[Redacted], Lenard H., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Secret Service), Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020002347 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenard H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Secret Service), Agency. Appeal No. 2020002347 Agency No. HS-USSS-01072-2018 DECISION On February 19, 2020, Complainant prematurely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) on his equal employment opportunity (EEO) complaint alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Complainant complained that after he timely requested a final agency decision (FAD) on his complaint, the Agency did not issue one. However, on March 3, 2020, his pending appeal was perfected when the Agency issued a FAD on the merits of the complaint finding discrimination had been established and ordering various remedies, including determining appropriate compensatory damages and attorney fees. On June 29, 2020, the Agency issued its FAD on compensatory damages and attorney fees. Complainant, via Law Firm 2, appealed on August 4, 2020. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Polygraph Examining Investigator (Special Agent), GS-1801-13, at the Office of Investigations, Forensic Services Division, Polygraph Unit, in Washington, D.C. 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. 2020002347 2 On March 19, 2018, Complainant filed an EEO complaint alleging the Agency unlawfully retaliated against him for engaging in prior protected EEO activity under Title VII and the ADEA when, in early 2018, he was not considered or selected for reassignment to the position of Criminal Investigator (Special Agent), GS-1811-13, at the Office of Investigations, Forensic Services Division, Polygraph Branch, Headquarters Quality Control/Operations in Washington, D.C., under open vacancy number 18-2-32. After an EEO investigation, which was supplemented, Complainant requested a FAD without a hearing. In its March 3, 2020 FAD, the Agency found that management failed to articulate any reason for not awarding Complainant his bid for reassignment. The Agency’s FAD found that the sole decision-maker on Complainant’s bid for the position in question, who was retired, did not submit an EEO investigatory statement and no one in management had insight into his thinking. As such, the Agency’s FAD concluded that responsible management did not rebut Complainant’s prima facie case and, therefore, found unlawful retaliatory animus was established. As relief, the Agency ordered management to reassign Complainant to the position he sought, or a substantially equivalent one, give EEO training to Forensic Services Division managers focusing on reprisal, post a notice of the finding of discrimination, and directed that Complainant have an opportunity to submit evidence of compensatory damages and attorney fees, which the Agency would process. Complainant, without legal representation, submitted statements and documentation to support his claims for compensatory damages and attorney fees. In its June 29, 2020 FAD, the Agency awarded him $10,000 in nonpecuniary compensatory damages and denied all attorney fees. On appeal, Complainant argues that he should have been awarded the damages and attorney fees he previously requested when submitting his claims to the Agency. Specifically, he had listed 10 out-of-town work trips in four locations he purportedly lost by not being reassigned, and the combined amount of overtime pay and per diem he would have received for them broken down by in total by location (but not separating overtime pay and per diem). The overtime pay and per diem totaled $25,279.59. He claimed $5,000 in lost bonuses. Complainant characterized all this as pecuniary damages. He requested $107,175 in damages. Complainant asked for $5,429.83 in attorney fees he was billed by Law Firm 1, plus $17.04 in interest billed by it for past due balance. As evidence for his nonpecuniary damages claim, Complainant submitted declarations by a coworker and his spouse. In his April 4, 2020 declaration, the coworker stated that from 2018 to the present he witnessed management subject Complainant to retaliation by excluding him from the highly coveted collateral duties of Mentoring and Quality Control, deny him recognition as a Subject Matter Expert, give him lower ratings on his performance evaluations from 2018 to the present, have him investigated for an allegation of misconduct for which he was cleared, and not selecting him in February 2018 to the lateral position for which he bid. 2020002347 3 The coworker wrote that since the above retaliation began, while Complainant maintained his professionalism and strong work ethic, but his outgoing and upbeat spirit definitely seemed to diminish by a newfound cynicism. In her April 8, 2020 declaration, Complainant’s spouse stated that