0720180002
04-12-2018
Stefany D.,1 Complainant, v. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stefany D.,1
Complainant,
v.
Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720180002
Hearing No. 460-2015-00093X
Agency No. 200305802014104080
DECISION
Following its October 18, 2017 final order the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. � 1614.403(a). On appeal, the Agency adopted the decision of an EEOC Administrative Judge's finding of 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 Agency appealed the remedy ordered by the Administrative Judge.
ISSUE PRESENTED
The issue presented is whether the EEOC Administrative Judge properly awarded Complainant $50,000 in non-pecuniary compensatory damages following a finding of discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-12, at the Agency's Michael E. DeBakey Medical Center in Houston, Texas.
On September 15, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and sex (female) when, on June 12, 2014, Complainant learned that she was not selected for a Supervisory Human Resources Specialist position under Vacancy Announcement 13HRW-924152.
At the conclusion of 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing in August 2017, and issued a decision concluding Complainant had proven her claim of discrimination on September 12, 2017.
The AJ determined that Complainant (African American female) had been a Human Resources Specialist since 2000 and had, on several occasions, been the Acting Supervisor of her unit. The record indicated that the Agency posted the vacancy announcement, and then rated and ranked the applicants. Complainant was the second highest rated candidate. However, the Selecting Official indicated that he wanted to expand consideration to locate other acceptable candidates and provided Human Resources with a folder including a copy of the selectee's resume and that of another applicant for a second round of consideration. Complainant was listed as qualified following both rounds 1 and 2. The eventual selectee was a Caucasian male.
The AJ held that "[e]verything about the Round 2 phase of the selection was unusual and inconsistent with federal selection policy and procedures." The AJ held that the selectee had applied for the position at both rounds, but was found ineligible in round 1. The AJ indicated that the Agency circumvented the system and hired him non-competitively when there were 17 other qualified applicants. The AJ found that it was "clear that Agency management knew what to do but simply decided to proceed in a discriminatory fashion." The AJ also pointed to the Agency's own internal investigation which found that the Human Resources department had engaged in a prohibited personnel practice with the selection of the selectee. The AJ pointed to evidence indicating the selectee was subsequently unsuccessful in the position. The AJ stated that the Agency has subsequently re-announced the position in question and Complainant was selected. Evidence presented showed she was performing successfully in the position.
The AJ ordered remedial relief following the finding of discrimination. The AJ indicated that Complainant had already been promoted to the position in question by the time of the hearing, but held that the Agency was required to provide Complainant with equitable relief, including a backpay award. The AJ further determined that Complainant was entitled to $ 50,000 in non-pecuniary compensatory damages. The AJ indicated that the Agency's action was egregious. The Agency was also instructed to post a notice of the finding of discrimination and to provide training for all managerial staff in the Human Resources Department particularly regarding Title VII.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged, as well as the equitable relief ordered. The Agency only rejected the AJ's order of $ 50,000 in non-pecuniary compensatory damages and simultaneously filed the instant appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Here, the Agency has conceded that the AJ's finding of discrimination is correct and we affirm that finding. The only issue before the Commission is whether the AJ's award of compensatory damages is supported by substantial evidence. To receive an award of compensatory damages, a complainant must demonstrate that she has been harmed as a result of the agency's discriminator)' action: the extent, nature and severity of the harm; and the duration or expected duration of the harm. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992). A complainant is required to provide objective evidence that will allow an Agency to assess the merits of his request for damages. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Non-pecuniary 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. 915.002 at 10 (July 14, 1992).
Complainant requested $200,000 in compensatory damages before the AJ. In her pre-hearing submission, Complainant stated that she experienced physical and emotional pain and suffering, loss of reputation, and loss of enjoyment of life. Since 2014, Complainant has experienced increased physical illnesses including increased hypertension and been diagnosed with depressive disorder. She indicated that she has sought and received counseling a religious-based organization and been treated for depression at by her Psychiatrist. Based on this evidence, the AJ determined that Complainant was entitled to $50,000 based on the Agency's discriminatory non-selection.
