0720090013
11-09-2009
John Bartolomeo, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
John Bartolomeo,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0720090013
Hearing No. 470200700163X
Agency No. HS06TSA001527
DECISION
On March 13, 2008, an EEOC Administrative Judge (AJ) issued a bench
decision containing a finding that the agency had violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., by
unlawfully retaliating against complainant by eliminating his position
as Deputy Federal Security Director at its airport in Toledo, Ohio.
Concurrent with its November 12, 2008 final order rejecting a portion of
the AJ's decision, the agency filed a timely appeal, which the Commission
accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
the AJ's remedies awarded as a result of his finding that it discriminated
against complainant on the basis of reprisal.1 The agency asserts
that the remedies awarded are not supported by the record and are
well beyond what is reasonably related to the issues in this case.
Specifically, the agency concluded that the AJ abused his discretion
by awarding $46,424.12 plus interest for the purported loss incurred
in the sale of complainant's Ohio property. The agency also concluded
that the non-pecuniary compensatory damages award of $10,000.00 is
grossly excessive. For the following reasons, the Commission REVERSES
the agency's final order.
On June 12, 2005, complainant assumed the position of Deputy Federal
Security Director (DFSD) at the airport in Toledo, Ohio. Prior to that
time, complainant was employed by the agency at its Headquarters in
the Washington, D.C. area. In order to take the position, complainant
relocated his family to Toledo and purchased a home and enrolled his
son in school. Complainant was sent to a number of expensive training
programs and was never advised that the position might be eliminated.
In April through June 2006, complainant was interviewed as a witness
in another DFSD's EEO complaint against their mutual boss, the Federal
Security Director (FSD). In May 2006, complainant contacted the agency's
EEO office to initiate his own EEO complaint against the FSD.
Complainant filed a formal EEO complaint with the agency on July 25,
2006, alleging that the agency had discriminated against him on the
bases of race (White), sex, and reprisal when: (1) on April 5, 2006,
he was not allowed to attend a mandatory meeting; (2) on April 5, 2006,
his supervisor berated him; (3) on May 16, 2006, his supervisor told
the Toledo Airport Director
that he was being removed from his position; and (4) on June 20, 2006,2
complainant was notified that his position was being eliminated and he
would be removed from service effective September 30, 2006.
At the conclusion of the investigation into his complaint, complainant was
provided a copy of the investigative report and requested a hearing before
an AJ. Following a hearing, the AJ found that while complainant had
not proved discrimination concerning the first 3 claims, complainant had
established reprisal discrimination, in claim 4, when the FSD eliminated
his position. The AJ further found that the agency's articulated
reasons for its actions with respect to this latter claim were false.
It is noted that in August 2006, before his separation became effective
in September, complainant applied and was selected for another position
back in the Washington, D.C. area.
In a supplemental order following his finding of discrimination, the
AJ ordered make-whole relief in the amount of $46,424.12 plus interest
for the loss incurred in the sale of complainant's home in order to
move from Ohio to Washington, D.C; the restoration of all wages and
salary lost in complainant's transition from Ohio to Washington, D.C;
EEO training for responsible management officials (RMOs); the removal
of all negative information placed in complainant's file by the RMO;
the posting of a Notice that discrimination was found in the workplace;
and $10,000.00 in non-pecuniary compensatory damages. Complainant was
also awarded attorney's fees of $33,465.81 minus 1%,3 and costs incurred
in the processing of the complaint.
On appeal, the agency argues that the AJ's award of damages for the
loss complainant incurred in the June 2007 sale of his home in Toledo
was made in error because complainant's choice to sell his house in
2007 in unfavorable market conditions resulted in claimed losses that
are too speculative and not attributable to the actions of the agency.
In addition, concerning the non-pecuniary damages awarded in this matter,
the agency asserts that $10,000.00 was excessive in light of its action
in this case. Accordingly to the agency, merely informing complainant
that his position was going to be eliminated as part of an agency-wide
position realignment and reduction program did not warrant an award of
this magnitude in compensatory damages. The agency further asserts that
the amount awarded is untenable, especially since complainant transferred
to another position as a Management/Program Analyst before he was actually
separated.
In response to the agency's appeal, complainant asks the Commission
to uphold the AJ's ruling on remedies awarded. Complainant contends
that he correctly figured the loss incurred in the sale of his home,
and the non-pecuniary damage amount is not excessive.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
When discrimination is found, the agency must provide the 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 Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); Adesanya v. United States Postal Service, EEOC Appeal
No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil
Rights Act of 1991, a complainant who establishes unlawful intentional
discrimination under either Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. or Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. may receive 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) as part of this "make whole" relief.
42 U.S.C. � 1981a(b)(3). In West v. Gibson, 119 S.Ct. 1906 (1999), the
Supreme Court held that Congress afforded the Commission the authority
to award compensatory damages in the administrative process. 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.
42 U.S.C. � 1981a(b)(3).
To receive an award of compensatory damages, a complainant must
demonstrate that he or she has been harmed as a result of the agency's
discriminatory action; the extent, nature, and severity of the harm;
and the duration or expected duration of the harm. Rivera v. Department
of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for
reconsideration denied, EEOC Request No. 05940927 (December 11, 1995);
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992),
at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. EEOC Notice
No. 915.002 at 8. Objective evidence of compensatory damages can include
statements from the complainant concerning his or her 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 nonpecuniary
losses that are incurred as a result of the discriminatory conduct.
