Ralph B.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Apr 25, 2018

0120161451 (E.E.O.C. Apr. 25, 2018)

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

Ralph B.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120161451

Agency No. HS-CBP-01898-2011

DECISION

Complainant timely filed an appeal from an Agency’s final decision dated March 15, 2016,
concerning an award of compensatory damages and attorney’s fees which was awarded after a
finding of employment discrimination. For the following reasons, we AFFIRM the Agency’s
final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Border Patrol Agent, GS-1896-11, Office of Border Patrol, Big Bend Sector, Presidio Station,
in Presidio, Texas. On November 16, 2011, Complainant filed his complaint alleging
discrimination in reprisal for prior EEO activity when:

(1) On July 13, 2011, a coworker made an unfavorable comment to him;

(2) On August 1, 2011, someone (possibly a coworker) manually deflated a tire on his
personal vehicle;

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.
0120161451

2
(3) On September 13, 2011, he learned that he was the subject of an investigation regarding
non-criminal misconduct stemming from statements about a Supervisor, Border Patrol
Agent (SBPA2) that he made in his prior EEO complaint in November 2010;

(4) On November 2, 2011, management issued him a proposed one-day suspension letter for
damage to an Agency vehicle;

(5) On December 12, 2011, management intimidated and coerced a coworker, also Border
Patrol Agent, into falsely asserting in a memorandum the allegation that he, in his union
representative capacity, improperly advised the coworker to delay submitting his military
leave request; and

(6) In December 2011, he learned he was not selected for a temporary detail assignment to
the position of Lead Border Patrol Agent, assigned to the Big Bend Sector Intelligence
Center.

On February 20, 2013, the Agency issued its final decision finding no discrimination regarding
the complaint. Complainant appealed. The Commission, in EEOC Appeal No. 0120131595
(September 25, 2015) affirmed the Agency’s finding of no discrimination regarding claims (1),
(2), (4), and (5), but reversed its finding of no discrimination regarding claims (3) and (6).

Specifically, regarding claim (3), the Commission found that SBPA2 initiated the September 13,
2011 investigation claiming that Complainant exhibited “lack of candor” solely because
Complainant named SBPA2 as a responsible management official in a pending EEO complaint.
Regarding claim (6), the Commission found that the nonselection for a temporary detail
assignment in December 2011, was the direct and proximate result of SBPA2’s retaliatory
animus and the initiation of a lack of candor investigation.

As relief, the Commission ordered the Agency to take the following remedial actions within 120
days:

1. The Agency shall offer Complainant the opportunity to be temporarily assigned to the
position of Lead Border Patrol Agent at the Big Bend Sector Border Intelligence
Center (or other mutually agreeable location) for the same duration that the selectee
of the detail at issue remained in such position (SE). Complainant shall be given a
minimum of 30 calendar days from receipt of the offer within which to accept or
decline the offer. Failure to accept the offer within the time period set by the Agency
will be considered a rejection of the offer, unless Complainant can show that
circumstances beyond his control prevented a response within the time limit;

2. If applicable, the Agency shall determine and pay Complainant back pay (with
interest, if applicable) and other benefits due Complainant pursuant to 29 C.F.R.
1614.501. The Agency's determination shall be based on a comparison with those
benefits received by SE;
0120161451

3

3. The Agency shall remove any referral to the “lack of candor” investigation referenced
above which may exist in any form from Complainant’s official personnel file or any
other agency records;

4. The Agency shall conduct a supplemental investigation to determine the amount of
compensatory damages, if any, suffered by Complainant for being the subject of the
“lack of candor” investigation referenced above and/or for not being selected for the
detail to the position of Lead Border Patrol Agent on December 1, 2011. If there is a
dispute regarding the exact amount of compensatory damages, the Agency shall issue
a check to Complainant for the undisputed amount within sixty (60) calendar days
from the date the Agency determines the amount it believes to be due. 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;”