The Agency argues that the AJ ordered relief on reasons other than the harm Complainant experienced in order to award her $ 50,000 in non-pecuniary damages. The Agency asserted that the AJ relied on "overwhelming evidence of pretext," that Complainant was "pro se" in awarding compensatory damages, and that the Agency's failure to settle the matter put itself in peril. The Agency argued that none of these issues should have played any role in the AJ's decision regarding compensatory damages. In addition, the Agency asserted that Complainant failed to provide evidence to justify such an excessive award of damages. Accordingly, the Agency argued that the Commission should reduce the award of damages to a range of $ 5,000 to $ 25,000. Therefore, the Agency requested that the Commission reduce the award to no more than $ 25,000.
Complainant responded to the Agency's appeal. Complainant surmised the Agency based its request to reverse the AJ's decision regarding compensatory damages on its belief that Complainant has not suffered damages as a result of the discrimination. Complainant asserted that over the last three and a half years, she has suffered significant stress caused by the Agency's action. Complainant claimed that the discrimination created a pervasive environment of distrust and extensive emotional distress. She has experienced increased physical illnesses including hypertension and a diagnosis of major depressive disorder. She has sought counseling from a ministry-based counselor and has been treated for depression by a psychiatrist. Complainant provided the Commission with documentation to support her claims that her medical conditions were related to the Agency's discrimination
In addition to the medical consequences, Complainant asserted that her family and personal relationships were negatively impacted. She stated that people would have to avoid discussing work with her. She was humiliated and felt disrespected by the Agency. She also was in continuous contact with the management officials involved in the discriminatory action. In addition, the selectee, who was determined twice to be unqualified, became her supervisor. This created a feeling of shame and served as a daily reminder to the Agency's action. She said the constant worry and distrust created more anxiety and fear. Complainant's psychiatry notes show that Complainant is still "down, demoralized" and that she is "heartbroken about work at the [Agency]." The notes indicate that Complainant has a lot of problems with focus and stress and frustration with work. As such, Complainant requested that the Commission affirm the AJ's award of compensatory damages.
Upon review, we find that the AJ's compensatory damages award is supported by the substantial evidence of the record and is consistent with case precedent. See Cavanaugh v. U.S. Postal Serv., EEOC Appeal No. 07A20102 (Nov. 12, 2003) (awarding $50,000 in nonpecuniary damages for Complainant who was subjected to discriminatory non-selection based on sex); Wilson v. Dep't of the Air Force, EEOC Appeal No. 01955269 (July 29, 1997) (awarding $53,000 in non-pecuniary losses in a sex discrimination case in which complainant explained that she became emotionally drained, lost sleep, and found herself unable to deal with her husband and children); Schinner v. Dep't of Veterans Affairs, EEOC Appeal No. 01A03837 (March 7, 2002) (awarding $50,000 to complainant who was subjected to discriminatory harassment noting that she was humiliated, embarrassed, unable to get a full night of sleep without medication, had fights with her husband due to pressure, and felt depression), Woodard v. Dep't of Labor, EEOC Appeal No. 01A11604 (Oct. 11, 2002) (awarding $40,000 to complainant who was subjected to race-based discrimination in a non-selection case where complainant experienced mood swings, loss of sleep, weight loss, and loss of enjoyment of life; complainant sought treatment from a doctor and social worker for depression, however there was evidence of other contributing factors).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's implementation of the AJ's decision finding discrimination. We REVERSE the Agency's decision regarding the award of compensatory damages and REMAND the matter in accordance with the ORDER below.
ORDER (D0617)
To the extent it has not done so already, the Agency is ordered to take the following remedial action within ninety (90) calendar days from the date this decision was issued, unless otherwise indicated:
I. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due the Complainant, pursuant to 29 C.F.R. � 1614.501, from June 12, 2014, no later than sixty (60) calendar days after the date this decision was issued. The 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 the 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."
II. The Agency shall pay Complainant $50,000 in compensatory damages with interest.
III. The Agency is directed to conduct training for the Human Resources Division who was found to have violated Title VII. The Agency shall address these employees' responsibilities with respect to Title VII.
IV. The Agency shall consider taking disciplinary action against the selecting official. The Agency shall report its decision. 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.
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 Michael E. DeBakey Medical Center in Houston, Texas (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 (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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. 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 (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
April 12, 2018
__________________
Date
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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