U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Archie G.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0120141305 Agency No. P20110231 DECISION On February 10, 2014, Complainant filed an appeal from the Agency's January 7, 2014, final decision concerning the remedy provided following a finding that a violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., had occurred. 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 decision. ISSUE PRESENTED The issue presented in this case is whether Complainant was awarded the appropriate amount of compensatory damages and other make whole relief. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for a position as a Correctional Counselor at the Agency's Federal Bureau of Prisons facility in Houston, Texas. On August 6, 2012, the Agency issued a Final Decision (FAD) finding that Complainant was discriminated against on the bases of his national origin (Hispanic) and sex (male) when he was not selected for a Correctional Counselor position on December 1, 2010.2 The Agency ordered that Complainant be placed in a Correctional Counselor position and asked that the parties agree on compensatory damages, back-pay, and attorney fees. The Agency paid Complainant approximately $3,332.88 in back pay, plus interest without deductions for taxes. Back pay was awarded from December 1, 2010 to December 16, 2011, the date Complainant received a positive drug testing result; and resigned from his position on January 10, 2012, after the sample was retested and verified to contain cocaine. Attorney's fees and expenses in the amount of $6,476.25 were also paid. Also, occurring during this time period, on November 12, 2012, Complainant entered into a plea agreement in federal court acknowledging that he had had filed false income tax returns with the Internal Revenue Service in 2008 and 2009; The plea agreement stated that Complainant intentionally underreported his used car sales business income "by approximately $165,007 and other income of approximately $79,508 to his tax return preparer, which was intended to, and did, result in [Complainant] signing and filing U.S. Individual Income Tax returns - Forms 1040 for calendar years 2008 and 2009 that were materially false." On June 13, 2013, Complainant submitted his "Memorandum in Support of Complainant's Request for Damages" to the Agency. He sought $15,000.00 in past compensatory pecuniary losses which included the sale of his horse, trailer, ATV, and other personal items. He requested $15,000.00 in future compensatory pecuniary losses because he has been unable to find a job, and non-pecuniary compensatory losses in the amount of $125,000.00. His request for nonpecuniary damages was supported by affidavits from his wife and two children. Complainant claimed that as a result of the Agency's discriminatory action, he "experienced severe mood swings, emotional problems, severe stress, paranoia, emotional distress, loss of sleep, nervous break downs, and humiliation." He stated that he "also experienced anxiety attacks, depression, chest pains and palpitations, increased alcohol abuse, and elevated blood pressure." On July 15, 2013, the Agency responded indicating that Complainant failed to provide documentation to substantiate his sought-after $15,000 in past compensatory damages or the $15,000 sought in future pecuniary damages. Additionally, the Agency found that $125,000 in non-pecuniary compensatory damages was "monstrously excessive" and was not consistent with the amount awarded in similar cases. Further, the Agency maintained that Complainant did not submit any medical documentation and failed to demonstrate the duration of the alleged distress he suffered as a result of the Agency's discrimination. Moreover, the Agency noted that in addition to the Agency's discrimination, Complainant had other events going on, e.g., his plea agreement in federal court. The Agency offered Complainant $3,000 in non-pecuniary compensatory damages. Complainant filed the instant appeal. CONTENTIONS ON APPEAL On appeal, Complainant contends that during his twenty-year career with the Agency, he consistently placed money into his Thrift Savings Plan (TSP) Contributions & Gains true savings program. Complainant estimates that he paid $6,864.00 annually into these accounts. Under the TSP Contributions &. Gains true savings program, each dollar Complainant put into the savings program was matched by his employer, and the funds were then used to purchase stocks on the stock market. Complainant would have been able to place more than his annual $6,864.00 in the savings programs had he received the increased salary that a Correctional Counselor earned. Complainant seeks compensation for the additional benefits he would have received from the savings plan (based on the increased salary that Complainant was ultimately denied) at that time. Further, Complainant requests copies of the following documents: relevant employer pension information; employment benefits; lost insurance benefits; profit-sharing contributions; monies he would have placed into the TSP Contributions Y Gains true savings program; overtime pay; anticipated additional increases in pay; shift differentials; prejudgment interest; front pay; bonuses; and retirement benefits or any other benefit that could bear on the computation of Complainant's back pay award in this case. Complainant wants this information regardless of