Lonny H.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Jun 30, 2016

0120141222 (E.E.O.C. Jun. 30, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Lonny H.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120141222

Agency No. HS-05-ICE-000716

DECISION

The Commission accepts Complainant’s appeal from the Agency’s January 6, 2014 final
decision concerning his entitlement to compensatory damages following a finding of
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Detention and Deportation Officer at the Agency’s facility in Miami, Florida. On July 19,
2005, September 8, 2005, and November 4, 2005, Complainant filed EEO complaints alleging
that the Agency discriminated against him in reprisal for prior protected EEO activity when:

1. On May 26, 2005, management charged Complainant absent without leave
(AWOL);

2. In a letter dated July 15, 2005, management notified Complainant that he was
suspended for 10 days effective July 25, 2005, for failure to follow leave and
attendance policies;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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3. In August 2005, after Complainant returned from a period of suspension,
management assigned a lower-grade employee to supervise his former unit, while
management reassigned Complainant to the Institutional Removal Program (IRP)
squad;

4. On or about September 21, 2005, management failed to select Complainant for a
GS-13 Supervisory Detention and Deportation Officer position in the Miami Field
Office; and

5. On September 27, 2005, management notified Complainant and all other employees
in the IRP of their reassignment to the Krome Processing Center.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s
request, the Agency issued a FAD pursuant to 29 CF.R. § 1614.110(b). The FAD concluded
that Complainant failed to show that he was subjected to reprisal as alleged.

Complainant appealed and, in EEOC Appeal No. 0120093533 (Oct. 7, 2011), the Commission
affirmed the Agency’s finding of no reprisal for claim (5), because all employees were
reassigned to the Krome Processing Center. With respect to the remaining claims, the
Commission found that for claims (1) and (2), the Agency’s explanation for charging
Complainant with AWOL and suspending him for 10 days was not persuasive. The record
supported Complainant’s statement that he called and spoke with a supervisor, albeit, not his
immediate supervisor, which was an accepted practice at the facility for requesting emergency
leave. Further, the record showed that Complainant's suspension was unprecedented and the
second-longest suspension from 2002 - 2005.

With respect to claim (3), the Commission noted that the Agency maintained that Complainant
was reassigned to non-supervisory duties because he was the subject of an internal
investigation. However, the Commission did not find the Agency's position credible as the
record was devoid of any evidence, i.e., investigative inquiries, investigative reports, or
statements from officials involved in the investigation. Thus, the Commission found that the
Agency’s explanation for reassigning Complainant to non-supervisory duties was also
unworthy of belief.

Finally, regarding claim (4), the Commission noted that the selection panelists inexplicably
failed to specify whether they were aware of Complainants previous EEO activity. Moreover,
the Agency failed to rebut Complainant's allegation that his first-line supervisor (S1) and
second-line supervisor (S2) were aware of and involved in his previous EEO activity when
they requested that his name be removed from the list of finalists for the position. As a result,
the Commission reversed the Agency’s finding of no reprisal as to claims (1) – (4).

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To remedy the discrimination, the Commission ordered the Agency to offer Complainant the
position of GS-13 Supervisory Detention and Deportation Officer in Miami that he would have
occupied had he been selected in 2005; pay Complainant back pay; conduct a supplemental
investigation to determine Complainant’s entitlement to compensatory damages; expunge the
AWOL charge, letter of proposed 14-day suspension, and 10-day suspension from all records;
restore any leave deducted from Complainant’s leave balance attributable to the AWOL charge
and suspension, and compensate him for any lost wages and benefits; provide training and
consider discipline for the responsible management officials; and to post a notice.

The Agency filed a request for reconsideration with the Commission in which it argued, inter
alia, that the Commission’s order to offer Complainant a GS-13 supervisory position in Miami
or a substantially similar position was moot given that Complainant had been subsequently
removed on February 4, 2008, and that the Commission had determined in EEOC Appeal No.
0120091712 (July 6, 2010) that the removal was not discriminatory. The Agency argued that
returning Complainant to duty after his removal, which was based on ethical violations, would
have a substantial impact on the operations of the Agency.