5. The Agency shall provide training to the Agency personnel responsible for the
reprisal, mainly, SBPA2, placing special emphasis on an employer’s obligation not to
take retaliatory action against an employee because of their opposition or
participation in protected activity, such as the memorandum from Complainant
alerting his superiors of alleged harassment and retaliation;

6. The Agency shall consider taking appropriate disciplinary action against the Agency
supervisors involved in the retaliation. The Commission does not consider training to
be disciplinary action. The Agency shall report its decision to the Compliance
Officer. If the Agency decides to take disciplinary action, it shall identify the action
taken. If the Agency decides not to take disciplinary action, it shall set forth the
reason(s) for its decision not impose discipline. If any of the responsible management
officials have left the Agency’s employ, the Agency shall furnish documentation of
their departure date(s); and

7. 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 verifying that all of the corrective action has been
implemented.

The Commission also ordered the Agency to award attorney’s fees and costs. On March 15,
2016, the Agency issued its decision on compensatory damages and attorney’s fees and costs
pursuant to the Commission’s order. The Agency stated that on November 19, 2015, it received
Complainant’s petition for attorney’s fees and on January 14, 2016, it received his request for
compensatory damages. The Agency stated that based on his submission, Complainant was
entitled to $10,000 in nonpecuniary, compensatory damages and $12,690 in attorney’s fees.
0120161451

4
Complainant appealed from this decision on compensatory damages and attorney’s fees, but did
not file a brief.

ANALYSIS AND FINDINGS

Initially, we note that the Agency’s final decision does not address the items set forth in the
Commission’s order in EEOC Appeal No. 0120131595 other than its awards of compensatory
damages and attorney’s fees. We also note that Complainant does not contest the Agency’s
noncompliance of the Commission’s order. Thus, we will not address such herein. 2 In this case,
we note that Complainant did not file an appeal brief and does not contest the Agency’s decision
awarding him $10,000 in nonpecuniary, compensatory damages and $12,690 in attorney’s fees.
Under the circumstance, we will address herein whether the Agency’s decision for such was
proper.

Compensatory Damages

The Commission notes that damage awards for emotional harm are difficult to determine and
that there are no definitive rules governing the amount to be awarded in given cases. A proper
award must meet two goals: that it not be "monstrously excessive" standing alone, and that it be
consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848
(7th Cir. 1989). Section 102(a) of the 1991 Civil Rights Act authorizes an award of
compensatory damages for past and future pecuniary losses, such as, out of pocket expenses, and
for nonpecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health.

To receive an award of compensatory damages, Complainant must demonstrate that he 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. Complainant v. Department of the
Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (December 8, 1995); EEOC’s Enforcement Guidance: Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. 915.002 at 11-12, 14 (July 14, 1992) (“Guidance”). Complainant is required to provide
objective evidence that will allow an agency to assess the merits of her request for damages. See
Complainant v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). The
award should take into account the severity and duration of the harm. Complainant v.
Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).

2 The Agency noted in its decision that the parties are working on Complainant’s back pay as
ordered by the Commission and the required compliance report will be submitted to the
Commission on this matter.
0120161451

5
Nonpecuniary Damages

In determining nonpecuniary, compensatory damages, the Commission strives to make damage
awards for emotional harm consistent with awards in similar cases. In this case, Complainant
did not request a specific amount in nonpecuniary damages. In his statement, Complainant
indicated that as a result of the Agency’s discriminatory actions, he suffered stress, anxiety,
depression, headaches, stomach distress, insomnia, sleeplessness, a weight gain, dependence on
sleeping aids, alcohol consumption, cigarette smoking, and emotional withdrawal from his wife,
family, and friends, and he feared that he might lose his job. We note that Complainant
submitted no medical evidence to support his conditions.

