Muhammad J. Rana, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency. Appeal No. 07200600561 Hearing No. 110-2005-00378X Agency No. HS 05-CIS-000857 DECISION Following its April 28, 2006 final order, the agency filed an appeal. On appeal, the agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of 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 REVERSES the agency's final order. BACKGROUND At the time of events giving rise to this complaint, complainant had been hired and was in the process of being trained as a Center Adjudication Officer at the agency's Federal Law Enforcement Training Center (FLETC) facility in Glynco, Georgia. 2 Complainant was part of a class of employees attending a seven-week training course at the Center. Complainant filed a formal EEO complaint on March 15, 2005, alleging that he was discriminated against on the bases of national origin (Pakistani) and religion (Muslim) when: From January 11, 2005 and February 25, 2005, complainant was subjected to a hostile work environment when the instructional content of a number of courses he was required to take included disparaging and factually inaccurate information about the Islamic faith and the Arabic people. At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and the AJ held a hearing on October 26, 2005. Thereafter, the AJ issued a decision on March 15, 2006. In her decision, the AJ found, among other things, that during a course known as "Arab Names/Arab Culture", the instructor distributed a handout to the class entitled "Core Beliefs of Islam: The Mindset of Violence." The conclusion of the handout stated that, "The fundamentalist Muslims, these are the ones who perpetrate terrorism. They have long beards and head coverings. Their goal is to practice Islam as Muhammad did. Though we call them radicals, they are practicing true Islam." The AJ further found that the instructor (I1) made many remarks about Muslims throughout the presentation and confirmed at the hearing that he told the class, "The goal of a Muslim is to convert you and kill you" and that "The Koran does not mention a God of love." Additionally, the AJ considered that I1 told the students that he (I1) personally "hold[s] American Muslims in a little higher esteem [than Muslims abroad]." The AJ noted that complainant was not the only student who felt I1's comments were inappropriate and had the purpose of degrading and demonizing followers of Islam. The evidence showed that the agency had received complaints regarding this course from prior students. Indeed, complainant's classmates complained as well. On February 23, 2005, eleven out of the fifteen members of the class submitted a letter to the Director of the training program (D1), requesting that he eliminate I1's class altogether, calling it "repulsive." The letter from the class to D1 stated: Our reasons for making this request is that we found the content, most of it, to be filled with stereotyping, unsubstantiated allegations, unrelated information and personal bias. [I1] continuously emphasized that all people of the Muslim faith would exhibit this particular behavior and share the one common goal of either converting everyone to their religion or eliminating them, in essence, they all had terrorist characteristics. The AJ further found that as a result of complainant asking I1 about his comments during class and confronting I1 about the allegedly factually inaccurate and damaging stereotypical course material, I2, who had observed the class and was involved in the development of the course content, drafted an official memorandum to I2's supervisor, on agency letterhead, suggesting that complainant be investigated for possible ties to terrorist organizations. The AJ found that nothing in the record showed that this memorandum had been rescinded or was in fact destroyed. Indeed, agency witnesses could not say for certain whether this memorandum was distributed to anyone other than I2's supervisor. The AJ concluded that complainant had been subjected to a hostile work environment on the bases of his religion and national origin. The AJ ordered the agency to provide complainant with the following relief. 1. Pay complainant for missed overtime, estimated at 200 hours for a total of $6,195.00 in lost wages. 2. Reimburse complainant for medical expenses and prescription medication incurred as a result of the January 2005 training program, to be determined by the AJ upon timely receipt of a current and complete medical expenses reimbursement application. 3. Pay non-pecuniary, compensatory damages to complainant in the amount of $50,000.00. 4. Remove and destroy any copies of the January 20, 2005 Department of Homeland Security Supervisory Memorandum from I2 regarding the potential ties between complainant and terrorist organizations from all agency files. The agency subsequently issued a final order rejecting the AJ's finding that complainant proved that he was subjected to discrimination as alleged. On appeal3, the agency argues that the harassment to which complainant was subjected as a result of I1's two-hour course was neither severe nor pervasive enough to rise to the level of discrimination based on either complainant's religion or his national origin. The agency argues that complainant is not a practicing Muslim and that because Pakistan is not in the Middle East, complainant cannot claim national origin discrimination as a result of offensive comments made with respect to Middle Eastern people. The agency also argues that the awards of overtime and compensatory damages are excessive considering complainant's pre-existing condition and the absence of any evidence that the amount of overtime awarded was actually available to complainant, had the discrimination not occurred. 