whether the Agency actually used the benefit in its computation of his back pay award in this case. Finally, Complainant requests documents related to all of the selections of the Responsible Management Official in this case. In response, the Agency contends that Complainant has brought forth no new evidence in support of his disagreement with the Agency's determination to award him $3,000 in non-pecuniary compensatory damages, and to deny in full his request for $15,000 in past pecuniary damages, and $15,000 in future pecuniary damages. According to the Agency, Complainant has not put forth any documentary evidence that he incurred any expenses as a result of his non-selection for the Correctional Counselor position back in December of 2010. Further, the Agency maintains that Complainant's claim that the Agency has prevented him from obtaining future employment in the law enforcement field is speculative at best, given that he tested positive for Cocaine during a random urinalysis conducted by the Agency, a criminal complaint was filed against him in federal district court for filing a false Federal Tax Return, and he entered into a plea agreement to this charge on November 5, 2012. Therefore, the Agency requests that the award of $3,000 in nonpecuniary compensatory damages be affirmed. The Agency also indicated that any monies sought by Complainant in relation to the sale of personal property in connection with this matter should be denied. The Agency explained that Complainant asserted that he had to sell personal property since December 2010, such as a horse, a horse trailer, an All-Terrain Vehicle, lawn equipment, appliances, jewelry, and a 2010 Lincoln Navigator; the Agency maintains that Complainant failed to demonstrate how the Agency's actions caused him to lose property arguably purchased before he was not selected for the position of Correctional Counselor on December 1, 2010. Although Complainant alleges he was not properly compensated for the salary difference from a Food Service Warehouse Supervisor (WS-4 grade) to a Correctional Counselor (GS-9 grade) from December 1, 2010 to December 16, 2011 in his submission to the Complaint Adjudication Office, the Agency contends that the Complainant's $3,840.68 in back pay and interest were calculated by the Agency in accordance with OPM guidelines. Complainant alleges he received an annual salary of approximately $58,000 in the year he worked in his previous position as a Food Service Warehouse Supervisor prior to his non-selection for a Correctional Counselor position on December 1, 2010. The record indicates however that Complainant was making approximately $67,869.24 in 2010. According to the Agency, it calculated the difference between Complainant's GS-level hourly rate ($34.17) and his Wage Grade hourly rate ($32.52), which was $1.65 difference per hour. Multiplying this amount by 80 hours came to $132.00 per pay period. The dates of December 1, 2010 through December 16, 2011, equaled 27 pay periods, or a total amount of $3,564.00 ($132.00 x 27). The Agency thereafter calculated the amount paid to Complainant for backpay. 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 Chapter 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 Non-Pecuniary Compensatory Damages In a claim for compensatory damages, a complainant must demonstrate, through appropriate evidence and documentation, the harm suffered as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm suffered; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934156 (July 22, 1994); Notice at 11-12, 14; Carpenter v. Dep't of Agriculture, EEOC Appeal No, 01945652 (July 17, 1995). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from the complainant and others, including family members, co-workers, and medical professionals. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (hereafter referred to as "Notice"); Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994); Notice at 13. A proper award should take into account the severity of the harm and the length of time that the injured party suffered the harm. See Carpenter, supra. Additionally, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. United States Postal Service, EEOC Appeal No. 01972555 (April 15, 1999), citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989). Finally, we note that in determining non-pecuniary compensatory damages, the Commission has also taken into consideration the nature of the Agency's discriminatory actions. See Utt v. United States Postal Service, EEOC Appeal No. 0720070001 (March 26, 2009); Brown-Fleming v. Dep't of Justice, EEOC Appeal No. 0120082667 (October 28, 2010). The record established that the Agency subjected Complainant to discrimination on the bases of national origin and sex when he was not selected for the Correctional Counselor position. The evidence also established that Complainant indicated through his testimony and the testimony of his wife and son that he experienced emotional upset due to the discrimination. We find however, that there was little to no evidence linking the emotional distress to the discriminatory non-selection rather than to other alleged acts. Complainant's evidence showed that most of his injuries could also be attributed to other problems he had at that time including, his IRS problems, being removed and then resigning due to cocaine use, and his plea deal in federal court. Accordingly, after careful consideration of the evidence of record, we find an award of $3,000 for non-pecuniary compensatory damages was appropriate. This amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See e.g., Struppler v. United States Postal Serv., EEOC Appeal No. 0120111119 (June 28, 2013) (Administrative Judge's award of $1,500 in non-pecuniary damages is reasonable and appropriate); Minor v. United States Postal Serv., EEOC Appeal No. 0120103711 (May 17. 