John Bartolomeo, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionNov 9, 2009
0720090013 (E.E.O.C. Nov. 9, 2009)

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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0720090013