[Redacted], Teresa B., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020003557 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Teresa B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency. Appeal No. 2020003557 Agency Nos. DFAS-00017-2017, DFAS-00059-2017, DFAS-00055-2018 DECISION Complainant filed the instant appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 20, 2019 final decision concerning her award of compensatory damages regarding her equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. The Agency’s decision awarding compensatory damages is AFFIRMED. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, GS-11, subject to a one-year probationary period which was later switched to a two-year probationary period, at the Agency’s Strategy, Support, Information, and Technology Directorate Office in Indianapolis, Indiana. On December 30, 2016, May 31, 2017, and May 21, 2018, Complainant filed her complaints alleging that she was subjected to a hostile work environment and discrimination based on age, religion, race, and in reprisal for prior EEO activity 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. 2020003557 2 1. On October 7, 2016, her first-level supervisor (S1) directed her to stop sending emails with her coworkers’ names regarding training and other incidents. S1 commented that such concerns are taken seriously but management is not looking for troublemakers. Further, S1 commented that legal liability had to be considered before following up on such claims, and that probationary employees are easier to get rid of than permanent ones; 2. On October 11, 2016, S1 made a pistol-style gesture toward his temple and commented, “As long as you are cognizant” when she informed him that she had reported PII (personally identifiable information) concerns to her team; 3. In November and December 2016, S1 rejected her timesheets numerous times during the approval period, and commented about her rejected timesheets in a branch meeting; 4. On approximately December 20, 2016, she became aware that the insults, lack of instruction, lack of communication, lack of training, and other factors were attempts to not retain her; 5. In January 2017 through May 2017, S1 rejected her timesheets; 6. On or about January 9, 2017, S1 directed her to go to a restricted government area; 7. On January 19 - 20, 2017, and April 11, 2017, S1 changed positive comments on her quarterly review to negative comments; 8. On or about January 20, 2017, during a “behavioral” meeting with her, S1 mentioned her previous harassment complaint and stated he wanted the hostilities to cease; 9. On April 12 - 13, 2017, S1 was belligerent when she asked to be included in project code discussions; 10. In approximately May 2017, S1 accused her of not following protocol for requesting leave; 11. On or about May 8, 2017, management accused her of not following instructions after she was directed to copy her supervisor on her email messages; 12. On May 18, 2017, during her performance plan review, S1 lied to her about a performance element and commented that she was confused; 13. On or about September 19, 2017, she found a “like” on her Facebook account from a person with the same last name as S1, and subsequently her Facebook account has been flooded with nude/lewd and religiously harassing posts; 2020003557 3 14. Since approximately November 2017 through April 2018, she received a lack of managerial support for advancement opportunities and she received misleading instructions regarding her performance appraisal; and 15. In May 2018, she felt forced to resign from her position with the Agency.2 Following the investigations, Complainant did not request a hearing before an Equal Employment Opportunity Commission Administrative Judge. The Agency issued its final decisions concluding that Complainant failed to prove that the Agency subjected her to discrimination and a hostile work environment as alleged. The Agency found that Complainant did not establish that its legitimate, nondiscriminatory reasons were pretextual based on her protected classes. Complainant appealed. The Commission, consolidating Complainant’s appeals, in Appeals Nos. 0120180570, 0120181692, and 2019002121 (Sept. 4, 2019), modified and/or affirmed the Agency’s final decisions. Specifically, the Commission found a per se reprisal violation under Title VII regarding claims 1 and 8 when S1 made comments to Complainant on October 7, 2016, and January 20, 2017. The Commission however found no discrimination based on age, religion, or race regarding the subject claims. The Commission affirmed the Agency’s decisions that Complainant failed to show that she was discriminated against regarding the remaining claims and that she was subjected to a hostile work environment as alleged. The Commission noted that Complainant was not supervised by S1 but was supervised by a new supervisor when the incidents described in claims 14 and 15 occurred. Accordingly, the Commission ordered the Agency to take the following remedial actions within 120 calendar days of when the decision was issued: 1. The Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to the finding of per se reprisal and shall determine the amount of compensatory damages to which Complainant is entitled. