U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations Ivan V.1, COMPLAINANT, v. DANIEL M. TANGHERLINI, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, AGENCY. Appeal No. 0120120310 Agency Nos. 07-R6-JWA-19, 08-R6-JWA-12 May 15, 2014 DECISION On October 25, 2011, Complainant filed an appeal from the Agency's September 22, 2011 decision awarding compensatory damages. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's decision. BACKGROUND Complainant, a Contract Specialist, GS-1102-12, worked at the Agency's Federal Acquisition Service (FAS), Heartland Global Supply Center in Kansas City, Missouri. In two complaints, Complainant alleged that on the bases of age, sex and reprisal, he was not assigned duties commensurate with his position and grade; he was approached regarding being asleep at his desk while on duty; he received a notice of proposal to suspend for two business days; he received a notice of decision to suspend for two business days; and received a performance improvement notification (PIN). The Agency issued two decisions finding no discrimination on any claims, except for the issuance of the Performance Improvement Notification (PIN) for which the Agency found discrimination based on reprisal. As a remedy for its retaliatory conduct, the Agency, in relevant part, was to rescind the PIN issued on September 22, 2008, and compensate Complainant "for any compensatory damages he can prove that resulted from the discrimination." Complainant was also to "submit proof of any harm that he suffered to the Agency within 60 calendar days" of receipt of the Agency's finding of discrimination. Complainant appealed both of the Agency's decisions. In the consolidated complaints in * * * v. General Svcs. Admn., EEOC Appeal No. 0120092446 (June 9, 2011), we affirmed the Agency's finding of discrimination on the issue of the PIN and its finding of no discrimination on the other claims. We "slightly modified" the relief required. In pertinent part, we ordered the Agency to rescind the PIN and provide verification to Complainant that the PIN was removed from his personnel files maintained by the Agency. We also ordered that within 60 days of the decision becoming final, the Agency was required to: conduct a supplemental investigation regarding Complainant's entitlement to compensatory damages; give Complainant a notice of his right to submit evidence in support of his claim for compensatory damages; complete its investigation within 45 days from the Agency's receipt of Complainant's compensatory damages claim; and issue a decision. No request for reconsideration was filed by either party. In a letter, dated July 19, 2011, the Agency informed Complainant that, pursuant to the Commission's June 9, 2011 order in its decision, the Agency would be conducting a supplemental investigation regarding Complainant's entitlement to compensatory damages and that Complainant was being notified that he had the "right to submit any and all evidence he desired to support [his] claim for compensatory damages." In a letter sent by facsimile to the Agency on September 7, 2011, Complainant submitted a document entitled "Evidence of Damages Submitted by Complainant" (Statement of Damages). In the document, Complainant claimed as ""Damages Done," that there was no respect for the No Fear Act.1 Under that section in the Statement of Damages, Complainant addressed his qualifications, accomplishments, experience and knowledge for the supply and acquisition operations of the Agency and asserted how the Agency had deliberately and unjustifiably discriminated against him by keeping him from a GS-13 position for eight to 10 years, although the Agency had added new program hires and new positions. Complainant identified various positions that he had held from 1984 to 2008. He also noted that he had had a satisfactory performance until three weeks before the end of the performance rating period, when he was given a PIN. He was informed that his work was unsatisfactory and that he would not be given the yearly group award. For compensatory damages, Complainant requested $350,000 for 10 years of "determined and vicious" discrimination with no regard for the No Fear Act; for eight years of no GS-13 supply and acquisition warrant, for withholding the fiscal year 2008 group award and for having received no monetary recognition for excellent committee work. To the Statement of Damages, Complainant attached several pages including the Acquisition Center roster, coding markings, warrant level course requirements, and a salary table from the Office of Personnel Management. In a September 22, 2011 letter, the Agency informed Complainant that the information that he had provided did not support his claim for compensatory damages and, unless it received supplemental information from him by September 30, 2011, explaining the harm he suffered as a result of the PIN, it would issue its decision denying his claim for compensatory damages. In the letter, the Agency explained that compensatory damages could be awarded for past and future pecuniary losses and non-pecuniary losses. It explained to Complainant what kinds of objective