In EEOC Appeal No. 0520120099, the Commission denied the Agency’s request for
reconsideration, but modified its previous decision’s order to reflect that Complainant was no
longer an employee of the Agency. Thus, the Agency was ordered to award Complainant back
pay from the date the selectee assumed the GS-13 Supervisory Detention and Deportation
Officer position until the date of Complainant’s removal from the Agency.

The Agency conducted a supplemental investigation and issued its decision on relief on January
4, 2014. In the decision, the Agency noted again that it was not possible to place Complainant
in the Supervisory Detention and Deportation Officer position as he had been removed in
February 2008. With respect to back pay, the Agency found that Complainant was only
entitled to back pay and interest and benefits for the period of his 10-day suspension.
Complainant occupied a GS-13 position at the time of his non-selection, and being selected for
the position at issue would be a lateral transfer with no difference in pay and benefits.
Further, the Agency found that Complainant failed to establish his entitlement to pecuniary or
future pecuniary damages. Finally, the Agency determined that Complainant was entitled to
$25,000 in non-pecuniary damages and $50,715 in attorney’s fees.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency failed to offer him a GS-13 Supervisory
Detention and Deportation Officer position in violation of the Commission’s order.
Complainant claims that the Agency has refused to provide the training and discipline ordered.
Further, Complainant disputes the Agency’s determination that he is not entitled to any back
pay other than the amount of wages with interest he lost as a result of the 10-day suspension.
Complainant argues that the Agency failed to take into consideration its continued wrongful
actions in support of his compensatory damages claim. Complainant asserts that he requested
the following: pecuniary damages, non-pecuniary damages, future pecuniary damages, and
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future lost earnings. Complainant believes that he is entitled to reimbursement for $100,000
for moving expenses, $19,200 for medical expenses, and an additional $5,000 in attorney’s
fees. Complainant argues that he is entitled to $250,000 in non-pecuniary damages and
$63,380 in future pecuniary damages. Finally, Complainant contends that he should be
awarded $1,045,151.20 in future lost earnings and that the Commission should sanction the
Agency for its non-compliance.

In response, the Agency argues that it has complied with the Commission’s order. The
Agency contends that it conducted a supplemental investigation; determined that Complainant
was entitled to $25,000 in compensatory damages; expunged the AWOL charge, letter of
proposed 14-day suspension, and the 10-day suspension; restored any leave deducted from
Complainant’s leave balance and compensated him for lost wages and benefits attributable to
the AWOL charge and suspension; provided training for the responsible management officials;
and considered disciplinary action. Further, the Agency argues that Complainant is not
entitled to front pay or additional compensatory damages. The Agency notes that many of
Complainant’s arguments are related to his subsequent termination which the Commission
found was not discriminatory. Accordingly, the Agency requests that the Commission find
that it is in compliance with the Commission’s order.

ANALYSIS AND FINDINGS

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 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, 527 U.S. 212 (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).

Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional
standing, injury to character and reputation, injury to credit standing, and loss of health. See
EEOC Notice No. 915.302 at 10 (July 14, 1992). There is no precise formula for determining
the amount of damages for non-pecuniary losses except that the award should reflect the nature
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and severity of the harm and the duration or expected duration of the harm. See Loving v.
Dep’t of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes
that non-pecuniary compensatory damages are designed to remedy the harm caused by the
discriminatory event rather than punish the Agency for the discriminatory action.
Furthermore, compensatory damages should not be motivated by passion or prejudice or
“monstrously excessive” standing alone but should be consistent with the amounts awarded in
similar cases. See Ward-Jenkins v. Dep’t of the Interior, EEOC Appeal No. 01961483 (Mar.
4, 1999).

Following a supplemental investigation, the Agency awarded Complainant $25,000 for his
emotional pain and suffering, mental anguish, and loss of enjoyment of life he suffered as a
result of the Agency’s retaliatory actions. On appeal, Complainant contends that he is entitled
to $250,000 due to his severe emotional distress which was a direct result of the Agency’s
pervasive and systemic retaliation against him. Complainant claims that his life changed
dramatically as a result of the Agency’s reprisal and that he suffers from anxiety, depression,
and anger.

