Antonia Looney v. Department of Homeland Security 07A40124, 01A53252 May 19, 2005 . Antonia Looney, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency. Appeal Nos. 07A40124, 01A53252 Agency Nos. I-97-0173, I-99-W081, I-98-W004, I-99-W089 Hearing Nos. 350-AO-8157X, 340-AO-3172X, 340-98-3780X DECISION The agency filed an appeal (07A40124), to the Commission after an EEOC Administrative Judge (AJ) issued an Order finding discrimination on the instant complaints. Complainant alleged discrimination on the bases of age (date of birth: November 27, 1947), race (Hispanic/Indian), religion (Lutheran), and reprisal when she was subjected to a hostile work environment when: (1) on April 28, 1997, she was suspended for two days; (2) on May 12, 1997, she was detailed to the San Diego Sector Border Patrol; (3) from May 12, 1997 through October 1998, her detail to San Diego, California was extended on seven different occasions; (4) on October 5, 1998, she was transferred to Tucson Sector Border Patrol; and (5) on November 3, 1998, she was issued a Notice of Five Day Suspension. After an investigation, complainant requested a hearing before an AJ. The AJ, after a hearing, issued a decision dated June 16, 2004, finding discrimination on the basis of reprisal for all five claims. The AJ's decision found that complainant was not discriminated against on the bases of age, race, or religion. The AJ ordered the following remedy: Complainant is awarded back pay and attendant benefits to be calculated by the agency, from the date of complainant's demotion through the date this case is decided. Complainant is awarded 104 days of sick leave pay and attendant benefits for the Assistant Regional Director Detention and Deportation position at the appropriate GS grade and step complainant would have occupied had she remained in Laguna Niguel, California. Complainant is entitled to back pay and lost wages for the 2 day suspension. Complainant is awarded $1,941.03 in relocation expenses. Complainant is awarded $195,000.00 in non-pecuniary compensatory damages. Complainant is awarded $89,612.60 in attorney's fees and costs. Complainant is awarded $441.84 in costs in reimbursement for obtaining the presence of a witness at the hearing. The agency, on July 30, 2004, issued a decision agreeing with the AJ's decision with regard to discrimination and part of the AJ's order for remedies. However, the agency appeals the amount of non-pecuniary compensatory damages. Since the damage award is the only matter appealed to the Commission, this decision will only address the agency's decision not to implement the AJ's decision with regard to non-pecuniary compensatory damages. Complainant subsequently filed an appeal (01A53252) to the Commission requesting compliance with the agency's decision to implement those provisions of the AJ award that are not being appealed by the agency. 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. The AJ ordered $195,000.00 in non-pecuniary compensatory damages due to the emotional suffering by complainant as a result of the retaliatory conduct. The AJ found that the agency's actions had permanent and substantially long term effects. The AJ found that complainant suffered from: bouts of crying; humiliation; depression; destruction of her spirit and confidence; feelings as if she had no purpose in life; fluctuating weight problems; rashes; anxiety; nightmares relating to her supervisor; difficulty coping with life; being tense and unable to sleep when she lays next to her husband in bed; and was disinterested in sexual intercourse. As a result of medication taken for the emotional distress, complainant felt clumsy, shaky, considered herself to be unsafe operating a motor vehicle, and a nervous wreck. Complainant's husband testified that complainant was extremely stressed, experienced mood swings, became sick more often, kicked the bed while sleeping, and was exhausted to the point were she remained in bed for twenty hours during the day. He testified that complainant is unable to deal with any negativity and is extremely self conscious about her communication skills, interaction with others, and loss of professional reputation and standing in the community. Complainant's friends testified to complainant's change in appearance, including significant aging in short amount of time, facial appearance being swollen and sunken, and complainant becoming withdrawn. Complainant's psychologist testified that complainant suffered from a significant amount of depression. The agency argues, on appeal, that the amount of non-pecuniary compensatory damages is excessive. The agency argues that there was no testimony clearly indicating how much longer complainant was expected to suffer from the ailments. Further, there is no testimony that she was hospitalized, became homeless, or suffered dissolution of the marriage, which the agency argues are common factors in awards of $100,000.00. The agency argues that the record of treatment does not reflect the type of deep, emotional trauma that higher awards are intended to address. Finally, the agency argues that the AJ did not consider the possibility that at least some of complainant's symptoms were caused by her allergies. The agency purposed, in its appeal, to lower the award to $75,000.00. The Commission has held that evidence from a health care professional is not a mandatory prerequisite for recovery of compensatory damages for emotional distress. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 April 18, 1996); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995); Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998). In determining compensatory damages, the Commission strives to make damage awards for emotional harm consistent with awards in similar cases. Insofar as complainant has submitted evidence via testimony of emotional distress, we note that the Commission has awarded compensatory damages in cases somewhat similar to complainant's in terms of harm sustained. Read v. Department of Homeland Security, EEOC Appeal No. 01A50353 (March 29, 2005)(awarded $130,000 in non-pecuniary compensatory damages after finding that complainant suffered from hives, severe stomach problems, heartburn, burning in her stomach and rectal bleeding, acid reflux, sleep disturbance, weight gain, fatigue, vertigo and feelings of guilt, and suicidal ideation after being sexually harassed); Booker v. Department of Defense, EEOC Appeal No. 07A00023 (Aug. 10, 2000), request for reconsideration denied, EEOC Request No. 05A01284 (Sept. 26, 2000) (awarded $150,000 in non-pencuniary compensatory damages after finding that agency discriminatorily reclassified complainant's position and issued an “Order to Restrain Contact”; harm to complainant included three attempts at suicide). After considering the nature of the agency's actions which involve detailing complainant to a location for an extended period of time to a location far from her home, in conjunction with the extensive testimony as to the harm to complainant, we find that the AJ did not err in awarding complainant $195,000.00 in non-pecuniary compensatory damages. Finally, we note that this award is not “monstrously excessive” and is consistent with the amounts awarded in similar cases. The Commission further notes that it has slightly modified the wording of the relief ordered and to include a provision requiring EEO training and a provision requiring the agency to consider disciplining the agency official responsible for the retaliation. With regard to complainant's appeal seeking compliance, we find that, given the Order below, the agency has new time lines in which to comply. Thus, complainant can not show that the agency is in noncompliance at this time and the instant appeal alleging noncompliance with the agency decision is premature. If the agency fails to comply with the Order herein then complainant may file a petition for enforcement with the Commission pursuant to 29 C.F.R. § 1614.503. The agency's decision finding discrimination on the basis of retaliation is AFFIRMED. The agency's decision with regard to non-pecuniary compensatory damages is REVERSED and we REMAND the matter to the agency to comply with the Order issued by the AJ, reprinted as modified, in pertinent part, herein. ORDER Within 30 days of the date this decision becomes final the agency shall take the following actions: The Agency shall determine the appropriate amount of back pay with interest and other benefits due Complainant for the period starting from complainant's demotion as referred to by the AJ pursuant to 29 C.F.R. § 1614.501, and shall pay that amount to Complainant. 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. Reimburse complainant for 104 days of sick leave pay and attendant benefits for the Assistant Regional Director Detention and Deportation position at the appropriate GS grade and step complainant would have occupied had she remained in Laguna Niguel, California. Complainant is entitled to back pay and lost wages for the 2 day suspension. Pay complainant $1,941.03 in relocation expenses (pencuniary compensatory damages). Pay complainant $195,000.00 in non-pecuniary compensatory damages. Pay complainant $89,612.60 in attorney's fees and costs. Pay complainant $441.84 in costs in reimbursement for obtaining the presence of a witness at the hearing. Post the attached NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (after being signed by the Agency's duly authorized representative) in conspicuous places, including all places where notices to employees are customarily posted, as specified herein. The agency shall consider taking disciplinary action against the individual responsible for making the agency's decision in this matter. If the agency decides to take disciplinary action, it shall identify in its compliance report the action taken. If the agency decides not to take disciplinary action, it shall set forth in its compliance report the reason(s) for its decision not to impose discipline. Conduct EEO training for supervisors and managers at Detention and Deportation, Western Regional Office of the Immigration and Naturalization Service in Laguna Niguel, California facility. The agency shall send evidence that they have complied with provisions 1 - 10 of this Order to the Compliance Officer as referenced herein. POSTING ORDER (G0900) The agency is ordered to post at its Detention and Deportation, Western Regional Office of the Immigration and Naturalization Service in Laguna Niguel, California 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. 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 (T0900) This decision affirms the agency's final decision/action in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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 (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 May 19, 2005 __________________ Date NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an order by the United States Equal Employment Opportunity Commission dated ____________ which found that a violation equal employment laws has occurred at the agency's Detention and Deportation, Western Regional Office of the Immigration and Naturalization Service in Laguna Niguel, California facility. Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. This facility was found to have discriminated against the complainant on the basis of reprisal. The facility was ordered to provide complainant pay and benefits lost, non-pecuniary compensatory damages, costs and attorney's fees. This facility will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all federal equal employment opportunity laws and will not retaliate against employees who file EEO complaints. This facility will comply with federal law and will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, federal equal employment opportunity law. Name and Title Date Posted: _____________________ Posting Expires: _________________ 29 C.F.R. Part 1614