evidence would constitute compensatory damages. The Agency also explained that statements from others, including family members, friends, health care providers, counselors, and clergy could address the outward manifestations or physical consequences of emotional distress. In an Expanded Supplemental Documentation for Compensatory Damages to Agency (Supplemental Documentation), Complainant re-submitted his Statement of Damages. He also recounted events in 2007 and 2008. He reiterated that his supervisor told him that the PIN would make him ineligible for the yearly bonus. Without the bonus, Complainant stated that it meant no holiday gifts for his disabled children, no automobile travel to be with relatives, no gifts for relatives and friends, and no gifts to charity. Complainant stated that his wife asked him whether his retirement would be taken away. Months later, she asked him the question about losing his retirement again and told him that they could not live on one Social Security check. Complainant stated that his family could not live off one Social Security check and he felt pressured. In the Supplemental Documentation, Complainant also stated that over the last 36 months, he and his wife and family, experienced suffering, severe emotional pain, mental anguish, loss of enjoyment of life, loss of health, depression, anxiety, marital strain, and humiliation. He enumerated feelings of distrust, anxiety, stress, and concern for what might happen next. He described what happened to him as "devastating" and as having occurred to a conscientious employee who wanted to serve his country. Complainant also stated that he had to work to keep his blood pressure down. He stated that the PIN was in effect from September 22, 2008 to September 22, 2011 and ongoing. Complainant related that over the past three years, the Agency had prevented him from executing the simplest form of acquisition, had communicated to new employees that he did not know his job and had co-workers avoid him and see him in have low regard. Complainant requested $355,000 in the Supplemental Documentation. He sought $250,161 (3 years x salary of $83, 387) for the 36 months the PIN was in effect. Because he was unable to submit a promotion application, he requested a GS-13, Step 3 salary of $85,763 with a simplified acquisition warrant level of $100,000 and compensation of $2,376. Complainant also requested $2,459.75, the bonus that he would have been given had he not been placed on a PIN. Complainant also asked compensation of $50,000 for defamation of character because new hires and current employees did not talk to him due to management's control and his not being assigned to teach new hires. In its October 25, 2011 decision, the Agency awarded Complainant a total of $3,756.82 in compensatory damages, consisting of a bonus in the amount of $1756.82 and $2,000 for damages, thereby reducing Complainant's total claim of $355,000. In its decision, the Agency rejected his claim of $250,161 for the 36 months that the PIN was allegedly in effect and also concluded that Complainant's statement delineating the suffering that he experienced over the 36 months, including severe emotional pain, mental anguish, loss of enjoyment of life, and loss of health, was not supported by any affidavits from his wife, physician, health care providers, co-workers or others. The Agency also noted that had Complainant been on a PIN for 36 months, he would not have received individual performance awards and organizational awards in 2009 and 2010. The Agency conceded in its decision that Complainant suffered damages between September 22, 2008 and December 21, 2008, the date when the PIN expired but only in the amount of $2,000. Addressing the annual group bonus claim, the Agency asserted that it was not obligated to pay an annual group bonus. It conceded in its decision that because other employees in Complainant's business area received bonuses in fiscal year 2008, the Agency would award Complainant $1,756.82 for the group award that he would have received in fiscal year 2008 but for the PIN. The Agency reported that the amount represented $339.00 for the Commissioner's Award and $1,417.82 based upon measures from Complainant's "business area." Regarding Complainant's denied claim for $2,376 because he was not able to submit a promotion application for a GS-13 Step 3 position with a salary of $85,763 and be given an acquisition warrant level of $100,000.00, the Agency noted that Complainant had provided no evidence that he had applied for, would have applied for, or submitted a promotion application. The Agency indicated that from January 8, 2008 through October 13, 2008, there were 25 vacancy announcements posted for FAS in the Kansas City commuting area and or FAS, Region 6. The Agency stated that it had no record that Complainant applied for those vacancies, leading it to presume that Complainant would not have applied for three other GS-13 vacancy postings for FAS between September 22, 2008, and December 21, 2008. With respect to its denial of Complainant's $50,000.00 for defamation of character, the Agency found no evidence or specific examples to support the alleged harm of providing instances when new hires and current employees would not talk to him because they were directed to do so by management. CONTENTIONS ON APPEAL On appeal, Complainant makes no new arguments on appeal, simply submitting documents previously provided to the Agency regarding his claim for compensatory damages. The Agency did not submit any arguments. ANALYSIS AND FINDINGS Section 102(a) of the Civil Rights Act of 1991 authorizes an award of compensatory damages as part of make-whole relief for intentional discrimination in violation of Title VII. See 42 U.S.C. § 1981a. Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 4. Pecuniary losses are out-of-pocket expenses incurred as a result of the employer's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Id. 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. at 5. To justify an award for emotional harm, there must be sufficient causal connection between the agency's illegal actions, and the complainant's injury. Id. at 5-6. The discriminatory act or conduct must be the cause of the emotional harm. Id. An award of compensatory damages for non-pecuniary losses should also reflect the nature and severity of the harm and the duration or expected duration of the harm. Id. Although damage awards for emotional harm can greatly vary, and there are no definitive rules governing amounts to be awarded, compensatory damage awards must be limited to the amounts necessary to compensate the complainant for actual harm, even if that harm is intangible. Id. at 7. It should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. See Carpenter v. Dep't 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. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). In Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993), the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how a complainant was affected by the discrimination. Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. The complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Upon review, the Commission modifies the Agency's decision by increasing the total awarded amount to $8,000 plus the Agency's award of $1,756.82 for the bonus. Complainant requested $250,161 for the 36 months he claimed the PIN was in allegedly in effect. The Agency awarded $2,000, reasoning that the PIN was in effect only from September 2008 until December 2008 when it expired. The evidence discloses, in a Memorandum to Complainant from the Deputy Center Director, dated August 24, 2011, that the PIN was removed from Complainant's file in August 2011. Although in its April 2009 decision finding discrimination, the Agency indicated that it would rescind the PIN, rhere is no evidence in the record that the discriminatory PIN was removed prior to August 2011. We therefore find that the discriminatory PIN remained in Complainant's file almost three years, from September 2008 through August 2011 when it was ultimately removed. As set forth earlier, Complainant recounted how the retaliatory action of the Agency had affected him. He described the retaliation as devastating and described himself as a conscientious employee who wanted to serve his country. Complainant reported a level of distrust and puzzled over the question of what was next. It is not unreasonable to conclude that the existence of the PIN in the file for nearly three years and the discrimination that led to its creation would haunt Complainant and cause such conditions as described by Complainant, including anxiety, depression, and marital strain, while the retaliatory document remained in his records.2 It is true that Complainant did not provide affidavits or medical records concerning the harm that he incurred as a result of the Agency's discrirnination. However, the Commission has previously held that neither evidence from a medical provider nor expert testimony in general is a mandatory prerequisite for recovery of compensatory damages for mental and emotional distress, and that evidence may include statements from the complainant. See Mayo v. Dep't of Treasury, EEOC Request No. 05990302 (July 21, 2000); Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence of compensatory damages can include statements from the complainant concerning emotional pain or suffering, inconvenience, mental anguish, injury to professional standing, injury to character or reputation and loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). Further, the Commission recognizes that the Agency provided barely minimal guidance to Complainant in its first notice to Complainant as to what constituted the type of relief that could be considered in a compensatory damages claim. See Hairston v. Dep't of Education, EEOC Appeal No. 0120103308 (Jan. 4, 2013) (compensatory damages awarded but noted that the agency provided a "strikingly bare minimal" amount of guidance to complainant in its compensatory damages notice and minimally complied with order). The Commission does note, however, that the Agency sent out an explanation of what constituted compensatory damages in September 2011, although it appears that Complainant was provided with the