Complainant also submitted a “Vitals Report” which showed data from 2013-2015, concerning
his pulse, respiration, blood pressure, weight, and height. However, we note that the report is
devoid of any data related to the discriminatory incidents, i.e., concerning the September 13,
2011 investigation and the December 2011 detail assignment. Complainant submitted statements
from his coworkers, his sister, and his wife indicating that he suffered depression, was
withdrawn from his community, gained weight, and had marital strain in 2010, and 2011, since
he and his family moved to Texas from Connecticut, and started to work at the Agency in June
2009. In this regard, we agree with the Agency that Complainant is entitled to compensatory
damages only related to its discriminatory actions and not other incidents that were found not to
be discriminatory. The Agency noted that Complainant filed a prior EEO complaint which had
been pending at the time period at issue.3

After carefully considering all of Complainant’s statements described above, we find that an
award of $10,000 in nonpecuniary, compensatory damages is appropriate in this case. We note
that this amount meets the goals of not being motivated by passion of prejudice, not being
“monstrously excessive” standing alone, and being consistent with the amounts of awarded in
similar cases. We find that the weight of our prior decisions supports an award of $10,000 in the
instant case. See Fidelia F. v. Department of Agriculture, EEOC Appeal No. 0120150584 (April
1, 2017) ($7,500 in compensatory damages to complainant who developed migraines, suffered
from elevated blood pressure, and weight gain after not being promoted); Caneva v. Department
of Defense, EEOC Appeal No. 01A32890 (July 15, 2004) ($10,000 in compensatory damages
where complainant became depressed after his nonselection but presented no medical evidence);
McManaway v. United States Postal Service, EEOC Appeal No. 01993233 (August 23, 2002)
($10,000 in nonpecuniary, compensatory damages in nonselection case where complainant
experienced aggravation, frustration, humiliation, marital strain, and financial stress). On appeal,
Complainant does not specifically contest the $10,000 award for nonpecuniary, compensatory

3 Our records indicate that on August 26, 2010, Complainant filed his prior EEO complaint,
Agency No. HS-CBP-01456-2010, alleging harassment occurring from October 2009, through
September 2010; on July 13, 2011, the Agency issued its final decision finding no
discrimination. In EEOC Appeal No. 0120113866 (April 10, 2014), the Commission affirmed
the Agency’s final decision.
0120161451

6
damages. Based on the foregoing, we find that the Agency properly awarded Complainant
nonpecuniary, compensatory damages in the amount of $10,000.

Pecuniary Damages

Complainant submitted no evidence for any out-of-pocket expenses that were incurred as a result
of the Agency’s discriminatory actions. Complainant argued that that he was entitled to future
pecuniary losses to his base salary for his entire career in the amounts of $200,630 from 2012, to
2031 (his potential retirement at the age of 50). The Agency denied any payments for future
pecuniary losses. Complainant submits no argument on appeal about pecuniary losses. We find
Complainant’s arguments speculative and we find that the Agency properly denied Complainant
damages for requested future pecuniary losses.

Attorney’s Fees

In this case, we find that the Agency properly determined attorney’s fees in EEOC administrative
proceedings by multiplying a reasonable hourly fee and a reasonable number of hours expended.
29 C.F.R. § 1614.501(e)(2)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983). The Agency
stated that Complainant’s attorney submitted a “Time Listing” for work on this case and a
statement that he charged an hourly rate of $300. We note that the Agency does not dispute the
hourly rate of $300. The Agency indicated that the list of 49 entries submitted by the attorney
showed that from October 11, 2011, to September 25, 2015, the attorney worked 45.10 hours for
total of $13,530. The Agency stated that it then requested the attorney to clarify a total of 2.8
hours from five billing entries that were found to be not related to the instant case. The attorney
however failed to respond to the Agency request for clarification. Complainant does not dispute
this on appeal. Thus, the Agency indicated that attorney’s fees should be $12,690 for 42.30
hours with an hourly rate of $300. On appeal, Complainant does not specifically contest the
attorney’s fees award of $12,690. Based on the foregoing, we find that the Agency properly
determined Complainant is entitled to the attorney’s fees of $12,690.

Relief Paid

The record shows that the Agency has already paid Complainant $10,000 for nonpecuniary,
compensatory damages and $12,690 in attorney’s fees.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

0120161451

7
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).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

0120161451

8
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 25, 2018
Date