U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eleanore M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2020001608 Hearing Nos. 570-2017-01344X; 570-2019-00445X Agency Nos. HS-FEMA-24469-2015; HS-FEMA-2683-62016 DECISION On December 6, 2019, 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 November 12, 2019 final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order and REMANDS for the remedial relief. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Emergency Management Specialist, GS-0089-13, in the Agency’s Recovery Directorate in the Public Assistance (PA) Division at the Agency’s facility in Washington, D.C. On September 22, 2015, Complainant filed an EEO complaint (Agency No. HS-FEMA-24469- 2015) alleging that the Agency discriminated against her on the basis of sex (female) when: 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. 2020001608 2 1. On July 9, 2015, she was put in for a promotion and it was approved, but she never received the accretion of duties promotion, while a male colleague received a promotion. On September 27, 2016, Complainant filed a second formal complaint (Agency No. HS-FEMA- 2683-62016) alleging that the Agency discriminated against her on the bases of her sex (female) and in reprisal for prior protected EEO activity when: a) In July 2015, the Agency reassigned one of Complainant’s team members, resulting in increased duties for Complainant; b) On January 2016, the Agency dismantled the Executive Communications Office; c) Between July 2015 and January 2016, the Agency denied Complainant’s request to hire additional staff; d) From December 2015 to July 2016, the Agency removed some of Complainant’s job duties; e) On May 31, 2018, Complainant was removed as the Lead Strategist on the State Management Implementation Project for Public Assistance; f) On July 12, 2018, Complainant was replaced as the PA Division Subject Matter Expert; g) The Agency did not acknowledge, or grant, Complainant’s request for Special Acts Awards; and h) The Agency did not timely provide Complainant with her performance plan for 2018. In or around July 2014, Complainant’s supervisor selected her to lead a new unit in the PA Division called the Executive Communications Office (ECO). Report of Investigation (ROI), p. 68, 92, 97). After the Agency assigned Complainant additional duties, she sought an accretion of duties promotion, that was associated with her role in establishing the ECO. Sometime thereafter, her supervisor submitted a request to promote Complainant from a GS-13 to a GS-14, due to an accretion of duties to reflect her new role and duties in ECO. ROI, 64-65, 73, 79, 92 and 97. Although Complainant’s duties increased, she was never promoted. ROI, p.68. Complainant claimed that she was treated differently than a similarly situated male coworker, who had been promoted to a GS-14 position the previous year, through the merit promotion process. ROI 81, 87, 97. The male employee had more experience and greater tenure than Complainant. On January 24, 2016, Complainant provided her two supervisors (male, no identified EEO activity) with an account of the events that she believed to be discriminatory and retaliatory. Within days of that notification, Complainant learned the ECO, that she helped to set up, was to be dismantled. In February 2016, some of her substantive work duties were removed. On May 25, 2016, Complainant learned that she would not be working on developing a new project, as she expected. 2020001608 3 Complainant made EEO contact on July 11, 2016, regarding her second complaint. Shortly thereafter, her supervisor reassigned one of her team members, which left her office short- staffed. Complainant submitted a request for an increase in staffing, but her requests were ignored or never acknowledged. After filing her formal complaint, Complainant was notified that her job duties were being reassigned. She also later learned that she would no longer be working on communications for the PA Division and she was not allowed to hire staff. In addition, she averred that the Agency failed to provide her with performance plan for 2018. The Agency did not begin the investigation of Complaint 1 until February 10, 2017. ROI p. 47. The record shows that it took the Agency at least 499 days to assign an investigator for Complaint 1. On March 27, 2017, the Agency concluded its investigation, more than a year after the required 180-day regulatory deadline had passed. At the conclusion of the 42-day investigation of Complaint 1, the Agency failed to provide Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). After Complainant filed her second formal complaint, the Agency did not investigate Complaint 2 or provide Complainant with a Letter of Acceptance, Notice of Dismissal, or any report of investigation. On August 3, 2017, Complainant requested a hearing on her complaints, because 180 days had elapsed, and the investigations had not been completed. The AJ assigned to the matter consolidated the complaints and permitted Complainant to amend her complaints to add new claims. Complainant moved for a default judgment against the Agency due to the “pattern of inaction” and delay in processing her complaints. No timely response was submitted by the Agency. The AJ subsequently granted Complainant’s motion for sanctions in the form of a default judgment. On September 30, 2019, the AJ issued a final decision on liability. In the AJ’s decision, the AJ determined that Complainant had not established a prima facie case of discrimination as to claims (1) and (e) - (h). The AJ found that Complainant had established a prima facie case of reprisal as to claims (a) - (d) and therefore was entitled to relief. The AJ found Complainant’s statement was sufficient to establish she experienced some harm and mental anguish over the approximate one-year period that her duties were reassigned or removed. After considering the severity, duration and extent to which the Agency directly caused the harm rendered her, the AJ awarded $8,000 in non-compensatory damages. The AJ also awarded Complainant attorney’s fees and costs in the amount of $21,339.70. In addition, she ordered the Agency to post a notice. The Agency subsequently issued a final order fully adopting the AJ’s decision and the relief ordered. Complainant filed the instant appeal. 