over the past two years she witnessed the devasting effects of her husband being subjected to a hostile work environment where he was disparately treated by his supervisors and compelled to defend his professional reputation. She stated that because he was not selected for reassignment in February 2018, her husband had difficulty sleeping, and became increasingly irritable and withdrawn, which alienated him from several close friends and family members and placed a burdensome strain on their marriage. In reply to Complainant’s appeal, Agency legal counsel argues that Complainant should not get any attorney fees and the award of $10,000 in pecuniary damages should not be increased, or in the alternative reduced. ANALYSIS AND FINDINGS As an initial matter, the parties do not contest the Agency’s finding of discrimination, and we see no reason to disturb it. The Agency’s finding of discrimination is affirmed. Back pay While Complainant characterizes lost overtime pay and bonuses as pecuniary damages, they are wage-based compensation and fall under back pay. In reply to Complainant’s appeal, the Agency argues that its FAD did not include an award of back pay, and Complainant’s appeal referenced, but did not challenge that implicit denial. We disagree. While he mischaracterized lost overtime pay and bonuses as pecuniary damages, Complainant on appeal challenged not receiving these things. There is insufficient information in the record for the Commission to determine back pay that may be due. This is addressed in the order below. However, Complainant is not entitled to pier diem for work trips he did not take. Pier diem is designed to cover the cost of a trip taken, and is not a form of compensation. Corazon P. v. Homeland Security (FEMA), EEOC Petition No. 0420150004 (Oct. 26, 2016) (per diem is not considered compensation under the Back Pay Act, 5 U.S.C. § 5596). Compensatory damages As applicable here, compensatory damages may be awarded for nonpecuniary losses that are directly or proximately caused by the agency’s discriminatory conduct. Nonpecuniary losses are intangible injuries not subject to precise quantification like emotional harm, suffering, loss of health, and injury to reputation. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (OLC Control No. EEOC-CVG- 1992-3; Jul. 14, 1992) (available at www.eeoc.gov). 2020002347 4 We decline to consider reducing the amount of pecuniary compensatory damages awarded by the Agency’s EEO function. We see no reason to accept an agency counsel’s challenge to the its EEO function’s considered judgment, which is vested with the authority to make these determinations, that a FAD’s award of pecuniary damages was too high. Here, the discrimination that was found was the Agency not selecting Complainant on February 2, 2018, per his January 12, 2018 bid for reassignment. Complainant’s coworker attributed Complainant’s injuries to a litany of alleged reprisals against Complainant over the last two years, only one of which was found to be discriminatory in this case - the bid matter. Complainant’s spouse attributed devastating effects to her husband over the past two years to being subjected to a hostile work environment where he was disparately treated by his supervisors and compelled to defend his professional reputation. The reference to reputation, more likely than not, regards Complainant being investigated for misconduct, something on which discrimination was not found in this case. And harassment more likely than not refers not only to the bid matter. But we agree with the FAD that to some extent Complainant’s emotional injury was caused by the bid matter in view of his spouse’s statement that it caused him sleeplessness, and to be increasingly irritable and withdrawn which alienated him from several close friends and family members and placed a burdensome strain on his marriage. Based on our review of the Commission’s caselaw, we find that Complainant is not entitled to damages in excess of $10,000. Resnick v. Homeland Security, EEOC Appeal No. 07A20040 (Oct. 30, 2003) (employee of the agency was subjected to reprisal discrimination when she was not competitively selected for promotion. AJ’s award of $50,000 in nonpecuniary damages reduced to $2,000 because Complainant did not show her injuries of depression, feeling worthless, sleeplessness, negative changes in personality, reduced self-esteem, moodiness, and becoming inward directed were caused by her non-selection as opposed to a myriad of other alleged discriminatory acts she and her witnesses cited as causes for her injuries. At best, Complainant showed she became upset and cried when she learned of her non-selection); Mica B. v. GSA, EEOC Appeal Nos. 2019000424 & 2019001054 (Aug. 12, 2020) (employee of the agency was subjected to disability discrimination when she was not selected for promotion, and related because of this she experienced a downward spiral into depression and mental illness based on the belief that she was unemployable due to her use of a wheelchair, her physical health declined (not detailed by her medical evidence), and she had bouts of crying at work, sleeplessness, and physical pain from her auto-immune disease. Awarded $10,000 in nonpecuniary damages). Attorney fees As applicable to this case, EEOC Regulation 29 C.F.R. § 1614.501(e)(1) states that reasonable attorney fees incurred for work on a Title VII case, and a finding of discrimination raises a presumption of entitlement to an award of fees paid by the agency. 