Pasquale D.v.Dep't of Homeland Sec.

Equal Employment Opportunity Commission

Apr 12, 2018

EEOC Appeal No. 0120160892 (E.E.O.C. Apr. 12, 2018)

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

Pasquale D.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120160892

Agency No. HS-10-ICE-00443

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 8, 2015, final
decision concerning the compensatory damages awarded following a finding that the Agency
subjected him to unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons,
the Commission MODIFIES the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Immigration Enforcement Agent, GA-1801-11 at the Agency’s facility in Burlington,
Massachusetts. On December 10, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of his race (African-American) when on
September 8, September 28, and October 5, 2009, management failed to select him for the
position of Deportation Officer, GS-12, as advertised under vacancy announcement number
LAG-DRO-265002-LLP-165.

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

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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Opportunity Commission Administrative Judge. In accordance with Complainant’s request, the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged. In
Appeal No. 0120112237 (July 25, 2014), the Commission reversed the Agency’s final decision
and found that Complainant established that he was subjected to discrimination. Specifically, we
found that Complainant established that the Agency’s articulated reasons for not selecting him
for the positions at issue were a pretext for unlawful race discrimination. By way of remedies, we
ordered the Agency, in part, to conduct a supplemental investigation into Complainant’s
entitlement to compensatory damages.2

The Agency subsequently issued a decision on December 8, 2015, awarding Complainant
$30,000 in nonpecuniary, compensatory damages.3 With respect to pecuniary damages, the
Agency found that Complainant failed to show that the losses alleged were caused by its
discriminatory actions. On appeal, Complainant requests that the Commission award him
$200,000 in nonpecuniary, compensatory damages for the harm and potential loss of income he
suffered as a result of the Agency’s discriminatory actions. As to pecuniary damages,
Complainant contends that the Agency’s actions caused him to become negligent with his
finances and led to his selling both his primary and rental properties. Complainant requests
$70,324.38 in pecuniary damages to cover the debt owed after the sale of those homes.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

In a claim for compensatory damages, a complainant must demonstrate, through appropriate
evidence and documentation, the harm suffered as a result of the Agency's discriminatory action;
the extent, nature, and severity of the harm suffered; and the duration or expected duration of the
harm. Complainant v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22, 1994);
Complainant v. Dep't of Agriculture, EEOC Appeal No, 01945652 (July 17, 1995). Objective
evidence in support of a claim for nonpecuniary damages claims includes statements from the

2 The Agency’s request for reconsideration was denied in EEOC Request No. 0520140537
(March 13, 2015).
3 The Agency’s decision also states that Complainant is not entitled to attorney’s fees as he did
not request them. Complainant does not raise this issue on appeal, therefore we shall not address
this issue further herein.
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complainant and others, including family members, coworkers, and medical professionals. See
Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. N915.002 (July 14, 1992) (hereafter referred to as “Notice”);
Complainant v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Nonpecuniary damages must be limited to compensation for the actual harm suffered as a result
of the Agency's discriminatory actions. See Carter v, Duncan-Higgans, Ltd., 727 F.2d 1225
(D.C. Cir. 1994); Notice at 13. A proper award should take into account the severity of the harm
and the length of time that the injured party suffered the harm. Additionally, the amount of the
award should not be “monstrously excessive” standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded in similar cases. See
Complainant v. United States Postal Service, EEOC Appeal No. 01972555 (April 15, 1999),
(citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Finally, we note that in
determining nonpecuniary, compensatory damages, the Commission has also taken into
consideration the nature of the Agency's discriminatory actions. See Utt v. United States Postal
Service, EEOC Appeal No. 0720070001 (March 26, 2009); Brown-Fleming v. Dep't of Justice,
EEOC Appeal No. 0120082667 (October 28, 2010).

Here, the record reflects that Complainant suffered both emotional and physical distress as a
result of the Agency’s actions. Specifically, the statements provided by Complainant show that
he experienced anxiety attacks, mood swings, nightmares, insomnia, difficulty concentrating,
loss of self-esteem, alcohol dependency, weight gain, paranoia, and diminishment of self-worth.
He also experienced an exacerbation of his pre-existing conditions such as hypertension and
severe back pain. As such, we conclude that an award of $60,000 in nonpecuniary, compensatory
damages more appropriately compensates Complainant for the harm caused by the Agency. We
find this amount is more consistent with the amount awarded in similar cases. See Complainant
v. Department of Transportation, EEOC Appeal No. 0720140022 (Sept. 16, 2015) ($60,000
awarded where Complainant suffered sleeplessness, anxiety, stress, and depression, as well as an
exacerbation of her existing symptoms, as a result of the Agency’s discriminatory actions); Lula
N. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120113346 (March 21. 2014) ($65,000 in
nonpecuniary damages where complainant acknowledged that she experienced health problems
prior to the discrimination, but provided documentation indicating that her health worsened due
to discrimination. Complainant experienced anxiousness, depression, crying, headaches,
insomnia, and high blood pressure); Nia G. v. Dep't of Justice, EEOC Appeal No. 0120123467
(April 3. 2015) ($50,000 in nonpecuniary damages where Complainant testified that she suffered
stress, shock and humiliation, which manifested itself in absences from work, headaches, rashes,
weight fluctuations, depression, anxiety, insomnia, and nightmares); Complainant v. Social
Security Admin., EEOC Appeal No. 0720130013 (Aug. 14, 2014) (Complainant awarded
$60,000 where Agency’s discrimination resulted in exacerbation of post-traumatic stress
disorder, depression, stress, and elevated blood pressure).

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We find this amount takes into account the severity of the harm suffered, and is consistent with
prior Commission precedent. Finally, we find 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.

Next, with respect to Complainant’s request for pecuniary damages, pecuniary losses are out-of-
pocket expenses incurred due to an employer’s unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other
quantifiable out-of-pocket expenses. Past pecuniary losses are the pecuniary losses that are
incurred prior to the resolution of a complaint. The Commission, however, requires
documentation in support of these expenses, typically in the form of receipts, bills, or physician’s
statements. See Complainant v. United States Postal Service, EEOC Appeal No. 01981955
(October 3, 2000); Complainant v. Social Security Administration, EEOC Appeal No. 01972427
(March 8, 2000). We agree with the Agency’s decision to not award pecuniary damages in the
instant matter. Although Complainant contends that the Agency’s actions caused him to become
financially irresponsible, we find that Complainant has not established a causal connection
between the pecuniary damages requested and the Agency’s discriminatory actions.

CONCLUSION

We MODIFY the Agency’s final decision. The Agency is directed to comply with the ORDER
herein.

ORDER

Within 60 days from the date this decision is issued, to the extent that the Agency has not yet
done so, the Agency shall pay Complainant $60,000.00 in nonpecuniary, compensatory damages.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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).
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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 (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).
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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

April 12, 2018
Date