U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elbert H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140032 Hearing No. 530-2010-00281X Agency No. 200H00052010101242 DECISION On September 16, 2013, Complainant filed an appeal from the Agency's August 13, 2013, final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Telecommunication Specialist at the Agency's Medical Center facility in Wilmington, Delaware. On February 16, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), age (46), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was removed from his position, effective January 4, 2010. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on July 30, 2012, and issued a decision on April 24, 2013. In his decision, the AJ found that Complainant failed to establish a prima facie case of discrimination based on race, sex, color, or age, but successfully established a prima facie case of reprisal. The AJ further found that the responsible Agency officials articulated a legitimate nondiscriminatory reason for the removal decision, but that Complainant successfully established that the Agency's articulated reason was a pretext to mask unlawful retaliation for his prior EEO activity. The AJ ordered, among other things, that Complainant be reinstated as a Telecommunications Specialist and that he receive back pay and other benefits, $23,750.00 in non-pecuniary damages, and attorney's fees. The Agency subsequently issued a final order adopting the AJ's finding that Complainant proved that the Agency subjected him to retaliation as alleged, and agreeing to the remedies ordered by the AJ. The instant appeal from Complainant followed. 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 (MD 110). (Aug. 5, 2015). The allocation of burdens and order of presentation of proof in a Title VII case alleging disparate treatment discrimination is a three step procedure: Complainant has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination; the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its challenged action; and Complainant must then prove, by a preponderance of the evidence, that the legitimate reason offered by the employer was not its true reason, but was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The AJ found that Complainant failed to establish a prima facie case of discrimination based on race, sex, color, or age because he failed to identify any similarly situated probationary Telecommunications Specialists working for the same Supervisor (S: Caucasian, white, male, 47 years old) who were treated differently. In addition, Complainant failed to present any other evidence raising an inference of discrimination. Complainant, on appeal, has not presented a brief or explained specifically what it is he disagrees with in the final order and following a review of the record we discern no basis to disturb the AJ's finding that Complainant failed to establish a prima facie case of discrimination based on race, sex, color, or age. The AJ did find that Complainant established a prima facie case of reprisal because the record showed that in July 2009, Complainant told the EEO Manager (EEOM) that he had been subjected to a hostile work environment by a coworker and that he had already complained to S but had not received a satisfactory response. The AJ further found that EEOM contacted S about the matter on July 19, 2009, and that Complainant was terminated on January 4, 2010, less than six months later. The Agency adopted the AJ's finding and Complainant has not addressed the issue on appeal. We find no basis to disturb the AJ's finding that Complainant established a prima facie case of reprisal. The AJ next found that S articulated legitimate nondiscriminatory reasons for Complainant's removal when he testified that: Complainant was terminated for failure to perform duties to the level required for the position which included; failure to pay bills on time; failure to create . . . (purchase orders) and to establish [purchase orders] prior to services being rendered; failure to provide acceptable levels of customer support to the medical center; failure to support the transitioning of circuits under the [Agency] Network contract project; ignoring a report of an environmental alarm which resulted in damage to the medical center telecommunication systems; failure to follow orders, i.e. transferring work to others; and failure to notify chain of command of systems issues. [S] asserted that the performance problems began in the summer of 2009. AJ's Decision, p. 14. S further testified that during a snowstorm emergency at the facility, Complainant had been told by a number of people that a high temperature alarm was going off in the telecommunications room, but Complainant did not inform S about the alarm and S did not find out about it until the following day. See id., p. 8. The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden returns to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason was a pretext to mask discrimination. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 804. The AJ found that Complainant successfully made such a showing. Specifically, the AJ found that, while S testified at the hearing that Complainant's performance problems began in the summer of 2009, S had rated Complainant as "fully successful" or better on June 30, 2009, and the "performance appraisal reflects no references to any of the alleged multiple performance problems that [S] now asserts as the basis for the Complainant's termination." The AJ further noted that Complainant had received a Special Act Award from the Deputy Director (DD: male, race, color and age unknown) during the period his performance was supposedly problematic. The AJ next noted that the record showed that the facility had been faced with a severe snow storm during December 19-20, 2009. The AJ found that S's testimony that he only found out about the high temperature alarm when he came to work after the snowstorm was contradicted by testimony from both DD and Complainant's coworker (CW: female, Caucasian, white, age not provided) who testified that DD called S around 4:30 pm on December 19, 2009 and told him about the high temperature alarm himself. The AJ further found that S's "assertion that the Complainant's failure to get to the hospital during the snow storm as [sic] a basis for his termination is a sham, as was [S's] communication with D that Complainant was the IT 'on-call' person for that weekend," as the record showed that the on-call person was, in fact, CW, and not Complainant, and S admitted that, due to the severity of the storm, he did not expect Complainant to be on-site