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer referenced below. Within 30 days of its determination of the amount of compensatory damages owed to Complainant, the Agency shall pay Complainant that amount. 2. The Agency shall provide a minimum of eight hours of in-person or interactive EEO training to the management official identified as S1 in this decision, with a special emphasis on reprisal and the obligation not to restrain, interfere, coerce, or retaliate 2 Complainant alleged claims 1 - 4 in Agency No. DFAS-00017-2017, claims 5 - 13 in Agency No. DFAS-00059-2017, and claims 14 - 15 in Agency No. DFAS-00055-2018. 2020003557 4 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. 3. The Agency shall consider taking appropriate disciplinary action against S1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S1 has left the Agency's employ, the Agency shall furnish documentation of the departure date. 4. The Agency shall post a notice of this finding in accordance with this decision. On December 20, 2019, the Agency issued its final decision awarding $2,300.00 for Complainant’s nonpecuniary, compensatory damages for the discrimination and $595.00 for her attorney’s fees. The Agency stated that Complainant did not submit any medical reports or notes, declarations from friends, coworkers, or family members, or receipts documenting her out- of-pocket expenses. The Agency concluded that since Complainant did not submit any claim for pecuniary damages, she was not entitled to any pecuniary damages. Regarding nonpecuniary damages, the Agency indicated that Complainant, asking for over $300,000.00, submitted hundreds of pages of information, correspondence, and explanations concerning the harm she suffered. In her October 22, 2019 statements, Complainant indicated, in part, that she was entitled to: • Forward pay compensation for positions held/eligible for future promotion; • Secondary career compensation lost due to inability to complete Master’s Degree program, average $97,322.00 x 15 years (to retirement age); • $60,000.00 Department of Defense Student Debt Forgiveness Program; • $2,700.00 for Marist Business Institute COBOL Training Certificate; • $595.00 for legal fees; • $9,340.00 for tuition and fees Master’s Degree; • Future pecuniary losses I: $350,000.00 for basic area relocation to similar region/cost of living prior to hire; $10,000.00 for electronic security fees; $26,000.00 for career/trauma counseling for severe discouraged worker effect and terrorism, harassment; $104,000.00 per year plus 10% increase per year x 12 years until retirement age for spousal career loss on relocation; • Future pecuniary losses II: $8,000,000.00 for family of 4 witness/whistleblower protection and international relocation; and • Nonpecuniary damages: $50,000,000.00 for bad faith, breach of good faith, loss of liberty, threat to life, hostile work environment, public and workplace humiliation and electronic harassment. 2020003557 5 The Agency stated that Complainant claimed that she felt discouraged/despondent, devastated, and psychologically abused; she felt government agencies were watching her on the roads, as well as on the web; she felt weak in the face of her supervisors; she felt her career, safety, and life were threatened; she lost faith in government agencies and institutions; she did not want to celebrate certain holidays; she felt she was unable to complete the degree program in 2017-2018; her academic standing dropped; and she was a discouraged worker, unsure of her ability to reenter the workforce. The Agency determined that Complainant failed to establish the symptoms she claimed to have experienced were directly or proximately caused by the Agency’s discrimination. In fact, stated the Agency, Complainant’s request for relief appeared to be based on stress she suffered as a result of litigating her case and harm she suffered as a result of the alleged harassment and constructive discharge on which she did not prevail. The Agency also determined that Complainant failed to show any evidence that her physical health was impacted. The Agency concluded that based on the evidence presented by Complainant, $2,300.00 was a reasonable award for Complainant’s nonpecuniary damages. Regarding attorney’s fees, the Agency stated that Complainant submitted a total of $595.00 for two hours consultation, at the hourly rate of $297.50. The Agency indicated that Complainant sought this consultation after the Commission made its finding in her favor on the basis of per se reprisal. The Agency, finding the hourly rate reasonable, concluded that $595.00 was reasonable for Complainant’s attorney’s fees. Complainant appeals the Agency’s awarding of her compensatory damages. Complainant claims that she is entitled to her full requested amounts. Complainant did not appeal the Agency’s awarding of $595.00 for her attorney’s fees. ANALYSIS AND FINDINGS Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., may receive compensatory damages for past and future pecuniary losses (i.e., out- of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of make-whole relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (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 $300,000.00. 