[Redacted], Charlotte B., 1 Complainant,v.Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020003225 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlotte B.,1 Complainant, v. Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2020003225 Agency No. FDICEO-16-018 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 February 28, 2020 final decision concerning her equal employment opportunity (EEO) complaint alleging 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Training Technician, CG-7 at the Agency’s Corporate University in Arlington, Virginia. On April 21, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (unspecified mental), and reprisal (prior protected EEO activity) when: 1. Complainant was subjected to sexual harassment between January 2012 and her resignation from the Agency on April 1, 2016, 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. 2020003225 2 2. (a) Between March 2015 and April 1, 2016, she was denied a reasonable accommodation, (b) In September 2015, her supervisor disclosed and distributed details about her medical condition to managers and employees without her permission, and (c) On December 8, 2015, management removed her duties that were more conducive to telework and assigned her responsibilities that required her to be in the office more frequently; 3. From March 2015 through April 1, 2016, she was subjected to a hostile work environment; 4. Between November 25 and December 21, 2015, she was retaliated against for requesting a reasonable accommodation and complaining about harassment; and 5. On April 1, 2016, she was constructively discharged by being forced to resign because of ongoing disparate treatment and being subjected to a hostile work environment. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing but on December 14, 2018, withdrew her request. On December 17, 2018, in accordance with Complainant’s request, the Administrative Judge assigned to the case dismissed her hearing request and remanded the matter to the Agency for a final decision. On February 12, 2019, the Agency issued its final decision finding discrimination only with respect to incident 2(b). The Agency determined that it had violated the Rehabilitation Act when a management official disclosed details regarding Complainant’s medical condition to an individual who did not have a valid need to know. The Agency ordered a supplemental investigation into Complainant’s entitlement to relief for the unlawful confidential medical disclosure. The Agency sent letters to Complainant on April 3 and May 7, 2019, requesting information regarding proof of compensatory damages. Complainant, through her then-attorney, submitted responses on September 10, 2019 and October 23, 2019. She did not appeal the February 12, 2019 final decision. In the letter dated September 10, 2019, Complainant’s attorney stated: Regarding claim 2(b), the agency should undertake to pay for expenses reasonably related to this finding. *** [T]he disclosure of records has [a] serious impact on the Complainant’s work environment. Additionally, the Complainant 2020003225 3 has occurred expenses relating to *** mental health counseling [and] attorney’s fees paid as a direct result of the breach of privacy. In a follow-up statement dated October 20, 2019, Complainant identified what she characterized as various tangible and intangible losses, including repossession of her car, mortgage foreclosure, relocation expenses, financial strain, lowered credit score, worsening anxiety and paranoia over fear of being stalked, and inability to “emotionally maintain employment.” On February 28, 2020, the Agency issued its final decision with respect to the relief to be awarded. In this decision, the Agency reported that on October 14, 2015, approximately a month after the unauthorized disclosure had taken place, Complainant had an anxiety attack for which she was hospitalized the following day. Final Agency Decision (Feb. 28, 2020), p. 6. The Agency further noted that Complainant was hospitalized again on January 11, 2016 and had resigned on April 1, 2016, without returning to work on-site. Final Agency Decision (Feb. 28, 2020), p. 7. After finding that most of the information Complainant had submitted in response to its request for proof of damages pertained to the issues upon which discrimination was not found, the Agency awarded Complainant $3,000 in nonpecuniary compensatory damages. The Agency also found that, with regard to the question of attorney’s fees, none of Complainant’s submissions included information pertaining to her attorney’s hourly rate, billable hours, dates of legal services performed, or detailed time records. The Agency ultimately concluded that Complainant was not entitled to attorney’s fees. There is nothing in the record documenting when Complainant received the February 2020 final decision on remedies. In what appears to be a letter dated March 2020 and addressed to her attorney in which she attempts to document her damages, Complainant stated: This whole ordeal over the past six years and everything that I lost and having to start over caused me and my family so much stress. I suffered weight loss going from 140 lbs. to 115 lbs. I was forced to dismiss the EEOC hearing in 2019 due to a tumor which developed from all of the stress my body was experiencing. I had a promising future and career. *** but because of [the Agency’s] misconduct my life was ruined, my reputation, my confidence, and my sense of security *** were severed. Complainant’s notice of appeal is dated May 1, 2020. In the box marked “attorney name,” Complainant wrote “none.” On May 5, 2020, Complainant submitted an undated statement from her mother describing the emotional strain Complainant was under before and after she had resigned from the Agency. She also submitted her answers to interrogatories dated October 10, 2018, none of which addressed the issue of harm or loss attributed to the unauthorized disclosure of her medical information in September 2015. Third, she submitted what appears to be a treatment report from a naturopathic practitioner dated November 6, 2017, which provides no information linking her course of treatment with the disclosure. 2020003225 4 Fourth, Complainant’s submission contains a 20-page worksheet which appears to document statements, rebuttals, supporting documentation, and attorney notes pertaining to various witnesses. There does not appear to be any information in this document pertaining to harm that Complainant had suffered as a result of the unauthorized disclosure. Complainant did not submit a brief or statement in support of her appeal. ANALYSIS AND FINDINGS Standard of Review 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”). Attorneys’ Fees The record does not include any of the information set forth in 29 C.F.R. §1614.501(e) that would support an attorney’s fee award. In addition, Complainant did not raise the issue of attorney’s fees on appeal; therefore, we find no basis to disturb the Agency’s decision to not award Complainant attorney’s fees. Marcelina Q. v. Dep’t of the Treasury, EEOC Appeal No. 0120160430 (Nov. 28, 2017), req. for recon. den. EEOC Request No. 0520180165 (Apr. 5, 2018). Nonpecuniary Compensatory Damages Nonpecuniary 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 Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A.2 (July 14, 1992) (Compensatory Damages Guidance). There is no precise formula for determining the amount of damages for nonpecuniary losses except that the award should reflect the nature 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 nonpecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. 