0120072400
07-17-2009
Jeffrey S. Smith, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jeffrey S. Smith,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120072400
Hearing No. 350-2005-00220X
Agency No. 050018SSA
DECISION
On April 18, 2007,1 complainant filed an appeal from the agency's April
30, 2007 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
At the time of events giving rise to this complaint, complainant worked
as a Paralegal Specialist, GS-12, Step 9, in the agency's Office of
Hearing and Appeals, Albuquerque, New Mexico. On September 28, 2004,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of sex (male) and reprisal for prior protected EEO
activity [arising under Title VII] when:
1. he was not selected for the GS-950-13/14 Supervisory Paralegal
specialist (Hearing Office Director) position that was filled under
vacancy announcement number 03-04; and
2. complainant was subjected to harassment and a hostile work environment
based on reprisal when the Chief Administrative Law Judge (CALJ) set out
to jeopardize the investigation of complainant's previous EEO complaint
by holding a staff meeting and announcing what she described as a new
policy of "micro-management."
At the conclusion of the investigation, complainant was provided 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 and on September 11, 2006, the AJ assigned to the case
partially granted summary judgment concerning complainant's allegation
of non-selection based on reprisal. The AJ denied summary judgment
regarding the remaining allegations of the complaint. The AJ held a
hearing on January 18, 2007 and issued a decision on March 28, 2007.
The AJ found as follows: complainant did not establish that he had been
subjected to discrimination based on sex. Complainant also did not prove
that he was non-selected because of reprisal, or that he was subjected
to a retaliatory hostile work environment. However, complainant did
prove, by a preponderance of the evidence, that the agency committed
unlawful retaliation when the Hearings Officer Chief ALJ ("Chief ALJ")
made statements to employees during a meeting in January 2005, which had
a chilling effect on complainant's ability to pursue his EEO complaint.
As a result of the meeting, employees reported that they feared civil
liability in federal court if they spoke to an EEO Investigator regarding
EEO complaints, to include complainant's non-selection case against the
Chief ALJ. The AJ found "It is clear that many employees interpreted
[the Chief ALJ's] remarks as warnings that making a statement against
management or administrative judges in any context could result in a
lawsuit." The AJ noted that at least one individual refused to testify
in complainant's EEO case for fear of retaliation.
The AJ then specifically found that complainant is entitled to
compensatory damages for past and future pecuniary losses, and
non-pecuniary losses, which are directly or proximately caused by the
agency's discriminatory conduct. The AJ found however, that complainant
(although he had the opportunity to call witnesses) had failed to present
evidence that he suffered any pecuniary or non-pecuniary damages as a
result of the retaliatory actions. The AJ then ordered the agency to:
(1) provide a minimum of six hours of EEO training to all staff; (2)
consider disciplinary action for the responsible management official(s);
and (3) post a notice concerning the finding of retaliation by management
at the Social Security Administration, Office of Hearings and Appeals in
Albuquerque, New Mexico. The agency subsequently issued a final order
in which it adopted, without modification, the AJ's decision.
On appeal, complainant contends that the AJ erred in finding that he
had incurred no damages in this matter. He notes that the AJ's decision
confirms that he was entitled to damages, but found that he had not made
a case for such. He notes that as a pro se complainant he still does not
understand that process, and does not recall ever being advised about it.
He states that he was under the impression that the AJ would independently
investigate entitlement to pecuniary or non-pecuniary damages should
he prevail. Accordingly, complainant attached to his appeal "new and
material evidence" which he states was not readily available when the
previous decision was issued. He requests non-pecuniary damages in the
amount of $50,000.00 (fifty-thousand dollars) on the basis of "emotional
pain, emotional suffering, inconvenience, loss of enjoyment of life,
and loss of health." He encloses statements from himself and several
others offering specific information regarding physical and behavioral
manifestations of the distress, including its duration and impact, he
experienced while at work and home as a consequence of the discrimination.
In reply, the agency asks the Commission to affirm the final order,
noting that "to date, no supporting argument has been received by the
Social Security Administration (SSA)."
At the outset, the Commission finds that complainant presented
persuasive evidence that he did provide the agency with a copy of
his brief. Specifically, the record contains a copy of a letter from
complainant addressed to the Associate Commissioner, Civil Rights and
Equal Opportunity, Social Security Administration in which complainant
assures the agency that he sent a copy of his appeal brief to the agency's
Office of General Counsel in April 2007. Specifically, he states "per
the attached letter please be advised that the information I sent to OFO
in April which consisted of my request for reconsideration and supporting
documentation, was also sent to the Agency representative in my case..."
The Commission is satisfied that the agency was on notice of the
nature and content of complainant's arguments in support of his appeal.
Moreover, the agency was aware that complainant filed an appeal of the
final order, and yet chose not to provide any substantive argument to
the effect that the AJ's order of remedial action was appropriate.
Next, we address whether complainant ought to have received an award
of compensatory damages. The Commission finds that the AJ was on
notice that complainant was seeking compensatory damages, and further,
she specifically stated in her decision that complainant was entitled to
such damages.2 Nevertheless, knowing that complainant was proceeding pro
se, we find that the AJ failed to clearly advise complainant that the
hearing would be his opportunity to put forth evidence in support of a
claim for compensatory damages. Under these circumstances, we exercise
our discretion to consider the evidence which complainant has provided
on appeal in support of his request for $50,000.00 in non-pecuniary
compensatory damages.3
Compensatory Damages
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the CRA,
codified as 42 U.S.C. � 1981a, authorizes an award of compensatory
damages as part of the "make whole" relief for intentional discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in Enforcement
Guidance: Compensatory and Punitive Damages Available Under � 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992)
(Guidance).
