Morgan v. Department of Agriculture, EEOC Appeal No. 0120072653 (Aug. 29, 2008). The AJ held a hearing on June 2, 2009, and issued a decision on August 3, 2009, finding that Complainant established that the Agency subjected him to discrimination as alleged.2
In her decision, the AJ concluded that Complainant had been subjected to unlawful national origin and reprisal discrimination, and that the harassment suffered by Complainant was severe and pervasive. By way of relief, the AJ awarded complainant: $10,000.00 in non-pecuniary, compensatory damages; $16,168.60 in attorney's fees; and $1,307.63 in costs.3 The AJ also ordered the Agency to: determine whether other District Directors received performance awards for fiscal years 2004 through 2008 and if so, provide Complainant with similar awards; provide EEO training for the employees of Complainant's facility; and post a notice.
When the Agency failed to issue a final order within forty days of Complainant's receipt of the AJ's decision, Complainant filed the instant appeal. The Agency subsequently issued a final order, dated April 14, 2010, adopting the AJ's decision in its entirety.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ's compensatory damages award was insufficient. Complainant argues that the AJ failed to take into account duration and the severity of the harassment, and that because he was forced to retire at least two years earlier than planned, he is entitled to pecuniary damages for his loss of wages. Complainant also contends that the Agency has failed to implement the AJ's order with respect to the determination regarding performance awards for District Directors. Finally, Complainant requests an additional $4,000.00 in attorney's fees, and the payment of an additional $2,975.00 in attorney's fees denied by the AJ.
ANALYSIS AND FINDINGS
The Commission notes that the Agency implemented the AJ's finding of discrimination, and we affirm the Agency's final order adopting those findings by the AJ. Therefore, we move now to the issue of compensatory damages. When discrimination is found, the Agency must provide Complainant with a remedy that constitutes full, make-whole relief to restore him as nearly as possible to the position he 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 his claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. � 1981a(b)(3).
The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, Complainant must submit evidence to show that the Agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the Agency's discriminatory action directly or proximately caused harm to Complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to Complainant, and the duration or expected duration of the harm. Id. at 14.
The AJ noted that Complainant testified that the stress caused by the Agency's actions exacerbated his asthma, for which Complainant received medical attention. Additionally, the record shows that Complainant was diagnosed with hypertension and high blood pressure and he testified that his conditions worsened as a result of the Agency's discrimination. Complainant additionally testified that the discrimination caused harm to his career, status at the Agency, reputation, personal friendships, and relationship with his wife and family. Based on the evidence, the AJ found that Complainant should be awarded $10,000.00 in non-pecuniary damages.
On appeal, Complainant argues that he is entitled to a compensatory damages award of $400,000.00, which we note exceeds the statutory cap of $300,000.00. Here, we find that although we concur with Complainant that the AJ's award is not sufficient to remedy the unlawful discrimination, upon review, we find that an award of $30,000.00 is appropriate given the nature and duration of the harm. We find that this award is supported by the evidence, consistent with prior Commission precedent, and is neither "monstrously excessive" nor the product of passion or prejudice. See Moore v. Department of Justice, EEOC Appeal No. 07A60017 (October 17, 2006) ($32,500.00 award for non-pecuniary, compensatory damages where complainant suffered from intense mental anguish, loss of enjoyment of life, humiliation, injury to reputation, loss of self-esteem, a pronounced lack of energy, and damage to familial relationships due to the Agency's actions); Henderson v. Dep't of Transp., EEOC Appeal No. 01A21633 (August 7, 2003) (awarding $25,000.00 finding that Complainant experienced anguish, headaches, depression, stress, anxiety attacks, nausea, and sleep difficulties); Chaparro v. Social Sec. Admin., EEOC Appeal No. 01A03785 (August 26, 2002) (providing Complainant with $25,000.00 for abdominal pain, chest pain, headaches, trouble sleeping, anxiety, irritability, loss of enjoyment of life, and injury to reputation).
Additionally, we find Complainant's arguments with respect to pecuniary damages unpersuasive. We note that Complainant's contention that he was forced into earlier retirement as the result of the Agency's harassment amounts to a claim of constructive discharge and no such claim was pending before the AJ at the time of the hearing. Accordingly, we find that Complainant is not entitled to pecuniary damages for lost wages.
Further, we note that Complainant contends that the Agency failed to implement the AJ's order with respect to performance awards for District Directors. Given that Complainant has filed the instant appeal, there was no obligation for the Agency to have complied with this provision of the relief yet. We shall include this provision in the Order herein.
Finally, we address the issue of attorney's fees. By federal regulation, the Agency is required to award the attorney's fees for the successful processing of an EEO complaint in accordance with existing case law and regulatory standards. EEOC Regulation 29 C.F.R. �1614.501(e)(1)(ii). Here, we note that although the Agency has challenged the AJ's attorney's fees award, Complainant is requesting additional attorney's fees for work done on the instant appeal and $2,975.00 in payment for services rendered during the pre-complaint process. We find, however, that the attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003). Complainant has not provided a fee petition; therefore, the Commission can not make a determination as to any additional attorney's fees due Complainant. Complainant may, however, submit a fee petition pursuant to the Order herein. With respect to the payment for services rendered during the pre-complaint process, we note that agencies are only required to pay such fees when an Agency does not implement an AJ's finding of discrimination and the Commission upholds the AJ's decision. 29 C.F.R. �1614.501(e)(1)(iv). Here, the Agency fully adopted the AJ's decision. As such, Complainant is not entitled to the payment of attorney's fees for the pre-complaint process.
CONCLUSION
The Agency's decision is MODIFIED and the Agency is instructed to comply with the Order herein (which also adds the consideration of discipline for responsible management officials).
ORDER
The Agency shall take the following remedial actions to the extent that it has not already done so:
1) Within 30 days of the date this decision becomes final, the Agency shall pay Complainant $30,000.00 in non-pecuniary, compensatory damages.
2) Within 30 days of the date this decision becomes final, the Agency shall pay Complainant $17,476.23 in attorney's fees and costs.
3) Within 30 days of the date this decision becomes final, the Agency shall determine whether other District Directors received performance awards in fiscal years 2004 through 2008. If other District Directors received awards, Complainant shall be provided with a similar award for those years.
4) Within 180 days of the date this decision becomes final, the Agency shall provide EEO training to responsible management officials at the Huron, South Dakota facility regarding national origin discrimination and retaliation.
5) Within 180 days of the date this Decision becomes final, the Agency shall consider appropriate disciplinary action against all responsible management officials. The Agency shall report its decision to the Compliance Officer referenced herein. 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 reasons(s) for its decision not to impose discipline.
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.
POSTING ORDER (G0610)
The Agency is ordered to post at its Huron, South Dakota 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 13, 2012
__________________
Date
1 Complainant's spouse and children are Native American. Complainant is alleging discrimination based on his association with his family members and other Native Americans.
2 The AJ found discrimination as to all claims except (9). With respect to claim (9), the AJ concluded that Complainant failed to show that the Agency denied reimbursement of his travel vouchers to North Dakota.
3 The AJ's decision on attorney's fees and costs was issued on November 4, 2009. The Agency's final order adopted this decision.
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0120101559
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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