information with only a week within which to respond. We find that the Agency's award of $2,000 is insufficient to remedy the harm that the Agency's action caused Complainant as the result of the PIN. The award of $8,000 is adequate and takes into account the nature of the discriminatory action and the severity of the harm suffered by Complainant and is consistent with prior decisions. See Butler v. Dep't of Agriculture, EEOC Appeal No 01971729 (Apr. 15, 1999) (ordering $7,500 in non-pecuniary damages based on complainant's testimony regarding emotional distress); McCorkle v. U.S. Postal Serv., EEOC Appeal No. 07A30109 (Jan. 21, 2004) (finding that Complainant was entitled to $10,000 for headaches, loss of sleep, and general anxiety without medical evidence); Haven v. U.S. Postal Serv., EEOC Appeal No. 07A30135 (Mar. 19, 2004) (awarding $10,000 for Complainant who experienced sleeplessness and hostility, and felt like his world collapsed); Smith v. Dep't of Defense, EEOC Appeal No. 01984888 (Dec. 22, 2000) (granting $6,000 in non-pecuniary damages for retaliatory low performance appraisal where limited testimony established emotional pain and suffering which caused complainant to seek counseling); Hairston v. Dep't of Education, EEOC Appeal No. 0120103308 (Jan. 4, 2013) (awarding $5,000 in non-pecuniary damages for retaliatory low performance appraisal where complainant provided limited testimony that he experienced stress and anxiety that caused disruptive sleep patterns, headaches, and other physical problems), req. for recon. dea., EEOC Request No. 0520130245 (Oct. 25, 2013). The Commission next addresses the Agency's bonus award of $1,756. The Agency acknowledged in its decision that other employees in Complainant's "business area" had received group and Commissioner's bonuses. The Agency also conceded in its decision awarding compensatory damages that had Complainant not been issued a PIN, he would have received a bonus. Although Complainant requested $2,459.75, he presented no evidence to support a claim for the higher amount. Concerning Complainant's claim for $2,376 based on his inability to submit promotion applications, Complainant has not explained how he derived that number. Further, there is no evidence that Complainant was qualified for the positions and would have been selected but for the discriminatory retaliation or that he requested any promotion. That claim is therefore denied. In sum, although Complainant has requested over $355,000 in compensatory damages, the Commission has consistently held that non-pecuniary compensatory damages are designed to remedy harm and are not designed to punish the Agency for its discriminatory actions. The Commission generally awards large nonpecuniary awards in cases where a complainant establishes severe emotional harm or a long-term injury. Fonda-Wall v. Dep't of Justice, EEOC Appeal No. 0720060035 (July 28, 2009) (awarding $200,000 in non-pecuniary damages for a complainant where the Agency's retaliatory conduct was severely egregious and Complainant's harm was significant); Finlay v. U.S. Postal Serv., EEOC Appeal No. 01942985 (Apr. 29, 1997) ($100,000 in nonpecuniary damages for severe psychological injury over four years which was expected to continue for an indeterminate period of time). We have consistently recognized that while there is no precise formula to determine the amount of damages for non-pecuniary losses, an award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). Also, we have recognized 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). Here, Complainant has not established the type of harm or injury that would warrant awarding the large amount requested. Finally, to the extent that Complainant be raising subsequent acts of discrimination, he can pursue his allegations through an EEO Counselor. CONCLUSION The Agency's decision is AFFIRMED in part and MODIFIED in part. The Agency is directed to take action consistent with the Order below. ORDER Within 60 days of the date this decision becomes final and to the extent that the Agency has not done so, the Agency shall take the following remedial action: 1. Pay Complainant the amount of $9,756.82 (nine thousand, seven hundred and fifty-six dollars and 82 cents) in compensatory damages. The Agency shall also 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 factor 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 (T0610) 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 (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 Footnotes 1 The No Fear Act refers to the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 which became effective on October 1, 2003. It places additional duties upon federal agencies to adhere to their obligation to provide a work environment free of discrimination and retaliation. It is not relevant to computing an award of compensatory damages. 2 To the extent that Complainant also identified high blood pressure, Complainant has presented no evidence concerning whether it was a pre-existing condition and, if so, what part of that condition was caused by the discrimination. 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------