Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture Agency. Appeal No. 0120112546 Agency No. RHS200600181 DECISION On April 11, 2011, Complainant filed an appeal from the Agency's March 14, 2011 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-1101-07 Processor at the Agency's Rural Development facility in St. Louis, Missouri. On June 18, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when he was subjected to harassment. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). The matter was initially assigned to an AJ for a hearing but was later remanded to the Agency for a final decision. On May 14, 2010, the Agency issued a final decision on the merits, (FAD 1) concluding that Complainant "endured unwelcome personal slurs and other denigrating or insulting verbal conduct" and was subjected to "continuous discriminatory harassment" based on race from 1999 to 2005, which forced him into retirement in March 2006. The Agency's conduct resulted in Complainant suffering "anxiety, depression and chronic pain." Complainant's conditions were treated by several medical professionals including, particularly, a "Therapist" who was a Licensed Clinical Social Worker. The Therapist's treatment of Complainant continued until October 2007. In a decision on remedies dated March 14, 2011, (FAD 2) Complainant was awarded relief including $180,000 in non-pecuniary compensatory damages, attorney's fees, reinstatement to the GS-1101-7 Processor position retroactive to March 2006 and $56,130.00 in back pay. By the instant appeal, Complainant challenges only the amount of the back pay award. ANALYSIS AND FINDINGS Based on the finding of discrimination, Complainant is entitled to full relief in the form of back pay and benefits as authorized by Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. §2000e et seq. Awards of back pay in Title VII cases are governed by 5 C.F.R. 550.801 et seq. See 29 C.F.R. 1614.501(b)-(c). The purpose of a back pay award is to restore to Complainant the income he would have otherwise earned but for the discrimination. See Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. United States Postal Service, EEOC Petition No. 04900010 (November 29, 1990). The applicable regulations provide that amounts earnable with reasonable diligence by the person discriminated against shall operate to reduce the back pay otherwise allowable. Thus, Complainant has a duty under Title VII to mitigate or lessen damages by making a "reasonable good faith effort to find other employment." This means that Complainant was required to seek a substantially equivalent position, meaning a position that afforded virtually identical compensation, job responsibilities, working conditions, status and promotional opportunities as the position he was discriminatorily denied. See Weaver v. Casa Gallardo, Inc., 922 F 2d 1515 (11th Cir. 1991); Todd v. United States Postal Service, EEOC Petition No. 04920007 (August 27, 1992). However, in order to justify any reduction in an award of back pay, the burden of establishing a failure to mitigate must be borne by the Agency. Rhodes v. United States Postal Service, EEOC Petition No. 04900002 (January 4, 1990). Usually, a back pay award runs until a complainant is reinstated into the position he or she lost due to the discrimination. In this case that is from March 2006, the date of the constructive discharge, until May 14, 2010, the date of the reinstatement order. Here, however, the Agency inexplicably determined that Complainant was to receive back pay only for the period from March 2006 to October 2007, the period during which Complainant was receiving treatment by the Therapist. See FAD 2 at 14. The Agency appears to be of the view that Complainant was fit to work after October 2007 because he was no longer under the care of the Therapist and, therefore, had no excuse for his failure to mitigate his back pay damages. In our view, the record evidence shows that Complainant was not fit to work even after the Therapist's treatment terminated. In July 2007, the Therapist expressed the following view on the question of Complainant's ability to work: In my opinion the chronic back and neck pain, the arthritis and his mental and emotional problems are enough posit [sic] a prescription for very limited and light work duties. Ideally my recommendation for him would be no work if he can afford it. Supplemental Investigation, as quoted in Complainant's Appeal Statement at 8. In addition, in response to a question about the prospect of Complainant being able to work during the following 12 months the Therapist stated: . . . I would classify [Complainant's] mental ability to function under heavy stress loads for any prolonged period as marginal to none. So my answer is I do not expect the clients [sic] mental and physical health to improve significantly enough for him to be able to hold down any work position that will require him to sit, stand, or lift even small amounts 12 months from now and probably afterwards. Id. Finally, there are indications in the record that Complainant continued to receive treatment for his medical and psychological conditions, including medication for pain, throughout the relevant period. FAD 2 at 4, 11. We find that the Agency erred in limiting back pay to the period during which Complainant was receiving treatment from the Therapist. The Agency has not borne the burden of proving that Complainant unreasonably failed to mitigate his damages after the Therapist's treatment concluded. The evidence does not support the conclusion that Complainant was fit to work during that period. This matter will be remanded for a recalculation of back pay. The Agency is directed to determine whether Complainant's physical or mental condition during any period after March 2006 rendered him substantially unemployable. For any such period during which Complainant was substantially unemployable, Complainant is to be awarded back pay.1 CONCLUSION For the foregoing reasons, the Agency's final decision is modified, and this matter is remanded for further proceedings consistent with this decision and the Order below. ORDER Within 120 days of the date this decision becomes final the Agency shall recalculate and pay Complainant back pay (with interest) and all other benefits due pursuant to 29 C.F.R. §1614.501 for the amount of time he was substantially unemployable between March 2006 - May 14, 2010. Complainant shall cooperate with 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, the Agency shall issue a check to Complainant for the undisputed amount, and Complainant may contest the Agency's back pay award in accordance with the appellate procedures. 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 (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 (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 November 7, 2014 Date 1 In no event, shall the amount of back pay awarded on remand be less than the amount of back pay awarded in FAD 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120112546 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013