Anglea R., Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency. Appeal No. 0120131489 Agency No. 2008-0066-HQ DECISION On February 26, 2013, Complainant filed an appeal from the Agency's January 25, 2013, final decision on the issue of remedies to be rewarded as the result of her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Specialist at the Agency's Office of the Chief Financial Officer in Washington, DC. On July 24, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her age (45) and in reprisal for prior protected EEO when she was subjected to ongoing harassment beginning on February 21, 2007. Specifically, Complainant alleged that she was subjected to harassment when: (1) on February 21, 2007, she was placed on a performance improvement plan (PIP); (2) in February and March 2007, management removed her from several assignments without prior notice; (3) in October 2007, management placed her in AWOL status for going to the union to file a grievance without submitting a leave slip; (4) in December 2007, management issued her a letter of insubordination; (5) between March and June 2008, management placed her on another PIP; (6) on June 15, 2008, she was assigned to a 120-day detail to the Mail Management Office; (7) on July 14, 2008, her detail was terminated; (8) on an unspecified date she was given defective computer equipment; and (9) management kept her on a PIP at the time she filed her formal complaint. On April 27, 2012, the Agency issued a final decision finding that Complainant failed to show that she was subjected to harassment on the basis of her age. The decision also found, however, that Complainant was subjected to reprisal discrimination when on July 14, 2008, her 120-day detail was terminated.1 The Agency instructed Complainant that she had 45 calendar days from receipt of the decision to submit objective evidence in support of her claim for damages. The April 27, 2012 decision provided appeal rights to the Commission regarding the merits determination, but Complainant did not appeal the Agency's April 27 final decision. The Agency subsequently issued a decision on remedies, dated January 25, 2013. In its decision, the Agency found that, despite being given more than 90 days to comply with the request, Complainant failed to provide any evidence to support a claim for compensatory damages. Accordingly, the final decision denied any award of damages but ordered the Agency to: (1) provide Complainant with a 120-day detail opportunity commensurate with her current grade and skill set; (2) conduct 8 hours of EEO training to employees and management officials; and (3) consider taking disciplinary action against the responsible management officials. On appeal, Complainant contends that the Agency prevented her from obtaining evidence to support her claim for damages by not providing her with guidance as to how to collect statements from co-workers. Complainant also argues that the April 27 final decision erred in finding discrimination solely with regard to the termination of her detail. We note, however, that such arguments are outside the scope of this decision as Complainant did not appeal the Agency's final decision on the merits of her claim and to the extent her instant appeal is also such an appeal on the merits, it is untimely. As such, we will address only the matter of remedies. ANALYSIS AND FINDINGS 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. (November 9, 1999) (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"). Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for post-Act pecuniary losses, and for non-pecuniary losses, such as, but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to character and reputation, and loss of health. See West v. Gibson, 527 U.S. 212 (1999). In this regard, the Commission has authority to award such damages in the administrative process. Compensatory damages do not include back pay, interest on back pay, or any other type of equitable relief authorized by Title VII. To receive an award of compensatory damages, complainant must demonstrate that he or she has been harmed as a result of 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), request for reconsideration denied, EEOC Request No. 05940927 (December 11, 1995); ("Guidance"). Non-pecuniary damages are available to compensate an injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because complainant is a victim of discrimination. 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 5 (July 14, 1992). The existence, nature, and severity of emotional harm must be proved. Id. In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by Complainant explaining how he was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). 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. Non-pecuniary 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 Agric., EEOC Appeal No. 01945652 (July 17, 1995). Here, we concur with the Agency's finding that Complainant failed to provide any evidence to support a claim for compensatory damages. The record shows that the April 27 final decision clearly instructed Complainant that she was required to submit objective evidence in support of her claim for damages within 45 days of receipt of the decision. The Agency provided her with several extensions of time to provide the requested evidence, but to date Complainant has failed to provide an affidavit, or any statements or evidence to support a claim for compensatory damages in this matter. CONCLUSION Based on the foregoing, we AFFIRM the Agency's final decision and direct the Agency to comply with the ORDER herein. ORDER To the extent it has not already done so, the Agency is ordered to take the following remedial actions within 60 days of the date this decision becomes final: 1) The Agency shall provide Complainant with the opportunity for a 120-day detail commensurate with her current grade and skill set. 2) The Agency shall conduct 8 hours of EEO training, with special emphasis on the anti-retaliation provisions, for all responsible management officials at its Washington, D.C. facility. 3) The Agency shall consider taking disciplinary action against the responsible management officials. The Agency shall report its decision to the Compliance Officer referenced herein. 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 for the reason(s) for its decision not to impose discipline. 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 evidence that corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Washington, D.C. 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 becomes final, 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 at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. 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 December 12, 2014 Date 1 The record shows that in his affidavit, Complainant's acting supervisor states that he terminated her detail when he learned that he "was being named in her [EEO] complaint...because [he] did not need the hassle." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120131489 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120131489