[Redacted], Mitzie W., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 7, 2022

Appeal No. 2020005115 (E.E.O.C. Mar. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mitzie W.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020005115 Agency No. DON-17-62381-0278 DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency decision, dated May 13, 2020, concerning Complainant's entitlement to compensatory damages regarding an equal employment opportunity (EEO) complaint claiming 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 MODFIES the Agency's final decision. BACKGROUND During the relevant time, Complainant was a Civil Service Mariner (CIVMAR) employed with the Military Sealift Command (MSC) as an Assistant Storekeeper, WM-9994-15, aboard the U.S. Navy Ship (USNS) Wally Schirra of the Norfolk Naval Base in Virginia. On November 16, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal (prior protected EEO activity) when her second-level (S2) and fourth-level (CPT) supervisors changed her performance evaluation from “Outstanding” to “Excellent” after she complained to them about an Abled Bodied Seaman (AB) stalking and harassing her. AB allegedly broke into her state room several times, beginning on February 21, 2017, while she was asleep onboard ship. 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. 2020005115 2 Following the 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to reprisal as alleged. In Mitzie W. v. Dep’t of the Navy, EEOC Appeal No. 2019001915 (Mar. 11, 2020), we reversed the Agency’s final decision, finding that Complainant established that she was subjected to discrimination, as alleged. We specifically noted that S2 lowered Complainant’s rating from “Outstanding” to “Excellent,” after Complainant reported alleged harassment, by AB, to the CPT. In lowering Complainant’s performance rating, we observed that S2 directly referenced Complainant's EEO activity as part of his negative commentary in the written evaluation of Complainant’s performance. We found that citing to Complainant’s protected EEO activity in her performance review constituted direct evidence of reprisal. We noted that S2 clearly demonstrated bias toward Complainant due to her prior protected EEOC activity, by linking it to one of several performance deficiencies in her evaluation. The Commission found that such a connection was reasonably likely to deter Complainant and other employees from engaging in the EEO process. However, the decision also found that the case concerned a “mixed motive” as the record contained legitimate, non-retaliatory reasons for her performance evaluation. Notwithstanding, we determined that the Agency failed to meet its burden of establishing that it would have taken the same action even if it had not considered the retaliatory factor. We specifically did not find that management’s assertion, that it considered Complainant to be a poor performer since day one, was credible. Rather, the record was devoid of documentary evidence to support management's assertion that Complainant’s performance was poor, and S2 attested that Complainant was never counseled regarding her alleged poor performance. In addition, the prior decision observed that S2's statements reflected his deep disdain for Complainant's participation in protected EEO activity. We therefore found that Complainant established that she was subjected to retaliation, as alleged. In compliance with our order, the Agency provided Complainant with the opportunity to submit evidence in support of her claim for compensatory damages. The Agency also provided Complainant with its supplemental investigation regarding her entitlement to compensatory damages. Therein, Complainant averred that she experienced financial difficulties as a result of S2’s change to her evaluation and reference to her EEO activity. Complainant also stated that when she refused to sign the evaluation, her supervisor sent it off the ship, which she alleges is called MAPS.2 According to Complainant, as a result of the lower rating, she could not apply for promotion to Yeoman Storekeeper, under announcement No. 18-832-01, causing her emotional distress in the amount of $360,000. 2 This acronym has not been identified in the record. 2020005115 3 Complainant additionally explained that she spent $200 in legal consultation fees incurred on June 18, 2017, and July 1, 2019. She acknowledged that she did not experience any medical issues and had not obtained psychiatric or psychological counseling because of the retaliation. Agency's Final Decision on Compensatory Damages On May 13, 2020, the Agency issued its final decision on compensatory damages. The Agency determined that Complainant was only entitled to $100 in past pecuniary damages, because the record only contained a receipt for legal consultation fees totaling $100 dated July 1, 2019. Additionally, the Agency awarded Complainant $500 in non-pecuniary compensatory damages. In so finding, the Agency reasoned that Complainant did not provide any medical documentation regarding any long-term mental or physical injury. Complainant acknowledged, noted the Agency, that she did not experience medical issues. She was not prescribed medication nor obtained psychological or psychiatric counseling because of the retaliatory discrimination. CONTENTIONS ON APPEAL On appeal, Complainant contends that she is entitled to $360,000 in non-pecuniary compensatory damages for the emotional harm she suffered as a result of the Agency’s retaliation. In response, the Agency requests that we affirm its final decision, awarding Complainant $100 in pecuniary damages and $500 in non-pecuniary compensatory damages.3 ANALYSIS AND FINDINGS Non-pecuniary Compensatory Damages Non-pecuniary losses are losses that are not subject to precise quantification, including emotional pain and injury to character, professional standing and reputation. There is no precise formula for determining the amount of 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 to 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). 3 Complainant, on appeal, does not expressly contest the Agency's award of $100 in pecuniary damages. Thus, we decline to address this matter further herein. 2020005115 4 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 or her 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. 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. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his 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. In the instant case, Complainant has not proffered any medical documentation regarding any long-term mental or physical injury. She also admitted that she did not experience any medical issues or receive any medical treatment, including psychological or psychiatric counseling, because of the retaliation. Additionally, Complainant does not explain the nature or extent of her resulting emotional harm. We also note that Complainant did not submit any statements from friends or family members concerning any emotional ham that she may have suffered. With respect to her assertion that she has suffered financial harm as a result of the Agency’s actions, Complainant fails to provide any details. Notwithstanding, we conclude that the Agency’s award of $500 in non-pecuniary compensatory damages is insufficient to remedy the harm the Agency's action caused Complainant. We instead find that an award of $1,500 to be a more appropriate. See Marcel M. v. U.S. Postal Serv., EEOC Appeal No. 0120151062 (May 17, 2017) ($1,500 in non-pecuniary compensatory damages awarded where complainant claimed that he was deterred from further career advancement as a result of the agency’s retaliation); Complainant v. Dep't of Agric., Appeal No. 0120131546 (June 10, 2015) (non-pecuniary award of $2,000 where complainant only stated that he was unhappy with the treatment he received by the Agency and as a result, his health and welfare were affected); Seda v. U.S. Postal Serv., Appeal No. 0720050090 (Mar. 20, 2007) (Complainant awarded $1,500 in non-pecuniary compensatory damages for reprisal discrimination where complainant provided only limited and non-descriptive testimony concerning emotional pain); Wiggins v. U.S. Postal Serv., EEOC Appeal No. 01A15177 (Apr. 2, 2002) ($1,000 awarded in reprisal action in which complainant experienced increased stress and there was limited evidence to support the claim); and Bagwell v. U.S. Postal Serv., EEOC Appeal No. 01A04047 (Dec. 23, 2002) ($1,500 awarded in reprisal action where there was limited evidence in the record to support complaint’s claim of emotional distress). 2020005115 5 We find that an award of $1,500 takes into account the severity of the harm suffered and is consistent with prior Commission precedent. Finally, we find that this award is not “monstrously excessive” standing alone, is not the product of passion or prejudice, and is consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency’s final decision. ORDER Within sixty (60) calendar days from the date this decision is issued, to the extent it has not already done so, the Agency shall: Pay Complainant $1,500 in nonpecuniary compensatory damages. 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 the corrective action has been implemented. 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. 2020005115 6 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. 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. 2020005115 7 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 March 7, 2022 Date