Based upon a review of the record, the Commission finds that $25,000 is an appropriate award
based upon the circumstances present. The Commission has awarded $25,000 in non-
pecuniary compensatory damages in cases somewhat similar to Complainant's case in terms of
the harm sustained. See Margaret L. v. Dep’t of Housing and Urban Dev., EEOC Appeal
No. 0120150433, 0120160089 (June 2, 2016) ($25,000 awarded to Complainant where she
suffered exacerbation of medical conditions, withdrawal from social events, and loss of
enjoyment of life due to Agency’s retaliation); Pachecano v. U.S. Postal Serv., Appeal No.
01A32170 (May 20, 2004) ($25,000 awarded to Complainant when he was not selected for a
position and he experienced depression and an aggravation of his pre-existing Post Traumatic
Stress Disorder); Baker v. Dep't. of Veterans Affairs, EEOC Appeal No. 07A30075 (Aug. 7,
2003) ($25,000 awarded to Complainant when she was not selected for a position and she
experienced depression, anger, difficulty in sleeping and aggravation of her hypertension).
Therefore, based on the evidence provided by Complainant, the Commission finds that he is
entitled to $25,000 in non-pecuniary damages.

The Commission finds that this amount takes into account the severity of the harm suffered,
and is consistent with prior Commission precedent. Finally, the Commission finds 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 Jackson v. U.S. Postal Serv.,
EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d
827, 848 (7th Cir. 1989)).

Complainant also sought pecuniary damages. Pecuniary losses are out-of-pocket expenses that
are incurred as a result of the employer's unlawful action. Typically these damages include
reimbursement for medical expenses, job-hunting expenses, moving expenses, and other
quantifiable out-of-pocket expenses. Enforcement Guidance at 14. Past pecuniary losses are
losses incurred prior to the resolution of a complaint through a finding of discrimination, the
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issuance of a full-relief offer, or a voluntary settlement. Id. at 8-9. Future pecuniary losses are
losses that are likely to occur after resolution of a complaint. Id. at 9. For claims seeking
pecuniary damages, such objective evidence should include documentation of out-of-pocket
expenses for all actual costs and an explanation of the expense, e.g., medical and psychological
billings, other costs associated with the injury caused by the agency's actions, and an
explanation for the expenditure. Id. at 9.

Complainant sought $100,000 for moving expenses, $19,200 in medical bills and $65,380 in
future medical care/counseling. The Agency rejected Complainant’s claim for these expenses.
With regard to the moving expenses, the Agency noted that Complainant explained that
following his “unlawful termination,” he had to move because his reputation was ruined and he
could not find employment in South Florida. Complainant’s termination from the Agency was
not at issue in the present case, and the Commission found in a separate case that
Complainant’s termination was not based on discrimination. Thus, the Commission agrees
with the Agency that Complainant failed to show that he incurred these moving expenses as a
result of the Agency’s retaliatory actions.

As to the medical expenses, Complainant claims that he has been under intense psychiatric care
and evaluation since 2008. Complainant failed to provide any receipts or sufficient
documentation in support of his claim for these expenses. Further, Complainant indicated that
the record contained a declaration from his doctor; however, there is no evidence of the
statement. As a result, the Commission agrees with the Agency that Complainant has not
established an entitlement to pecuniary damages as requested.

Offer of Position and Back Pay with Interest

Complainant contends that the Agency failed to comply with the Commission’s order to offer
him the Supervisory Detention and Deportation Officer position. The Agency asserts that it is
unable to offer Complainant the position as his employment with the Agency was terminated in
February 2008. In EEOC Appeal No. 0520120099, the Commission modified its order to
acknowledge that Complainant had been removed and ordered the Agency to determine the
appropriate amount in back pay from the date the selectee assumed the position at issue until
the date of Complainant’s removal. The Agency found that Complainant’s pay would not have
changed had he been selected because the position he encumbered and the position at issue
were both at the GS-13 level. As a result, the Agency found that Complainant was only
entitled to back pay for the 10-day suspension. The Commission agrees with the Agency.
Complainant was already a GS-13 Supervisory Detention and Deportation Officer, and the
record evidence shows that the position at issue was simply a lateral transfer. Complainant has
presented no evidence that he would have received any additional pay in the position at issue.
Accordingly, Complainant is not entitled to any additional back pay aside from the restoration
of lost wages as a result of the 10-day suspension.

