U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Onie R.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 0120141870 Hearing No. 570-2012-00360X Agency No. EU-FY11-125 DECISION On April 17, 2014, Complainant filed an appeal from the Agency's April 7, 2014, final order concerning relief for her equal employment opportunity (EEO) complaint where the Agency was found to have engaged in reprisal 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 MODIFIES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant Principal at the Agency's Vincenza Elementary School facility in Vincenza, Italy. On October 12, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of her national origin, sex, age, and in reprisal for prior protected EEO activity when on August 12, 2011, during the European Administrators' Conference in Frankfurt, Germany, the District Superintendent made derogatory comments about Turkish people and stated, among other things, that "EEOs are crap. Here's what happens. They won't win because there's nothing to support it. They'll drop it because they don't have evidence and don't want to spend money for a lawyer. Senior citizens are afraid to retire, economically afraid. EEO people are crazy people. Don't be afraid of EEOs. They'll go away." At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ assigned to the case issued a decision without a hearing finding no discrimination and the Agency's final order adopted the AJ's decision. On appeal, the Commission reversed the Agency's final order, determining that the District Superintendent's comments were reasonably likely to deter Complainant or other managers present at the conference from either personally engaging in the EEO process or keep them from carrying out their obligations to insure vigorous enforcement of the policy of equal employment opportunity. Accordingly, the complaint was remanded for the Agency to award relief and to conduct a supplemental investigation into Complainant's entitlement to compensatory damages. EEOC Appeal No. 0120132212 (Nov. 8, 2013). In its April 7, 2014, final order, the Agency awarded Complainant $500.00 in nonpecuniary, compensatory damages. The Agency also awarded Complainant $325.00 in pecuniary compensatory damages. On appeal, Complainant argues that the Agency's award is insufficient and requests that the Commission increase the award of nonpecuniary, compensatory damages to at least $25.000.00. Complainant does not appeal the Agency's award of pecuniary damages. ANALYSIS AND FINDINGS Section 102(a) of the 1991 Civil Rights Act authorizes an award of compensatory damages for 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. In this regard, the Commission has authority to award such damages in the administrative process. See West v. Gibson, 527 U.S. 212 (1999). 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. Id.; 42 U.S.C. §1981(b)(3)D). Compensatory damages may be awarded for past (out-of pocket) and future (likely future out-of-pocket) pecuniary losses, and, as in the instant appeal, also for non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. Enforcement Guidance: Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (Guidance on Compensatory Damages), EEOC Notice No. 915.002, at 8 (July 14, 1992). The amount of an award of compensatory damages is based on the following factors: (1) severity of the harm; (2) duration of the harm; and (3) extent to which the harm was caused by discriminatory conduct. See Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recon. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Guidance on Compensatory Damages, at 11-12, 14. The reasonableness of an amount of compensatory damages is measured by whether the award is "monstrously excessive" and consistent with awards in similar cases. Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). Complainant is required to provide objective evidence that would allow the Agency to assess the merits of her request for damages. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant's own testimony, along with the circumstances of a particular case, can suffice, however, to sustain her burden in regard to harm. Sinott v. Dep't of Defense, EEOC Appeal No. 01952872 (Sept. 19, 1996). Objective evidence of compensatory damages can include statements from the complainant concerning his emotional pain or suffering, inconvenience, mental anguish, marital strain, loss of enjoyment of life and self-esteem, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, or other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle, EEOC Appeal No. 01922369). Here, the majority of Complainant's evidence addresses her pre-existing conditions and her contention that the Agency's reprisal discrimination exacerbated these conditions. Specifically, Complainant provided extensive medical documentation regarding osteoarthritis, hypertension, and morbid obesity, all of which predate the discriminatory act at issue. The record also shows that Complainant acknowledges that her anxiety and stress began as early as 2009, and that she has filed several other EEO complaints alleging that she has been subjected to a hostile work environment which predate the Agency's retaliatory discrimination. Although Complainant contends that the Agency's retaliatory act exacerbated her preexisting medical conditions of osteoarthritis, hypertension, or morbid obesity, we find that she failed to show that the Agency's actions were either the direct or proximate cause of this harm. Complainant also provided evidence, however, that the Agency's reprisal discrimination resulted in anxiety, feelings of intimidation and disrespect, despondency, sleep loss, fatigue, difficulty in concentrating, hypersensitivity, feelings of guilt, fear that her EEO complaint would result in a total loss of opportunities for promotion and credibility as a manager, impairment of relationships, reduced social interaction, and a loss of confidence. Accordingly, while the Agency awarded Complainant $500.00 in nonpecuniary, compensatory damages, we find that a more appropriate amount to remedy Complainant for harm suffered as a result of the reprisal discrimination is $3,000.00. See, e.g., Webster v. Dep't of Defense, EEOC Appeal No. Appeal No. 0120102276 (Sept. 20, 2011) (awarding $4,000 in compensatory damages for the injury to his professional reputation and his increased level of distress following per se reprisal); Pailin v. Dep't of Defense, EEOC Appeal No. 01954350 (Jan. 26, 1998) (awarding $2,500 in nonpecuniary, compensatory damages to a complainant suffering from weight loss, fatigue, lack of motivation, sadness, and diminished self-esteem for approximately nine months). This award takes into account the nature of the Agency's actions, the degree of harm Complainant experienced, and the amount of supporting evidence Complainant offered. CONCLUSION Accordingly, we MODIFY the Agency's award of nonpecuniary, compensatory damages. The matter is REMANDED to the Agency for payment of compensatory damages in accordance with the Order herein. ORDER To the extent it has not already done so, within 60 days of the date this decision becomes final, the Agency shall pay Complainant $3,000.00 in nonpecuniary, compensatory damages and $325.00 in pecuniary damages. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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 (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 (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 (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 June 16, 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 0120141870 2 0120141870