2020003225 5 Further, compensatory damages should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and 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) citing Cyngar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Where a Complainant’s emotional harm is due in part to personal difficulties, which were not caused or exacerbated by the discriminatory conduct, the Agency is liable only for the harm resulting from the discriminatory conduct. See Compensatory Damages Guidance, at II, A.2. Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) citing Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Objective evidence of compensatory damages can include statements from a complainant concerning his 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. Id. 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. Id. A complainant’s own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Id. 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. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. We have examined a number of prior cases in which the Commission awarded $5,000 in nonpecuniary compensatory damages and have found these decisions to be an appropriate comparison. For example, in Karin C. v. Dep’t of Agriculture, EEOC Appeal No. 2019000821 (Feb. 21, 2020), a case similar to the one now before us, the agency awarded the complainant $3,000 pursuant to a finding of reprisal in which a management official disclosed that the complainant had filed an EEO complaint. On appeal, the Commission found that the complainant presented minimal evidence of her emotional distress caused by the discrimination that would support the requested nonpecuniary damages. The complainant stated that as a result of the incident, she suffered from anxiety, increased stomach issues, weight gain, hair loss, and poor sleep. Based upon her statement, the Commission found that $5,000 was an appropriate amount of nonpecuniary damages because although the majority of the complainant’s stress was attributable to other factors, she had presented evidence to establish that the agency’s actions caused at least some of her emotional distress and related symptoms. 2020003225 6 In Kyong L. v. U.S. Postal Serv., EEOC Appeal No. 0120170623 (Feb. 21. 2019), the agency awarded the complainant $5,000 in nonpecuniary compensatory damages pursuant to a decision and order from the Commission finding discrimination in connection with multiple denials of light duty requests. The agency noted that the complainant did not provide medical documentation showing that her symptoms were related to the agency’s discriminatory denials of her light duty request, and that the affidavit she had submitted in support of her requests for damages indicated that her stress was pre-existing. The agency also noted that in her affidavit, the complainant mentioned that she suffered headaches, stomach pains, sleeping problems and weight gain but did not indicate that her family relationships were affected. The Commission upheld the agency’s award, finding that the complainant had adequately shown that she had suffered anxiety, depression, headaches, stomach pains, sleeping problems, and weight gain. Finally, in Marcelina Q. v. Dep’t of the Treasury, supra, the agency awarded the complainant $2,000 in nonpecuniary compensatory damages pursuant to its finding that it had retaliated against the complainant by issuing her a memorandum of counseling. The complainant averred that as a result of being issued the counseling memo, she had suffered from depression, severe migraines, and trouble sleeping, as well as becoming withdrawn from her family, and an exacerbation of physical symptoms. Complainant’s mother, brother, and coworkers submitted statements corroborating her claims that she had suffered from depression and emotional issues due to the discrimination. On the basis of this evidentiary record. the Commission increased the size of the award to $5,000. In the instant case, Complainant’s documentation of the harm she had suffered that could be directly attributable to the unauthorized disclosure of her medical information was minimal. In particular, we note that Complainant submitted no medical evidence and the statement from her mother seemed to address her entire ordeal, rather than the specific violation of the Rehabilitation Act. Nevertheless, as in Karin C., we find that at least some of Complainant’s stress and anxiety was caused by the unauthorized disclosure. Accordingly, as in Karin C., Kyong L., and Marcelina Q., we find that an award for nonpecuniary damages in the amount of $5,000 is appropriate. In addition to compensatory damages, the order for relief set forth in the Agency’s February 28, 2020 final decision required that the Agency provide training to the management official responsible for the unauthorized disclosure of Complainant’s medical information, to consider taking disciplinary action against that individual, and to post notice of the violation at the facility where it occurred. We will enter an order directing the Agency to provide documentation that it had completed those elements of its order. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we MODIFY the Agency’s final decision dated February 28, 2020. 2020003225 7 ORDER (C0618) To the extent it has not already done so, the Agency shall take the following remedial action: 1. Within 30 calendar days of the date this decision is issued, the Agency shall pay Complainant $5,000 in nonpecuniary compensatory damages. 2. Within 60 calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive EEO training to the management official identified as Complainant’s former supervisor if that individual is still employed by the Agency. The training shall focus on the laws, regulations, and policies governing confidentiality of medical information, and shall include a discussion of the circumstances under which such information shall and shall not be disclosed. 3. Within 60 calendar days of the date this decision is issued, the Agency shall consider disciplining the management official identified as Complainant’s former supervisor. The Commission does not consider training to be a 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 to impose discipline. 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 supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Virginia Square Buildings in Arlington, Virginia 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020003225 8 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2020003225 9 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2020003225 10 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 3, 2021 Date