Renato K.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Nov 2, 2018

0120172853 (E.E.O.C. Nov. 2, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Renato K.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120172853

Agency No. HS-ICE-21358-2012

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 21, 2017 final
decision concerning his 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. The Commission accepts the appeal in accordance with 29 C.F.R. §
1614.405.

BACKGROUND

During the relevant time, Complainant worked as an Immigration Enforcement Agent in the
Enforcement and Removal Operations Division of the Agency’s El Paso Field Office in Texas.

On May 6, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected
him to a hostile work environment based on race and on October 17, 2011, he learned that his
former supervisor violated his privacy when the supervisor discussed Complainant’s prior EEO
complaint with a co-worker, and when the supervisor left documents related to the investigation
where others could see the documents.

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.
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Thereafter, on March 24, 2014, the Agency issued a final decision finding no discrimination.
On appeal, in the Commission’s prior decision, the Commission affirmed the Agency’s finding
of no discrimination regarding the harassment claim. With respect to the claim of reprisal,
however, the Commission determined that the Agency had committed a per se violation. See
Complainant v. Dep’t of Homeland Security, EEOC Appeal No. 0120141861 (Dec. 16. 2016).
The case was remanded to the Agency for a supplemental investigation and decision on
compensatory damages. See id. Additionally, the Agency was ordered to provide EEO training
to the responsible supervisor, consider discipline, and post a notice regarding the finding of
discrimination. See id.

In accordance with our order, the Agency issued a decision on July 21, 2017. Regarding
pecuniary damages, the Agency considered Complainant’s bill for $348.79 from Cardiology
Care Consultants. Complainant stated that the emotional distress from the reprisal cause him to
“indulge on sweets” which, in turn, resulted in his diabetes and heart palpitations. Additionally,
Complainant explained that he suffered from sleeplessness, nightmares and chest pains. The
Agency reasoned that Complainant’s initial treatment with the cardiologist was on January 4,
2013, approximately one year and three months after the discrimination. Moreover, the Agency
found that Complainant did not provide any evidence that his medical concerns were attributable
to the per se violation. The Agency denied Complainant any pecuniary damages and awarded
him $3,500.00 in non-pecuniary compensatory damages.

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Compensatory Damages

When discrimination is found, the agency must provide a complainant with a remedy that
constitutes full, make-whole relief to restore him as nearly as possible to the position he would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S.
747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v.
U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994).
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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 non-pecuniary 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, 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. 42 U.S.C. § 1981a(b)(3)

To receive an award of compensatory damages, a complainant must demonstrate that he or she
has been harmed by the agency’s discriminatory action; the extent, nature, and severity of the
harm; and the duration or expected duration of the harm. Rivera v. Dep’t of the Navy, EEOC
Appeal No. 01934157 (July 22, 1994), req. for reconsideration denied, EEOC Request No.
05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.

Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses,
and non-pecuniary losses which are directly or proximately caused by the agency’s
discriminatory conduct. EEOC Notice No. 915.002 at 8. Objective evidence of compensatory
damages can include statements from the 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
nonpecuniary losses that are incurred as a result of the discriminatory conduct. 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. 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).

In the instant case, Complainant has provided limited evidence regarding his request for
damages. The record includes one bill from Cardiology Care Consultants for $348.79. This bill
reflects appointments conducted in January and March 2013. Complainant contends that the
emotional distress from the discrimination caused him to “indulge on sweets,” which resulted in
diabetes and heart palpitations. We agree, however, with the Agency that Complainant has
failed to substantiate the purported nexus between his medical conditions and the Agency’s per
se act of reprisal. Similarly, we find his claims regarding future pecuniary losses to be
speculative and unsupported.

In his “Statement to depict a Casual Relationship between the Agency’s Retaliation and My
Losses”, Complainant focuses on the EEO complaint process.
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He describes his initial belief in EEO policies and the process, as well as his hope for a “prompt
and fair intervention” for the “unjust behavior by supervisor.” Complainant contends that,
instead, he was subjected to “prolonged mental, physical, and emotional torment . . . .” He
alleges that the EEO Counselor distorted his complaint, was not neutral, and subjected him to
“unfair punishment.”

Complainant is entitled to remedies for harm and losses suffered from the discrimination, in this
case, the supervisor’s conversation with a co-worker about Complainant’s prior EEO case and
his failure to keep related documents private. Complainant’s statement, however, relates to
alleged injury caused by the EEO process, rather than the Agency’s retaliatory actions.
Therefore, we find that the Agency’s decision on compensatory damages, awarding Complainant
$3,500.00 in non-pecuniary damages was proper.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision on the issue of damages.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
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The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO
Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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

November 2, 2018
Date