42 U.S.C. § 1981a(b)(3). Pecuniary losses are out-of-pocket expenses incurred because of the agency’s unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement. EEO MD-110, at Chap. 11, VII.B.2 (Aug. 5, 2015) (internal citations omitted). Future pecuniary damages are losses likely to occur after the resolution of the complaint. 2020003557 6 In a claim for pecuniary, compensatory damages, a complainant must demonstrate, through appropriate evidence and documentation, the harm suffered because of the agency’s discriminatory action. Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure. The agency is only responsible for those damages that are clearly shown to be caused by the Agency’s discriminatory conduct. To recover damages, a complainant must prove that the employer’s discriminatory actions were the cause of the pecuniary loss. Id. (citations omitted). 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 Notice No. 915.302, Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, 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 ham 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 non-pecuniary 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 “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 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 non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Statements from others including family members, friends, health care providers, and 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 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. 2020003557 7 Complainant has the burden of proving the existence, nature and severity of the alleged emotional harm. Man H. v. Dept. of Homeland Security, EEOC Appeal No. 0120161218 (May 2, 2017). Complainant must also establish a causal relationship between the alleged harm and the discrimination. Id. Absent such proof of harm and causation, a complainant is not entitled to compensatory damages, even if there were a finding of unlawful discrimination. Id.; Wilda M. v. U.S. Postal Service, EEOC Appeal No. 0120141087 (Jan. 12, 2017) (awards for emotional harm are warranted only if complainant establishes a sufficient causal connection between the agency’s illegal actions and her injury). Complainant requested over $10,000,000.00 for pecuniary damages. After a review of the evidence, we agree with the Agency that Complainant has not established that she was entitled to pecuniary damages. Pecuniary damages, past and/or future, are only appropriate if they are directly or proximately caused by the Agency’s discrimination. In this case, we find that Complainant did not provide any objective evidence of her past or future pecuniary damages. Although Complainant claimed that she was entitled to pecuniary damages for pay compensation for future promotion/positions, Master’s Degree tuition and fees, her student debt, a training certificate, relocation costs, electronic security fees, career/trauma counseling for harassment, and her spousal career loss, we find that she failed to provide any objective evidence that these damages were directly caused by the Agency’s per se reprisal actions when S1 made his comments on October 7, 2016, and January 20, 2017. After a review of the evidence in the record, we find that Complainant’s claim regarding pecuniary damages to be speculative and unsupported. Complainant requested $50,000,000.00 for nonpecuniary damages for the Agency’s bad faith and breach of good faith, loss of liberty, threat to life, hostile work environment, public and workplace humiliation, and electronic harassment. There is no evidence Complainant sought any medical attention as a result of the Agency’s discrimination. Taking into consideration of the evidence submitted by Complainant, including her own statement, and the nature of the violations, we find that her request for $50,000,000.00 to be excessive. Rather, we find that the Agency’s award of $2,300.00 for Complainant’s nonpecuniary damages is supported by the evidence, neither “monstrously excessive” nor the product of passion or prejudice, and consistent with prior Commission precedent. See Natalie S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2021000139 (April 27, 2021) ($1,500.00 was award in nonpecuniary, compensatory damages for denial of union representative for EEO matters); Marcel M. v. U.S. Postal Serv., EEOC Appeal No. 0120151062 (May 17, 2017) ($1,500.00 was awarded in nonpecuniary damages because of the agency’s retaliatory actions in failing to remove a letter of warning from a personnel file). This amount is adequate to compensate Complainant for the harm suffered as a result of the Agency’s actions. The record indicates that the Agency paid Complainant $2,895.00 ($2,300.00 for compensatory damages and $595.00 for attorney’s fees) on June 23, 2020, and therefore there is no need to order such payment. 2020003557 8 CONCLUSION Accordingly, the Agency’s final decision concerning Complainant’s compensatory damages is AFFIRMED. 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. 2020003557 9 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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 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 May 19, 2021 Date