at the facility on December 19, 2009. AJ's Decision, p. 16. The AJ next found that S "admitted during the hearing that [EEOM] contacted him about the Complainant's prior EEO complaint in July 2009" thus contradicting his claim that he was unaware of Complainant's EEO activity. Id. Finally, the AJ found that Complainant, EEOM, CW, and DD were credible witnesses but that S was not, stating "his testimony is conflicting, confused and in many instances an outright prevarication." Following a review of the record we discern no basis for disturbing the AJ's findings. The record confirms that DD called S and told him about the overheating problem, and that CW was the IT person "on call" on the date in question. See Hearing Transcript, July 30, 2012 (HT 1), pp. 24-5, 35, 37, 47, 49, 84, 112. The AJ's findings in this regard are supported by substantial evidence. Regarding the AJ's credibility finding, the Commission has held that 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 MD 110, Chapter 9, at § VI.B. We find no such contradictory objective evidence and find no basis to alter the AJ's findings. Having found that Complainant was subjected to reprisal when he was terminated, the AJ ordered that Complainant be reinstated as a Telecommunications Specialist with back pay and benefits. Finding that Complainant did not request any, the AJ did not award pecuniary damages, but the AJ did award $23,375.00 in non-pecuniary compensatory damages. When discrimination is found, the agency must provide the complainant with full, make-whole relief to restore him as nearly as possible to the position he would have occupied absent the discrimination. See Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. United States Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). The Commission recognizes that precise measurement cannot always be used to reduce the wrong inflicted. Nonetheless, we believe that the burden of limiting the remedy rests with the agency. See Davis v. U. S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990). 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, 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. 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 said that the termination "was a terrible blow" and that "[i]t still chokes me up to this day." Hearing Transcript, July 31, 2012 (HT II), p. 153. He said it was a terrible embarrassment and that he would avoid other people, such as his in-laws, out of shame. "I felt like I had failed. It was a tough road. It was a lot of shame." Id. Complainant said his blood pressure increased, as did his weight. Id., pp. 155-56. Complainant's wife testified that he: started feeling depressed because he wasn't cooking dinner, wasn't folding clothes. He had actually stopped working out. He would usually work out just about every day. And he put on about 20 pounds. He's a fitness fanatic, I would say. And, like, at night he would just go down to the basement and sleep down in the basement. He wouldn't even come upstairs to the bedroom and sleep. I would find him downstairs in the morning when I would get ready to go to work. . . . It's very personal but we weren't intimate at all. You know, that's something that's real personal that I don't like to talk about. HT I, pp. 130-31. After careful consideration of the evidence of record, we find the AJ's award of $23,375.00 for non-pecuniary compensatory damages is appropriate. We note that the Commission has awarded compensatory damage amounts similar to the amount awarded in this case. See Parker v. Dep't of the Navy, EEOC Appeal No. 0720080062 (Feb. 26, 2009) (following discriminatory non-selection, complainant was awarded $25,000 in non-pecuniary damages where complainant endured emotional pain and suffering, humiliation, difficulty sleeping, weight gain, and loss of enjoyment of life); Utt v. U.S. Postal Service, EEOC Appeal No. 0720070001 (Mar. 26, 2009) ($25,000 in non-pecuniary damages awarded where complainant provided testimony that as a result of discrimination he suffered from stress, low self-esteem, difficulty sleeping and weight gain); Reid v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070077 (Nov. 13, 2009) ($20,000 in non-pecuniary damages awarded where complainant suffered damage to her professional reputation and emotional distress that affected her family due to discriminatory nonselections); Flowers v. U.S. Postal Service, EEOC Appeal No. 01A43114 (Oct, 7, 2004), req. for recon. den'd, EEOC Request No. 05A50243 (Jan. 11, 2005) ($20,000 in non-pecuniary damages awarded where the agency's failure to hire complainant resulted in sleeplessness, depression, emotional distress, anxiety, loss of enjoyment of life and strained family relationships). We conclude that an award of $23,375.00 will adequately compensate Complainant for the emotional harm he suffered as a result of the reprisal. Therefore, we affirm the AJ's award of compensatory damages here. 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 final order. ORDER (D0610) The Agency, if it has not already done so, is ordered to take the following remedial action: I. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall pay Complainant the sum of $23,375.00 in non-pecuniary compensatory damages. II. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall reinstate Complainant to his former Telecommunications Specialist, GS-11, position or a substantially similar position, retroactive to January 4, 2010. III. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. 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." IV. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall take corrective, curative, and preventative action to ensure that reprisal discrimination not recur, including but not limited to providing S with two three-hour training courses related to reprisal discrimination. The Agency should further consider taking disciplinary action against S. V. Within sixty (60) calendar days of the date this decision becomes final, the Agency shall pay $44,067 in attorney's fees ordered by the AJ, as well as $551.55 in legal costs. 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 of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Wilmington VAMC facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (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 (M0815) 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 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, 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 (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 November 13, 2015 __________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140032 2 0120140032