Statements from others, including family members, friends, health
care providers, 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. See Lawrence v. United States Postal Service,
EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Evidence from a health care provider or other expert is not a mandatory
prerequisite for recovery of compensatory damages for emotional harm.
A complainant's own testimony, along with the circumstances of a
particular case, can suffice to sustain his or her burden in this regard.
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. The absence of supporting evidence,
however, may affect the amount of damages appropriate in specific cases.
Lawrence, EEOC Appeal No. 01952288.
In the present case, we find that the AJ's award, of $46,424.12 plus
interest, properly compensated complainant for the loss incurred in
the sale of his home in order to move from Ohio to Washington, D.C.
The evidence of record establishes that complainant purchased the Ohio
home in August 2005, shortly after he assumed the Toledo DFSD position,
for $296,000. The record further indicates that complainant listed the
home for sale in July 2006, after he learned his position was being
eliminated. Complainant left Toledo in August 2006 to assume a new
position he obtained back in the Washington area. It appears that
the Toledo home was rented to the eventual purchasers in approximately
November 2006. The renters purchased the home for $266,000, with a
closing date of June 6, 2007. The rental payments and a deposit from the
renters were credited back to them towards the purchase price of the home.
Settlement statements indicate that complainant was required to provide
a cashier's check in the amount of $46,424.12 at the closing of the
house sale. Based on this evidence, we find that the AJ did not err in
concluding that a $46,424.12 loss in the sale of the home was incurred
by complainant as a direct result of the agency's discriminatory actions
which resulted in complainant having to move back to the Washington area
just one year after moving to Toledo.
Citing to a number of prior Commission cases, the agency argues that
complainant is not entitled to reimbursement for the loss in the sale
of his Toledo home because the claimed losses are too speculative.
However, we are persuaded by the AJ's reasoning that the instant case is
distinguishable for the cases referred to by the agency. For example,
in Kerschner v. Department of Labor, EEOC Appeal No. 01933023 (March 15,
1994), the Commission found discrimination in a non-selection and ordered
complainant placed in the position in question, which required him to move
from Colorado to Washington, D.C. Complainant in that case argued that
if he had sold him home at the time of the non-selection, rather than
years later when he was awarded the position, he would have received a
higher price because of market conditions. Therefore, he sought damages
for this asserted loss of value in the home. The Commission denied
the request as too speculative, noting first that complainant had yet
to sell the home, and then that any calculation of loss would involve
speculative analyses of the housing market over time, the availability
of potential buyers and the fluctuations of interest rates. Unlike the
situation in Kerschner, in the instant case, complainant has sold his
home and the record establishes the exact dollar amount he was required
to provide at the closing. The value to complainant's loss here is not
subject to speculation.
Moreover, we are unpersuaded by the agency's argument that it was not
responsible for the extent of complainant's losses because he chose to
hold onto his home for a year after the agency's discriminatory action
resulting in his selling in a declining market. The evidence supports
the AJ's finding to the contrary, indicating that complainant listed the
home for sale shortly after he learned his position was being eliminated,
rented it with the option to buy, and sold it to the renters six months
later. The record is clear that complainant would not have had to sell
the house had it not been for the discriminatory actions of the agency,
and supports a finding that he made reasonable efforts to mitigate his
damages.
With respect to non-pecuniary damages awarded, complainant testified to
his emotional distress associated with having to uproot his family and
move them back to Virginia. Further, the AJ relied upon complainant's
testimony in awarding him emotional distress damages, which included
testimony of complainant that he was treated for emotional distress
by his family medical doctor. The agency does not provide evidence to
the contrary. In view of the evidence presented, we find that an award
of $10,000 by the AJ is supported by substantial evidence of record.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the Order
below.
ORDER
The agency is ordered to take the following remedial action:
(1) The agency shall pay complainant $46,424.12 plus interest for the
loss incurred in the sale of his home in order to move from Ohio to
Washington, D.C., no later than sixty (60) calendar days after the date
this decision becomes final.
(2) The agency shall pay complainant $10,000.00 in non-pecuniary
compensatory damages, no later than sixty (60) calendar days after
the date this decision becomes final. 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."
(3) The agency shall provide EEO training to the responsible management
officials identified in this complaint on their responsibilities to
prevent employment discrimination under TE VII within 120 calendar days
after this decision becomes final.
(4) The agency shall pay attorney's fees in the amount of $33,465.81
minus 1%.
(5) The agency shall remove all negative information placed in
complainant's personnel file by the Responsible Management Officials
involved in this case.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Toledo, Ohio airport 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 (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 (K1208)
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 (M1208)
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, 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 (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
November 9, 2009
__________________
Date
1 The agency does not challenge the AJ's finding of discrimination.
2 Complainant was initially informed orally in June, and then later
received a Letter of Separation dated July 24, 2006.
3 The AJ indicated that the 1 percent deduction reflects the race and
sex claims that complainant withdrew during the hearing.
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0720090013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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