Non-pecuniary Damages
In Carle v. Department of the Navy, the Commission explained that 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. 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. Department of Agriculture, EEOC Appeal
No. 01945652 (July 17, 1995).
In support of his claim for non-pecuniary damages, complainant has
submitted written testimony, and several additional statements (none
of which were refuted by the agency) from individuals who confirm that
complainant endured emotional and psychological harm directly because
of the retaliatory conduct of management in this case. Complainant has
presented testimony that, as a direct result of learning that the Chief
ALJ made comments which caused employees to fear retaliation if they
participated in complainant's EEO case, he experienced frustration,
helplessness, humiliation, despair, anger, anguish, sleepless nights,
obsessive thoughts, chronic fatigue, anxiety, and inability to participate
in "life activities."
Complainant's wife indicated that:
[T]he most pronounced effect that I observed can best be described as
unrelenting stress and frustration. This was particularly evident
after his coworkers, people from whom he hoped to gain information,
were placed under threat of lawsuit and remained so while his complaint
was being investigated. From then on he became obsessed with what was
going on at the office. He was up and down all night and always tired.
He used to read several books each week and work on household or
recreational projects. For the next two years his primary activity
was pacing and worrying. He essentially did not go anywhere or do
anything constructive. His entire focus became presenting his case
and getting someone in authority to address the lawsuit issue but that
never happened. By the time of the hearing he was an emotional wreck.
I advised him many times to call the employee assistance program or just
see anyone who might help him deal with what had become an unhealthy
obsession that was obviously making him ill. However, he is not that
type of person based on his past experiences in the service and just
internalized everything . . . .
Additionally, a co-worker who testified at the hearing stated the
following, on appeal:
[I] was at the meeting in which the witness intimidation occurred
and was the first one to notify Mr. Smith, about what happened.
His reaction was predictable but he thought that if the right people
were notified that the situation would be quickly resolved. He took
the problem to [the Regional Chief Judge] and the various agency civil
rights officials but no one would help. That is when this process
began to take an observable toll on his mental state and appearance.
While his investigation was going on he could not gain statements from
others in the office because it would put them at risk of civil lawsuit.
He simply could not believe that someone in higher authority would not
tell the employees their rights and was extremely frustrated that no one
in the agency cared. He was obviously under great stress and was always
drawn and tired looking. I know he takes blood pressure medication and
often observed his complexion to be quite red. Mr. Smith believes in
wrong and right, and in this case wrong had control and I know that also
affected his pride because he could do nothing to fight back... All I
can say is that during this period Mr. Smith was in great distress and
was obviously experiencing a great deal of emotional anguish.
Additional witnesses provided statements more generally to the effect
that complainant endured a great deal of anguish due to the agency's
actions. Although, complainant did not provide any evidence that he
sought medical treatment for his symptoms, as noted above, complainant's
wife has explained that it was complainant's character to internalize
the situation, rather than seek help.
After a thorough review of the record, we find that an award of $25,000.00
is appropriate to compensate complainant for his emotional pain and
suffering resulting from the unlawful retaliation. We point out that
non-pecuniary compensatory damages are designed to remedy a harm and
not to punish the agency for its discriminatory actions. See Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating
that compensatory damages determination must be based on the actual harm
sustained and not the facts of the underlying case). The Commission
notes that this award 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 Utt v. United States Postal
Serv., EEOC Appeal No. 072007001 (March 26, 2009) (awarding complainant
$25,000.00 in non-pecuniary compensatory damages where complainant
provided testimony that as a result of discrimination he suffered from
stress, low self-esteem, difficulty sleeping, weight gain, curtailed
recreational activities, and had to sell some of his possessions because
of financial problems); Parker v. Department of the Navy, EEOC Appeal
No. 0720080062 (February 26, 2009) (awarding complainant $25,000.00 in
non-pecuniary compensatory damages where complainant endured emotional
pain and suffering, humiliation, difficulty sleeping, weight gain,
and loss of enjoyment of life as a result of discrimination).
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
order; however, we find that complainant is also entitled to $25,000.00
in compensatory damages. The agency is instructed to comply with the
Order below.
ORDER (D0403)
To the extent it has not already done so, the agency is hereby ORDERED
to take the following remedial actions, within sixty days of the issuance
of the decision, or the date the decision becomes final:
1. Pay complainant $25,000.00 in non-pecuniary compensatory damages.
2. Provide a minimum of six hours of EEO training to all staff, including
management, at the Albuquerque, New Mexico Hearing Office with an emphasis
on the protection against retaliation.
3. Consider taking appropriate disciplinary action against the responsible
management officials. The Commission does not consider training to
be disciplinary action. The agency shall report its decision to the
Compliance Officer. 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. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its Social Security Administration,
Office of Hearings and Appeals in Albuquerque, New Mexico 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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, D.C. 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 (M01208)
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 77960,
Washington, D.C. 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 (R0408)
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 (Z1008)
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
________07/17/09__________
Date
1 Although complainant filed his appeal prematurely, we exercise our
discretion to accept the appeal as timely filed.
2 Complainant indicated on his formal complaint "I am requesting monetary
compensation in the form of pay differential and damages." ROI, Ex. 2,
at 8; Ex. 20 at 10; see also Ex. 1 at 5.
3 On appeal, complainant does not request pecuniary damages.
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0120072400
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120072400