In addition, Complainant requested $1,045,151.20 in front pay. The Commission agrees with
the Agency that Complainant has not shown that he is entitled to front pay, and, furthermore,
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the prior Commission decision made no such award. Finally, the Commission notes that it
reviewed Complainant’s request for sanctions against the Agency; however, the Commission
finds no basis to impose sanctions in this instance.

Attorney’s Fees

The Commission's regulations authorize the award of reasonable attorney's fees and costs to a
prevailing complainant. 29 C.F.R. § 1614.501(e); see also EEOC's Management Directive
110 (MD-110) (Nov. 9, 1999) Chapter 11. Fee awards are typically calculated by multiplying
the number of hours reasonably expended times a reasonable hourly rate, an amount also
known as a lodestar. See 29 C.F.R. § 1614.501(e)(2)(ii)(B); Hensley v. Eckerhart, 461 U.S.
424 (1983).

An application for attorney's fees must include a verified statement of attorney's fees
accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges
for legal services. EEO MD-110 at 11-9. While the attorney is not required to record in great
detail the manner in which each minute of his time was expended, the attorney does have the
burden of identifying the subject matters on which he spent his time by submitting sufficiently
detailed and contemporaneous time records to ensure that the time spent was accurately
recorded. See Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6,
2003). 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).

The Agency awarded Complainant $50,715 in attorney’s fees. On appeal, Complainant
appears to be requesting an additional $5,000 in attorney’s fees. Complainant submitted a
copy of a check that he claims he gave his attorney and an affidavit from his attorney stating
that money was an initial payment for services on January 28, 2009. The Commission finds
that there is insufficient evidence to support reimbursement for this amount. The record is
devoid of any documentation (e.g. a retainer agreement, an invoice, a receipt) to support this
claimed amount. Further, Complainant’s attorney’s fee petition submitted during the
supplemental investigation is silent as to any initial payment in January 2009. As Complainant
has presented insufficient evidence to support his request for the additional $5,000, the
Commission affirms the Agency’s award of $50,715 in attorney's fees.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision and the relief ordered. Therefore, the Commission REMANDS
the matter to the Agency for further processing consistent with this decision and the ORDER
set forth below.

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ORDER

To the extent that it has not already done so, the Agency is ORDERED to take the following
remedial actions within 60 calendar days of the date this decision becomes final:

1. The Agency shall pay Complainant $25,000 in compensatory damages.

2. The Agency shall pay Complainant $50,715 in attorney’s fees.

3. The Agency shall expunge the AWOL charge, letter of proposed 14-day suspension, and
10-day suspension from all records.

4. The Agency shall restore to Complainant any leave deducted from his leave balance
attributable to the AWOL charge and suspension, and compensate him for any lost wages
and benefits suffered during the suspension period.

5. The Agency shall provide at least 16 hours of EEO training to all management officials in
its Miami facilities regarding their responsibilities to ensure equal employment
opportunities and the elimination of discrimination in the federal workplace. The training
shall place special emphasis on preventing and eliminating retaliation. The Commission
does not consider training to be disciplinary action.

6. The Agency shall consider taking appropriate disciplinary action against all responsible
management officials in this case and 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 not doing so with specificity.

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 and evidence that the corrective action has been implemented.

POSTING ORDER (G0914)

The Agency is ordered to post at its Miami, Florida facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall
be posted both in hard copy and electronic format by the Agency within 30 calendar days of
the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period.

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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 (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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.
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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 (R0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

June 30, 2016
Date