2020001608 4 CONTENTIONS ON APPEAL On appeal, Complainant argues that the AJ limited her relief by improperly making credibility determinations and weighing disputed evidence which led to the finding that she failed to establish a prima facie case of discrimination with regard to the non-promotion claim. In addition, Complainant contends that she established a prima facie case of discrimination and reprisal regarding claims (e) - (h). Complainant claims that she is entitled to greater damages and attorney’s fees for her costs associated with this appeal. In response, the Agency argues that the AJ granted Complainant the default judgment she sought and cannot now argue that the record was deficient or inappropriate for the entry of the default judgment. The Agency asks that its final order, adopting the AJ’s decision and the relief ordered be affirmed. ANALYSIS AND FINDINGS After deciding to issue default judgment for a complainant, the Commission must exercise its authority to determine if there is evidence that establishes complainant's right to relief. One way to show a right to relief is to establish the elements of a prima facie case. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); see also Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n. 13. (1973). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that the AJ erred with regard to the finding that Complainant did not establish a prima facie case with regard to claims (1) and (e) - (h). The Commission has long held that the AJ has discretion to look at the evidence and even to have a hearing regarding the evidence when determining a Complainant's right to relief. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); see also Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005). In the instant case, the AJ found that Complainant did not establish a prima facie case of discrimination or reprisal as to claims (1) and (e) - (h) because she did not show that that any other employees not of her protected bases were treated more favorable in claim (1) and she failed to demonstrate a causal connection between her prior EEO activity and the incidents alleged in claims (e) - (h). Accordingly, we find that the AJ correctly determined that Complainant was not entitled to relief as to those claims. 2020001608 5 We now turn to the relief ordered as to claims (2)(a) - (d). 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 nonpecuniary 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). 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 Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, 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 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. Furthermore, compensatory damages should not be motivated by passion or prejudice or be “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). 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 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 non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Here, the AJ awarded Complainant $8,000 in nonpecuniary compensatory damages, finding that Complainant established that she experienced emotional distress as a result of the Agency's actions. Complainant had stated that she felt depressed and humiliated following the public removal of her assignments and roles. Complainant further asserted that she experienced weight loss due to the depression, frequently cried, felt shame and embarrassment, and had difficulty sleeping. We find that the AJ's award is supported by the record evidence. 2020001608 6 We find that this award is not ““monstrously excessive” and consistent with prior Commission precedent. See Cortez J. v. Dep’t of Def., EEOC Appeal No. 0120182712 (Nov. 29, 2019) ($8,500 awarded where complainant experienced severe anxiety, headaches, stomachaches, stress-related neck pain, loss of appetite, loss of weight, marital strife and loss of reputation due to agency’s reprisal); Nicole T. v. Dep't of Def., EEOC Appeal No. 0120143019 (Jan. 11, 2017) (awarding complainant $8,000 when she was discriminatory sent home without pay and experienced chest pains, headaches, hair loss, lost sleep, loss of concentration, strained marriage, and bouts of crying); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720140025 (Sept. 28, 2015) (awarding $7,500 in non-pecuniary compensatory damages for depression, anxiety, chest pains, lack of concentration, crying spells, headaches, fatigue, sleeplessness, loss of appetite, loss of enjoyment of life, loss of trust in people, loss of interest in personal care, impaired relationships, heightened fear/paranoia, humiliation and embarrassment). CONCLUSION Accordingly, we AFFIRM the Agency's final order which fully adopted the AJ’s decision and the relief ordered. We REMAND this matter to the Agency to take the corrective actions, as slightly modified, in accordance with the following Order. ORDER (C0618) To the extent that it has not already done so, the Agency is ordered to take the following remedial action: 1. Within 60 days of the date of this decision is issued, the Agency shall pay Complainant $8,000.00 in non-pecuniary compensatory damages. 2. Within 90 days of the date of this decision is issued, the Agency shall pay Complainant $21,339.70 for attorney’s fees and costs. 3. Within 90 days of the date of this decision is issued, the Agency shall a provide minimum of eight hours of in-person or interactive EEO training to the Agency officials identified in this decision (Complainant’s first-level supervisor, her second-level supervisor, the Assistant Administrator for the Recovery Directorate, and the Deputy Assistant Administrator for the Recovery Directorate) if still employed, with a special emphasis on reprisal and the obligation not to restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings under, the Federal equal employment opportunity laws. 4. Within 90 days of the date of this decision is issued, the Agency shall consider taking appropriate disciplinary action against the named responsible management officials (Complainant’s first-level supervisor, her second-level supervisor, the Assistant Administrator for the Recovery Directorate, and the Deputy Assistant Administrator for the Recovery Directorate), if still employed by the Agency. 2020001608 7 The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer referenced herein. 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. If any of the responsible management officials have left the Agency’s employment, the Agency shall furnish documentation of their departure date(s). 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 Public Assistance Division, Federal Emergency Management Washington, D.C. 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 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). 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. 2020001608 8 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. 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. 2020001608 9 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 (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 August 3, 2021 Date
