01a32221
03-24-2004
Carlos D. Lopez, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Carlos D. Lopez v. Department of Homeland Security
01A32221
3/24/04
.
Carlos D. Lopez,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,<1>
Agency.
Appeal No. 01A32221
Agency No. I-98-W045
Hearing No. 340-99-3899X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his claim for compensatory damages arising out of his
equal employment opportunity (EEO) complaint of unlawful 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., Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. , and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order, and directs the agency
to comply with the ORDER below.
Complainant filed a formal complaint alleging the agency discriminated
against him on the bases of race (Hispanic), sex (male), age
(D.O.B. 6/8/46) and perceived disability, when, on January 26, 1998,
he was not selected for the position of Investigative Assistant,
GS-1802-5/6/7 under vacancy announcement SFR98-BKI-01. Following an
investigation, complainant sought and received a hearing before an EEOC
Administrative Judge. On February 1, 2002, the AJ issued a decision
finding that complainant was discriminated against on the bases of race,
sex and age.
On March 12, 2002, complainant presented to the AJ his request for
$1.3 million in compensatory damages. Thereafter, the AJ commenced
discovery and the agency served complainant with discovery requests in
order to present evidence of compensatory damages. Complainant failed
to respond to the agency's requests, and accordingly, the agency filed
a Motion to Compel and a Motion for Sanctions. On September 4, 2002,
the AJ issued a Notice to Show Cause why sanctions should not be imposed.
Complainant did not timely respond to the Notice to Show Cause. Instead,
complainant, through his representative filed a �Notice of Withdrawal
from Damages Hearing and Request for Final Agency Decision.�
On September 18, 2002, the AJ issued a decision on damages and found that
complainant should be sanctioned for his �casual, if not contemptuous,
attitude� when he failed to comply with the AJ's orders. As a sanction,
the AJ determined that complainant's representative should not be
reimbursed for any costs related to the case, and that complainant's
compensatory damages award should be reduced by $2,500.00. Furthermore,
the AJ ordered the agency to seek additional proof from complainant as
to his claim of compensatory damages and calculate his award. Finally,
the AJ ordered that complainant be retroactively promoted into the
position of Investigative Assistant, provided back pay, and other relief.
On March 11, 2002, complainant submitted to the agency a request for
$300,000.00 in compensatory damages for emotional pain, suffering,
inconvenience and loss of enjoyment of life. He also submitted a
note from his wife wherein she states that since the discrimination,
complainant has suffered deteriorated health, lost sleep, humiliation,
marital and mental stress. Contained in the submissions are two notes
from complainant's doctor listing blood pressure readings from November
26, 2001 until January 2, 2002. A note from a co-worker states that
complainant's health has suffered from the agency's actions. Finally,
another co-worker explains that he has noticed a decline in complainant's
health since he started working for the agency in 1995.
On November 22, 2002, the agency issued a final decision implementing
the AJ's decision, and advised complainant that it would be issuing its
decision on damages in 60 days.
On February 12, 2003, the agency issued a final decision finding that
complainant was entitled to $5,000.00 in compensatory damages, less
$2,500.00 due to the AJ's sanction. Specifically, the agency found that
complainant failed to present sufficient evidence that would merit a
higher award. The agency denied complainant any pecuniary damages in
light of his failure to submit any evidence of out of pocket expenses.
Neither party submitted any contentions on appeal.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her 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). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id.
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. N
915.002, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992) (Guidance). Briefly
stated, the 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. Dept. 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 the complainant and the extent to which
other factors may have played a part. Guidance 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.
In Carle v. Dept. of the Navy, 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.
EEOC Appeal No. 01922369 (January 5, 1993). 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. The complainant could also submit documentation
of medical or psychiatric treatment related to the effects of the
discrimination. Id.
After a careful review of the record, we find the agency's award
properly compensates complainant for his injuries due to the agency's
discrimination. We agree that complainant failed to present sufficient
objective evidence of the harm he suffered due to the discrimination,
that would merit a higher award. Although the record contains evidence
that complainant suffers from diabetes and high blood pressure, we are
unable to attribute his deteriorating condition to the discrimination
absent sufficient evidence of causation. Accordingly, we AFFIRM the FAD,
and direct the agency to comply with the ORDER below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
Within thirty (30) days from the date this decision becomes final,
the agency shall offer complainant the position of Investigative
Assistant or a substantially equivalent position, with back pay plus
interest, retroactive to January 23, 1998, the date of the nonselection.
Complainant shall have 15 days from receipt of the offer to accept or
decline the offer. Failure to accept the offer within 15 days will be
considered a declination of the offer, unless the complainant can show
that circumstances beyond his control prevented a response within the
time limit. If the offer is declined, the agency shall award complainant
a sum equal to the back pay he would have received, computed in the
manner prescribed by 5 C.F.R. � 550.805, from January 23, 1998 until the
date the offer of appointment was declined. If complainant accepts the
offer of appointment, the agency shall award complainant a sum equal to
the back pay he would have received, computed in a manner prescribed by
5 C.F.R. � 550.805, from October 28, 1995 to the commencement day of
the new position. Interest on back pay shall be included in the back
pay computation.
The agency shall determine the appropriate amount of back pay, with
interest, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant shall cooperate in the agency's
efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there
is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision.
Within sixty (60) days from the date this decision becomes final, the
agency shall pay complainant $2,500.00 in non-pecuniary compensatory
damages.
Within sixty (60) days from the date this decision becomes final, the
agency shall provide training to the responsible management officials
in the laws prohibiting employment discrimination.
The agency shall post a notice in accordance with the paragraph below.
The agency shall consider taking disciplinary action against the
employees identified as being responsible for the discrimination
perpetrated against complainant. The agency shall report its decision.
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.
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 of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
3/24/04
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
violations of Title VII of the Civil Rights Act of 1964, 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. have occurred
at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions,
or privileges of employment.
The San Francisco District Office, Department of Homeland Security,
San Francisco, California, (hereinafter referred to as �facility�)
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The facility has been found to have discriminated on the bases of
race, age and sex when it did not select an employee for a vacancy.
The facility was ordered to promote complainant to the position,
and award him back pay and all other benefits. The agency was also
ordered to pay complainant's compensatory damages, provide training,
consider taking disciplinary action against the responsible officials,
and post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1The complaint herein was originally filed against the Department of
Justice, Immigration and Naturalization Service. The Immigration and
Naturalization Service is now a component of the Department of Homeland
Security.