2020002347 5 Attorney fees are allowable only for the services of members of the Bar and law clerks, paralegals or law students under the supervision of members of the Bar. Id., at 501(e)(1)(iii). Fees are only allowable for services performed after the written EEO complaint is filed and after the attorney gives reasonable notice of representation to the agency, administrative judge or Commission, except for reasonable time expended deciding to represent the complainant, and another limited exception not applicable to this case. The request for fees must be accompanied by an itemization of the charges for legal services. Id., at (2)(i). The amount of attorney's fees are calculated by using the starting point of the number of hours reasonably expended multiplied by a reasonable hourly rate. Id., at 2(B). In support of his attorney fee request, Complainant submitted an invoice by Law Firm 1 to him dated March 24, 2020, and a written receipt by Law Firm 1’s “Billing Supervisor” dated April 8, 2020, documenting his payments to it on April 5, 2018, May 25, 2018, and June 12, 2018. The invoice does not identify by whom it was drafted, nor does the paperwork he submitted confirm his case was worked on by an attorney who is a member of the Bar or people under the supervision of a member of the Bar. As found by the FAD, there is no way to calculate reasonable hourly fees or whether hours were reasonably expended without knowing what they were. The record does not show Law Firm 1 gave notice of its representation, actual or constructive. In fact, as argued by the Agency in its May 2020 and January 2021 replies to Complainant’s appeals, Complainant has not shown he was represented at any point by Law Firm 1. Specifically, he never submitted any paperwork prior to his request for attorney fees that he was represented by Law Firm 1, and the complaint file contains no communications by Law Firm 1. The receipt and invoice by Law Firm 1 identified the matter only as “[Complainant] v. D.H.S. (U.S. Secret Service)”, and did not indicate it was this case. In an appellate declaration, an EEO Specialist identified multiple other EEO cases by Complainant against the Agency. She added the EEO office Complainant used has no record of a communication from anyone in Law Firm 1 regarding this case. Counsel for the Agency represents in her appeal argument that she had no communication with Law Firm 1 pertaining to this case. Complainant’s request for attorney fees is denied. The Agency’s finding of reprisal discrimination is AFFIRMED. Its finding awarding Complainant $10,000 in nonpecuniary damages and denying all attorney fees by Law Firm 1 in this case is AFFIRMED. Its finding in effect to not process Complainant’s back pay claim is REVERSED. ORDER (D0617) The Agency is ordered to take the following remedial actions: 1. If it has not already done so, within 60 calendar days of the date of this decision, the Agency shall make an offer to Complainant for the position of Criminal Investigator (Special Agent), GS-1811-13, at the Office of Investigations, Forensic Services Division, Polygraph Branch, Headquarters Quality Control/Operations in Washington, DC, or a substantially equivalent position. 2020002347 6 2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision was issued. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The 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." 3. If it has not already done so, within 60 calendar days from the date of this decision the Agency shall pay Complainant $10,000 in nonpecuniary 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 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)2 The Agency is ordered to post at its Office of Investigations, Forensic Services Division, Polygraph Branch, Headquarters Quality Control/Operations in Washington, DC, 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). 2 This posting order only applies if the posting directed in the March 30, 2020 FAD, at p. 8, ¶ 5 was not done. 2020002347 7 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. 2020002347 8 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. 2020002347 9 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 September 2, 2021 Date