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. Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). Complainant alleges that he was subjected to a hostile work environment. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment had the purpose or effect of creating an intimidating, hostile, or offensive work environment. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. §1604.11. We find that the AJ's decision is supported by substantial record evidence. We find that substantial evidence supports complainant's assertion that his religion was Muslim. Specifically, we find that complainant attended a mandatory course during which the instructor made numerous statements and comments offensive to complainant based on his religion (Muslim) and national origin (Pakistan) and that a reasonable person would have been so offended. We further find that although complainant informed I1 that some of his comments were inaccurate and that other comments were inappropriate and offensive based on the purpose of the course, I1 persisted in his presentation of course material that was later found by the agency's own internal investigation, to be "so poorly conceived that it often reinforced some of the worst stereotypes of Arab and Muslim culture and values."4 Compensatory Damages The Commission notes that damage awards for emotional harm are difficult to determine and that there are no definitive rules governing the amount to be awarded in given cases. A proper award must meet two goals: that it not be "monstrously excessive" standing alone and that it be consistent with awards made in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for all 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. 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. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 8, 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) ("Guidance"). A complainant is required to provide objective evidence that will allow an agency to assess the merits of her request for damages. See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). In determining compensatory damages, the Commission strives to make damage awards for emotional harm consistent with awards in similar cases. The Commission has held that evidence from a health care provider is not a mandatory prerequisite for recovery of compensatory damages. See Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases. See Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996). The AJ based her award of compensatory damages on the harm that complainant suffered. The AJ noted that a portion of complainant's distress originated six months prior to the FLETC course. The AJ observed that complainant sought care from a therapist from June 2004 through September 2004, for depression before he attended the FLETC course. In support of his claim for damages, complainant presented a notarized statement from his personal therapist which states that "[i]n reaction to these self-perceived hostile and antagonistic materials, [complainant] has begun to experience decrements in affective functioning." The AJ found that the Agency's discriminatory conduct, including, most notably, the internal memorandum suggesting that complainant may have ties to terrorism, contributed to and exacerbated complainant's pre-existing stress, sleeplessness, and depression and that $50,000 is an appropriate award under the circumstances. We concur with the AJ that the award is appropriate based on complainant's testimony that the harassment to which he was subjected caused significant stress, withdrawal from others at work, a sense of isolation, sleeplessness, some depression, embarrassment and humiliation. The Commission finds that this amount takes into account the severity and duration of the humiliation complainant endured in the presence of his classmates. We find this award accounts for the fact that the harm done by the discrimination may have been an aggravation of a pre-existing condition.5 We note the AJ's consideration of complainant's demeanor during the hearing wherein complainant was still so visibly upset by the recounting of the course content and comments made by I1, that he had to excuse himself from the hearing on more than one occasion to regain his composure. Furthermore, we find that this award is consistent with Commission awards in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC Appeal Number 01961483 (Mar. 4, 1999); Cain v. Department of Commerce, EEOC Appeal No. 07A40022 (Mar. 18, 2005). Overtime Pay At the hearing, complainant stated that he tried to work overtime after returning to his duty station at the end of the seven-week training at FLETC. Though he worked 10 hours of overtime the first week and some 20 hours the second week, complainant found that he could not tolerate the overtime because of the anguish and stress that he still felt. Complainant stated that his therapist advised him not to work any additional hours and to stay away from work as much as possible. Complainant stated that he could have worked an additional 300 hours in overtime, had he not been harassed. The AJ awarded complainant the sum of $6,195.00 based on an estimate of 200 overtime hours that complainant would have worked, absent discrimination. On appeal, the agency argues that complainant's claim for missed overtime pay is purely speculative and that complainant presented no objective evidence showing the amount of overtime available to his unit, no evidence showing his history of working 10 hours of overtime each week, and no evidence showing that complainant could work 10 hours overtime every week for an extended period of time. We find that the award of 200 hours of overtime is an appropriate estimate of the time that complainant would have worked in addition to his regular duty hours, absent the discrimination. We consider that complainant stated that he attempted to work such hours immediately following the end of the FLETC classes, but was unable to do so. We find the agency had not presented any evidence that complainant would not have been allowed to continue to work between 10 and 20 hours of overtime on a regular basis or that such overtime was not available. We find that the award of overtime represents a compromise between the hours complainant could have worked and the hours of overtime that complainant is likely to have worked.6 Other Relief We find that neither party appeals the remaining aspects of the AJ's order for relief. Therefore, we shall order the agency to comply with the remainder of the AJ's relief. We shall alter, however, the portion of the relief requiring complainant to submit evidence for reimbursement of medical expenses and prescription medication to the AJ. Given the present posture of the instant case, we shall give complainant the opportunity to submit such evidence to the agency so that the agency may make the appropriate pecuniary damage award for such medical expenses, if any. Accordingly, we REVERSE the agency's final decision finding no discrimination. We REMAND the matter to the agency to implement the AJ's order as slightly modified herein. ORDER The agency is ordered to take the following remedial actions: 1. Within 30 days of the date this decision becomes final, the agency shall pay complainant non-pecuniary, compensatory damages in the amount of $50,000.00. 2. Within 30 days of the date this decision becomes final, the agency shall pay complainant for lost overtime pay in the amount of $6,195.00. 3. Within 30 days of the date this decision becomes final, the agency shall notify complainant of his right to seek reimbursement for medical expenses and prescription medication incurred as a result of the January 2005 training program. Within 60 days of the date of receipt of complainant's reimbursement request, the agency shall determine the amount of complainant's medical and prescription expenses that were a result of the discrimination and shall reimburse complainant accordingly. 4. Within 60 days of the date this decision becomes final, the agency shall consider taking appropriate 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 forth the reasons for its decision not to impose discipline. If any of the responsible management officials have left the agency's employment, then the agency shall furnish documentation of their departure dates. 5. Within 180 days from the date this decision becomes final, the agency shall conduct EEO training on the issues of religious and national origin harassment for all agency employees responsible for development of the training program at issue in this complaint. 6. Within 30 days of the date this decision becomes final, the agency shall expunge from all agency files any of copies of the agency's January 20, 2005 memorandum regarding the potential ties between complainant and terrorist organizations. POSTING ORDER (G0900) The agency is ordered to post at its Federal Law Enforcement Training Center (FLETC), in Glynco, Georgia, 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. ATTORNEY'S FEES (H0900) 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 (K0501) 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 19848, Washington, D.C. 20036. 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 (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (R0900) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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 January 5, 2007 __________________ Date 1 Due to a new data system, the Commission has redesignated the instant case with the above referenced appeal number. 2 We note that the location of the FLETC is alternately listed as Brunswick, Georgia and in Glynn County ("Glynco") Georgia. 3 Complainant also filed a notice of appeal essentially requesting that the Commission reverse the agency's final decision and affirm the AJ's finding of discrimination and award of relief. 4 The report of investigation shows that the Arab Names/Arab Culture course described in the complaint was discontinued by the agency in the Spring of 2005, and that the agency's Office of Civil Rights and Civil Liberties ultimately undertook a review of the course materials after receiving complaints from class participants. 5 On appeal, complainant argues that his pre-existing depression was completely resolved by the end of September 2004, some months before the commencement of his training at the FLETC. 6 We note that the agency did not challenge the AJ's calculation of $6,195.00 being equivalent to 200 hours of overtime. ?? ?? ?? ?? 2 0720060056 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 10 0720060056