U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barabara C.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Appeal No. 0120151687 Agency No. ARGORDON09FEB01400 DECISION On April 22, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's March 18, 2015, final decision concerning her entitlement to compensatory damages pertaining to 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. BACKGROUND At the time of events giving rise to this matter, Complainant was one of five complainants2 worked as Nurse Case Managers (also referred to in the record as Nurse Consultants) at the Agency's Warrior Transition Battalion ("Facility"), Eisenhower Army Medical Center in Ft. Gordon, Georgia (Facility). Complainant began working at the Facility on May 27, 2008, and was a GS-11 employee eligible for promotion to a GS-12 position. In the summer of 2008, two Lead Nurse Case Manager, GS-12, positions became vacant. The Lead Nurse Case Manager (Caucasian) offered one of the positions to a Nurse Case Manager (African American) ("Selectee 1") other than the complainants, but this individual declined the position. In August 2008, the Facility Director (Caucasian), at the recommendation of the Lead Nurse Case Manager, used a non-competitive direct hire process to select two other nurses ("Selectees 2 and 3") (both Caucasian) other than complainants for the Lead Nurse Consultant positions. Selectee 3 began working in her new position effective October 12, 2008, and Selectee 2 started effective January 18, 2009. Based on these events, Complainant with her co-workers each contacted the Agency's EEO office alleging discrimination. When the matter was not settled informally, on April 20, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (dark skinned), and reprisal for prior protected EEO activity when: 1. She was not provided the opportunity to compete for the Lead Nurse Consultant positions that were awarded non-competitively through the direct hire process. 2. On August 21, 2009, she and the other Nurse Case Managers were informed that they would no longer be centrally located and, instead, would be assigned to the buildings occupied by their respective companies, namely ALPHA, BRAVO and CHARLIE. They alleged that this move was in retaliation for complaining about the selection process in claim (1).3 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant and her coworkers failed to prove that the Agency subjected her to discrimination as alleged. Complainant and her coworkers appealed the Agency's decision. On appeal, complainants argued that they established a prima facie case of discrimination. They argued that the Agency's reasons for using the direct hire authority were false and, further, that the complainants were more qualified for the positions in question than Selectee 2 and 3. In addition, they noted that Selectee 1, the only selectee who was African American, was never interested in a leadership position. As such, complainants contended that the responsible Agency officials had no real expectation that she would accept the position in question. In addition, complainants argue that the Agency engaged in unlawful retaliation when complainants were relocated shortly after they filed their EEO complaints concerning their non-selections. Accordingly, complainants requested that the Commission find that the Agency's actions constituted discrimination and to reverse the Agency's final decisions. In EEOC Appeal No. 0120123054, 0120123055, 0120123056, 0120123057 & 0120123058 (Sept. 9, 2014), the Commission found that the Complainant and her coworkers had been subjected to unlawful discrimination with respect to claim (1) with respect to two Lead Nurse Consultant positions. There remains the matter of the remedy to be afforded Complainant and her coworkers. A job applicant has the right to be free from discrimination throughout the selection process. If the process is discriminatory at any phase, the applicant must be awarded full relief, i.e., the position retroactively, unless the employer shows by clear and convincing evidence that even in the absence of discrimination, the applicant would not have been selected. See Pryor v. U.S. Postal Service, EEOC Request No. 05980405 (Aug. 6, 1999). The Commission held that the Agency provided no evidence of any impediment to the selection of Complainant or her four co-workers. Further, the decision noted that the record does not support a finding that the selectees were better qualified than Complainant or the other coworkers. However, the remedy in this case is complicated by the fact that although the five complainants were discriminated against in the selection process by reason of race, only two would have been promoted in any event. Therefore, the Commission remanded the matter back to the Agency for a supplemental investigation and determination as to whom, among the five complainants, would have been selected for the two Lead Nurse Consultant positions but for the discrimination. The equitable relief awarded (retroactive placement and back pay) must logically flow from this determination. In addition, the decision held that all five complainants are entitled to consideration for compensatory damages for any harm proven to have resulted from their participation in a discriminatory selection process. Complainant was determined to have been one of the five who would have been selected for the position in question. The Agency also conducted a supplemental investigation regarding Complainant's entitlement to compensatory damages. Complainant provided an unsworn statement to the Agency stating that the discrimination had a negative impact on her life, both her work life and personal life. She has felt frustrated by the painful experience. She felt that she was perceived as a "bad person" and could not believe that skilled professionals with education, leadership and skills would be overlooked due to race and/or skin color. She noted that in her personal life, the discrimination has affected how she deals with her family and that she has to de-stress prior to engaging with her family. Complainant provided a letter from her co-worker and friend regarding how the discrimination affected Complainant. Complainant provided a note from her family doctor and other physicians stating that she was under their care. In her own statement, Complainant stated that she has been treated by physicians for insomnia, depression, anxiety, stress and hypertension. Based on the evidence provided, the Agency awarded Complainant $ 4,500.00 in non-pecuniary damages. This appeal followed without specific comment. ANALYSIS AND FINDINGS 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"). Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful discrimination or harassment 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. § 19814(b)(3). To receive an award of compensatory damages, a complainant must demonstrate that 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 Agric., 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 a complainant explaining how she was affected by the discrimination. A complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Upon review of the record, we find that the Agency's award of $ 4,500 is appropriate. We note that Complainant provided limited evidence regarding the harm she suffered due to the discrimination. Further, although Complainant noted that she has had medical issues since the discriminatory action, she did not provide evidence connecting her medical conditions to the discrimination. Complainant provided a single note stating that she experienced "job related stress" in 2008, several months before the discriminatory event. In addition, Complainant provided several notes stating that she was under the care of physicians without direct connecting her harm to the discrimination. Based on Complainant's statement and the statement of her friends, we find that the Agency's award is comparable to the Commission's case precedent in similar cases based on harm. See, e.g., Pryor v. U.S. Postal Serv., EEOC Appeal No. 01961884 (Feb. 5, 1998) ($5,000 for trouble sleeping, anxiety and lost weight for non-selection and failure to reinstate due to discrimination based on mental disability); Simmons v. Dep't of Veterans Affairs, EEOC Appeal No. 01A02306 (May 29, 2002) ($2,500 in non-pecuniary damages where harassment played a role in complainant's emotional distress); White v. Dep't of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997) ($5,000.00 in non-pecuniary damages based on emotional distress). Therefore, we find that Complainant is entitled to $4,500.00 in non-pecuniary damages. 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 and REMAND the matter in accordance with the ORDER below. ORDER (C0610) The Agency is ordered to take the following remedial action to pay Complainant $ 4,500 in 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." The report shall include supporting documentation verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 August 2, 2017 __________________ 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 Complainant was listed as "Complainant 1" in the Commission's prior decision decided in EEOC Appeal No. 0120123054, 0120123055, 0120123056, 0120123057 & 0120123058 (Sept. 9, 2014). 3 Claim (2) was an amendment to the original complaint. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151687 7 0120151687