Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120131546 Agency No. FS199800030 DECISION On March 5, 2013, Complainant filed an appeal from the Agency's February 22, 2013, final decision concerning compensatory damages following a finding of discrimination in his equal employment opportunity (EEO) complaint. In his complaint, Complainant alleged 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 REVERSES the Agency's final decision. BACKGROUND At the time of the events giving rise to this complaint, Complainant worked as a Seasonal Forestry Technician in the Agency's Region 2, Bighorn National Forest, Buffalo/Tensleep Ranger District. On January 30, 1999, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), and reprisal for prior protected EEO activity when: 1. His supervisors spoke to him in a disrespectful and demeaning manner; 2. The Agency failed to take action when female co-workers stared at him while he was bathing; 3. In August 1998, he was terminated; and 4. On July 19, 1998, the Agency lied about his back injury so his Office of Worker's Compensation Program (OWCP) claim would be denied. At the conclusion of the investigation, the Agency issued a final decision finding that Complainant had been subjected to retaliation with respect to his termination only. In so finding, the Agency applied a "mixed-motive" analysis. Complainant thereafter filed an appeal of that decision to the Office of Federal Operations. See Armijo v. Dept. of Agriculture, EEOC Appeal No. 0120110109 (September 6, 2012). On appeal, OFO modified the Agency's decision, and found that Complainant had been terminated solely because of reprisal. The Commission ordered a supplemental investigation into Complainant's entitlement to compensatory damages, back pay and other equitable relief. The record reveals that Complainant was mailed letters on October 10, 2012 and November 30, 2012, requesting evidence to support his claim for compensatory damages. Complainant responded on December 20, 2012 and requested that he awarded "make whole" relief including worker's compensation benefits since August 1998, reinstatement, back pay with interest and $4,000,000.00 in compensatory damages. In response to this statement in January 2013, the Agency filed "Agency's Response to Complainant's Claim for Damages" and determined that the Commission was without authority to award OWCP benefits. The Agency further declined to order reinstatement because the Commission had not ordered that Complainant be reinstated following the finding of discrimination. In that regard, the Agency also noted that Complainant has been incarcerated since March 1999 and was therefore not available for reinstatement. Finally, the Agency noted that Complainant had been issued, and acknowledged receipt of, back pay in the amount of $9,344.22. Finally, it found that at most, Complainant was owed between $500.00-$1,000.00 in nonpecuniary damages. On February 22, 2013, the Agency issued a final decision finding that Complainant failed to present any documentation, affidavits, receipts or other evidence that that he was owed compensatory damages due to the Agency's termination. As a result, the agency found Complainant was not owed any compensatory damages for his unlawful termination. CONTENTIONS ON APPEAL On appeal, Complainant asserts that he is totally disabled and submits documentation from his criminal case. ANALYSIS AND FINDINGS Compensatory damages may be awarded for losses and suffering due to the discriminatory acts or conduct of the Agency and include past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the Agency's discriminatory conduct. See Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992); Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Non-pecuniary losses are losses that are not subject to precise quantification, including 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. Id. To receive an award of compensatory damages, a Complainant must demonstrate that he 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. Dept. of the Navy, EEOC Appeal No. 01934157 (July 22, 1994); Enforcement Guidance at 11-12, 14. After a review of the record, we find only minimal evidence that Complainant suffered emotional or physical distress due to the unlawful and retaliatory termination. Complainant submitted no affidavits or statements from family members, physicians or clergy. His own statement provides little evidence as to how the discrimination affected him. Complainant only states that he was unhappy with the treatment he received by the Agency and as a result, his health and welfare were affected. In light of the limited evidence of damages, we find an award of $2,000.00 is appropriate in this case. See Seda v. U.S.P.S. EEOC Appeal No. 0720050090 (Mar. 20, 2007) (Complainant was entitled to $1,500.00 in non-pecuniary compensatory damages for reprisal discrimination where Complainant provided only limited and non-descriptive testimony concerning emotional pain). Complainant provided no evidence of pecuniary damages. Furthermore, we decline to award Complainant any monies related to his OWCP claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's decision on compensatory damages and direct the Agency to take action in accordance with the ORDER below. ORDER (C0610) The Agency is ordered to take the following remedial action: 1. Within 120 days from the date this decision becomes final, the Agency shall pay Complainant $2,000.00 in non-pecuniary compensatory damages. 2. 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 supporting documentation verifying that the corrective action has been implemented. 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 (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 (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 June 10, 2015 __________________ Date 2 01-2013-1546 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120131546