2012) ($1,500 in nonpecuniary damages awarded where complainant provided non-specific evidence that denial of reasonable accommodation caused depression, anxiety, inability to function in daily life, and inability to participate in social activities but presented no medical evidence or testimony from friends or family); Lee v. United States Postal Serv., EEOC Appeal No. 0120091395 (Apr. 15, 2009) ($1,000 in non-pecuniary damages awarded where complainant testified that denial of requested schedule change caused stress and exacerbated his difficulty in sleeping); Resnick v. Dep't of Homeland Security, EEOC Appeal No. 07A20040 (Oct. 30, 2003) ($2,000 in non-pecuniary damages awarded for retaliatory non-selection where complainant claimed that she experienced sleeplessness and depression, complainant's evidence showed that most of her injury was due to other work-related problems, and there was little evidence linking the emotional distress to the discriminatory non-selection rather than to other alleged discriminatory acts). Accordingly, we find that the Agency's award of $3,000 will adequately compensate Complainant for the physical and emotional harm he suffered as a result of the discriminatory nonselection. Pecuniary Compensatory Damages Compensatory damages may also be awarded for pecuniary losses that are directly or proximately caused by the Agency's discriminatory conduct. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 8. Pecuniary losses are out-of-pocket expenses incurred as a result of the Agency's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Id. Future Pecuniary Losses Future pecuniary losses are losses that are likely to occur after resolution of a complaint. Id.at 9. Complainant indicated that he has not been able to obtain a job and as a result he requests $15,000 in future pecuniary damages. The evidence shows that this may have more to do with his being fired for drug use, and being charged with a federal offense than the Agency's discrimination. Consequently, we find that Complainant has not presented persuasive evidence which establishes that his inability to get a job is related to his discriminatory nonselection. Therefore, we find that Complainant has not demonstrated that he is entitled to future pecuniary damages. Past Pecuniary Losses: TSP Tax Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement. Id. at 8-9. Complainant asserted that he is entitled to additional money that he would have contributed to his TSP account. While this is generally true, evidence is needed to prove with some specificity the amount that Complainant regularly contributed to the TSP. In the instant complaint the evidence shows that the difference in pay between his prior position and the Correctional Counselor position was minuscule, about $1.65 difference per hour or $132.00 per pay period. It is also important to note that any contributions made would have been only from December 1, 2010 to December 6, 2011. Notwithstanding, we find that Complainant would be entitled to TSP payment for this period if he could support his claim of contributions. Based on our review of the record, we find that Complainant submitted insufficient evidence to support his request. He contends that he consistently placed part of his pay (Complainant estimates he paid $6,864.00 annually) into his Thrift Savings Plan (TSP) Contributions & Gains true savings program. Complainant argued that he would have been able to place more than $6,864.00 in the savings program had he received the increased salary that a Correctional Counselor earned. We find Complainant's claim however to be speculative as has not offered evidence to show that he actually contributed to the fund and the percentage that he contributed. Back Pay In accordance with 29 C.F.R. § 1614.501(c) and 5 C.F.R. § 550.805, back pay is awarded in discrimination cases where a Complainant has been subjected to a discriminatory personnel action that resulted in the withdrawal, reduction, or denial of all or part of the pay, allowances, and differentials otherwise due an employee. Personnel actions may include, for example, removal, suspension, demotion, failure to promote, failure to hire, and constructive discharge. In the instant case, we find that Complainant has not established that the Agency's calculations of his backpay were erroneous. As such, we find that his request for additional information on appeal is unnecessary. Finally, we find Complainant's request on appeal for information related to the nonselections made by the RMO to be immaterial to the matters at issue in this appeal. 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 decision. 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 _11/30/16_________________ 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 In reaching this conclusion, the Agency did not accept an Administrative Judge's finding of no discrimination. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141305 2 0120141305