EEOC Appeal No. 0120130765
10-24-2014
Complainant v. Dep't of Agric.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Farm Service Agency),
Agency.
Appeal No. 0120130765
Agency No. FSA-2010-00382
DECISION
Complainant filed an appeal from the Agency's October 17, 2012 Final Agency Decision on Request for Compensatory Damages related to her equal employment opportunity (EEO) complaint. Previously, in a Final Decision dated August 18, 2011, the Agency found that Complainant was subjected to 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 MODIFIES the Agency's Final Decision awarding remedies to Complainant.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a County Executive Director at the Agency's Jackson County Farm Service Agency facility in Gainsboro, Tennessee. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when:
On February 22, 2010, Complainant learned that she was not selected for the position of County Executive Director (CED), advertised under Vacancy Announcement Number TN-10-0003 for Overton County, Farm Services Agency (FSA) office.
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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a Final Decision pursuant to 29 C.F.R. � 1614.110(b). The Decision concluded that Complainant proved that the Agency subjected her to sex discrimination when she was not selected for the position identified in her complaint.
In its Decision, the Agency ordered Complainant to notify the Agency of her desire to accept the position of CED for the Overton County FSA office, and to submit her claim for all damages including past pecuniary, future pecuniary, and nonpecuniary damages.
The record reflects that Complainant accepted a CED position in Overton County, by written notice dated September 15, 2011. Additionally, Complainant submitted affidavits from herself and her husband describing her pain and suffering, as well as an electronic mail message from a coworker pertaining to the discriminatory selection process. Complainant also submitted a claim for past pecuniary damages including mileage. Subsequently, in a Final Agency Decision on Request for Compensatory Damages, the Agency awarded Complainant the sum of $3,000 in nonpecuniary, compensatory damages and $4,847.04 in past pecuniary damages including an award for mileage.
On appeal, Complainant requests an award of $15,444.21 for nonpecuniary, compensatory damages to compensate her for the embarrassment, humiliation, and injury to her character and reputation, caused by the discriminatory selection process. Complainant requests compensation for the additional time spent away from her family caused by the distance between her home and her prior position from the time she should have been selected to the time she was placed in the identified position. Had she been selected, Complainant's daily commute would have been considerably shorter. Complainant further argues that the total amount of pecuniary damages should be $5,391.68.
On appeal, the Agency argues that Complainant's appeal is untimely. The Agency states that the amount of past pecuniary damages Complainant requests, $5,391.68, is appropriate and should be granted. The Agency disputes Complainant's claim for a higher award of nonpecuniary damages noting that the original award of $3,000 is consistent with Complainant's injuries, based upon minimal evidence of her pain and suffering, and consistent with prior Commission awards in similar cases. The Agency requests that the Commission affirm the Agency's award of $3,000 for Complainant's nonpecuniary loss.
ANALYSIS AND FINDINGS
As a preliminary matter, we find Complainant's appeal is timely. The Agency states that Complainant received the Agency's Decision regarding remedies on October 25, 2012. Although the Agency argues that Complainant's appeal was untimely filed by mail on November 27, 2012, we find that Complainant also filed her appeal by facsimile transmission on November 26, 2012. We find Complainant's appeal on November 26, 2012, was timely filed with the Commission.
In the instant case, we find both parties agree that Complainant should be paid be $5,391.68 for past pecuniary damages and we shall order the Agency to make such payment.
Regarding Complainant's claim for nonpecuniary damages, we find the evidence supports a greater award than the damages awarded in the Agency's Final Decision.
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. Section 102(a) of the CRA, codified as 42 U.S.C. � 1981a, authorizes an award of compensatory damages as part of the "make whole" relief for intentional discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992) (Guidance). McDaniel v. U.S. Postal Serv., EEOC Appeal No. 0120065054, (Feb. 21, 2008).
In Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), the Commission explained that evidence of nonpecuniary damages could include a statement by complainant explaining how he or she was affected by the discrimination. Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on complainant. Id. Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Nonpecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
In its Final Decision regarding compensatory damages, the Agency considered Complainant's claim that she suffered embarrassment, humiliation, and damage to her professional reputation. The Agency noted that Complainant's brief statement of damages is corroborated only by minimal evidence from her husband and a brief electronic mail message from a coworker, which the Agency noted suggested that Complainant's reputation had not been harmed by the nonselection.
We find that Complainant has described her suffering as noted by the Agency, together with a loss of self-esteem, as well as the impact the discrimination has had upon her marriage and her emotional well being with respect to her family. We find Complainant's husband's statement confirms in sufficient detail, Complainant's descriptions regarding her personal harm including: the impact upon her daily outlook on life (e.g., Complainant dreaded going to work); the strain on her marriage; her doubtful career prospects with the Agency; and diminished happiness from regular home and family activities. We find Complainant has adequately described the adverse impact caused by having fewer hours each week to spend with her family, her husband, and with her personal activities.
A proper award of nonpecuniary, compensatory damages should consistent with the amount awarded in similar cases. See Ward-Jenkins v. Dep't of Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Upon review, we find that an award of $10,000 for nonpecuniary, compensatory damages is appropriate given the nature and duration of the harm. We determine that this amount meets the goals of not being motivated by passion or prejudice, not being "monstrously excessive" standing alone, and being consistent with the amounts awarded in similar cases. See Caneva v. Dep't of Defense, EEOC Appeal No. 01A32890 (July 15, 2004) (awarding $10,000 in nonpecuniary, compensatory damages based on testimony of complainant and his wife that complainant lost enjoyment of life, had an inability to focus, and had difficulty sleeping after the nonselection).
CONCLUSION
Based on a thorough review of the record, we MODIFY the remedial relief provided by the Agency and we REMAND the complaint to the Agency to implement the remedial action set forth in the Order herein.
ORDER
To the extent it has not already done so, the Agency shall take the following remedial actions:
1. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant the amount of $10,000 in nonpecuniary, compensatory damages.
2. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant the amount of $5,391.68 in past pecuniary damages as described herein.
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 complete supporting documentation verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 24, 2015
__________________
Date
2
0120130765
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130765