U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kit R.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120140952 Hearing No. 450-2011-00148X Agency No. ARTCDOM10JAN0483 DECISION Complainant filed an appeal from the Agency's September 1, 2011, final order concerning her 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUE PRESENTED The issue presented is whether the Agency erred when it found that Complainant was entitled to $8,000 in non-pecuniary compensatory damages pursuant to a finding that she had been subjected to reprisal because of her EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an intern/trainee Human Resources Specialist, GS-7, at the Agency's Civilian Personnel Advisory Center (CPAC) at the Red River Army Depot in Texas. On February 6, 2010, Complainant filed an EEO complaint in which she alleged that the Agency retaliated against her because of her previous EEO activity under Title VII when, on January 6, 2010, she was told by her supervisor that her 2009 National Security Personnel System (NSPS) annual performance appraisal was downgraded from a Level 4 (exceeds expectations) to a Level 3 (valued performer) by the Chief of Staff at the Red River Army Depot. In a decision dated July 4, 2011, an Equal Employment Opportunity Commission Administrative Judge (AJ) found that Complainant did not prove that she was subjected to reprisal. The Agency adopted the AJ's finding in a final order. In an appellate decision dated March 15, 2013, the Commission found that Complainant had established by a preponderance of the evidence that she was subjected to reprisal. EEOC Appeal No. 0120120117. Accordingly, the Commission ordered the Agency to cease retaliating against Complainant; to change her 2009 NSPS appraisal to a Level 4 rating and provide any incentives or pay that accompanies this rating; conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages; provide 16 hours of EEO training to all management officials at Red River Army Depot; and consider taking disciplinary action against the Commander and Chief of Staff. During the supplemental investigation, Complainant submitted a statement to the Agency in which she requested $300,000 in "damages for the stress and family problems" that she suffered. In that statement, Complainant stated that the Chief of Staff made "snide and demeaning remarks" that caused her to feel angry, insecure, on-guard, and uptight, and which lowered her self-esteem and initiative. Complainant further asserted that another supervisor made comments about her work ethics and character that made her short-tempered, "put a damper on" her sex life and ability to maintain relationships. Complainant further asserted that she experienced high blood pressure, red eyes, overwhelming feelings of worthlessness, sleeplessness, and sleeping all day. Additionally, Complainant asserts that she experienced stress related to deadlines for providing information for her EEO complaint. Complainant also submitted statements from two of her children. Complainant's children reported that Complainant's job had turned her into a woman they no longer knew by making her not speak to them for months at a time; sparking her to use profanity/argue for no apparent reason; affecting her eating; and making her to sleep all day in a very dark house. Complainant also submitted a report from a physician dated June 10, 2013. In that report, the physician stated that Complainant reported sleeping approximately four hours per night; feeling tired all the time; experiencing fatigue; having a weak appetite; and having suicidal thoughts. The physician further noted that while in the military and stationed overseas, Complainant had been raped by two men who were assisted in the attack by a woman. The physician also noted Complainant experienced anger toward women because of the rape incident, and reported anger toward a Human Resources (HR) Specialist, who displayed what Complainant considered to be unsatisfactory interpersonal behavior when dealing with other veterans. CONTENTIONS ON APPEAL On appeal, Complainant mainly recounts details of a separate EEO complaint which alleged that she was subjected to ongoing harassment. Complainant maintains that she has worked in a hostile work environment for eight years. The Agency requests that we affirm its final decision. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Compensatory Damages When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. § 1981a(b)(3). To receive an award of compensatory damages, a complainant must demonstrate that he or she 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. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. 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. In this case, Complainant submitted a personal statement, a statement from her children, and a report from her physician as evidence to support her claim for non-pecuniary compensatory damages. However, after reviewing these documents, we find that Complainant generally failed to link the retaliatory appraisal to the symptoms and conditions she reported. For example, Complainant asserted that a Chief of Staff and supervisor engaged in harassing conduct that caused her to experience emotional pain and suffering. However, harassment is not the matter at issue here, only the 2009 performance appraisal. Further, Complainant's children generally asserted that Complainant was impacted by work conditions, but they did not mention the performance appraisal in this case. Likewise, documentation from Complainant's physician attributes Complainant's emotional distress to rape and conflicts with a coworker, but again, there is no mention of the appraisal. Thus, there is scant evidence connecting the retaliatory appraisal to emotional distress experienced by Complainant. However, our finding that Complainant was subjected to a retaliatory appraisal, coupled with Complainant's generalized assertion that she was distressed because of the appraisal, persuades us that the Agency's 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. This award is also consistent with our prior decisions. See 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), req. for recon. den., EEOC Request No. 0520130245 (Oct. 25, 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).2 CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding that Complainant is entitled to $8,000 in non-pecuniary compensatory damages. ORDER Within sixty (60) days of the date this decision becomes final, to the extent it has not already done so, the Agency shall pay Complainant $8,000 in non-pecuniary compensatory damages. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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 September 23, 2016 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 We note that on appeal Complainant also contends that the Agency has not disciplined the Commander and the Chief of Staff or changed her 2009 NSPA appraisal to a Level 4 rating, which violates our order in Appeal No. 0120120117. We note that our order directed the Agency to consider taking disciplinary action. If Complainant believes that the Agency has not complied with the Commission's order, she may petition the Commission for enforcement of the order through the process set forth at 29 C.F.R. § 1614.503(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140952 2 0120140952