U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernetta B.1 Complainant, v. Betsy DeVos, Secretary, Department of Education, Agency. Appeal No. 0120161513 Agency No. ED20091800 DECISION On March 14, 2016, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's February 11, 2016, final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUES PRESENTED Whether the Agency's decision to deny Complainant compensatory damages was correct. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Education and Program Specialist at the Agency's Washington, D.C. facility. On March 26, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (61 at the time) when: 1. her request to change her 2007 fiscal year performance rating from "Successful" to "Outstanding" was denied; 2. she was not selected for the Education Program Specialist (GS-14) position announced in Vacancy Nos. OESE-2008-0019 and OESE-2008-0020 and the Analyst (GS-14) position announced in Vacancy No. OESE-2009-0029; and 3. her assigned duties were altered or changed. At the conclusion of the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ issued a decision finding no discrimination, without holding a hearing. Complainant appealed and the Commission determined Complainant established she was discriminated against when she was not selected for the position advertised in Vacancy Announcement No. OESE-9008-0020 only. The Agency filed a request for reconsideration, which was denied. See Complainant v. Dept. of Education, EEOC Appeal No. 0120120836, recon. denied, EEOC Request No. 0520150217 (August 18, 2015). As relief, the Commission ordered, among other things, that the Agency conduct a supplementary investigation into Complainant's entitlement to compensatory damages. The record reveals that the Agency provided Complainant with an opportunity to present evidence supporting her request for compensatory damages on September 14, 2015. Complainant responded, and requested that the Agency pay her $250,000.00 in nonpecuniary compensatory damages due to a loss of professional reputation and the inconvenience caused by the EEO complaint process. On November 30, 2015, the Agency afforded her a second opportunity to submit evidence, but Complainant informed the Agency she relied on her prior submissions and had no further evidence. After reviewing Complainant's submissions, the Agency issued a final decision on February 11, 2016, finding Complainant had not established any entitlement to compensatory damages. Complainant alleged that had she been selected for a GS-14 position she would have been eligible for further promotions and fellowships, however, the Agency found that Complainant did not present evidence of any vacancies she would have applied for, but could not due to her nonselection to a GS-14 position. Furthermore, Complainant maintained she suffered inconvenience and frustration due to the Agency's response to the complaint, which she alleged constituted a cover-up. However, the Agency found compensatory damages were not available due to irritation and stress caused by the EEO process itself. The Agency concluded Complainant had not submitted proof of any emotional distress or loss of reputation which was the direct or proximate cause of the discrimination. CONTENTIONS ON APPEAL On appeal, Complainant contends that she was inconvenienced and dismayed at the cover up of her nonselection, as well as her dissatisfaction with the agency's mishandling of her investigation. She asserts she was in a "state of disbelief" after her nonselection and suffered a loss to her professional reputation. The Agency did not file a response to Complainant's appeal. ANALYSIS AND FINDINGS To receive an award of compensatory damages, Complainant must demonstrate that he 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. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC Request No. 05940927 (December 8, 1995); EEOC's Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) ("Guidance"). Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses, and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory conduct. EEOC Notice No. 915.002 at 8. Objective evidence of compensatory damages can include statements from the complainant concerning his or her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, 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. See Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996), citing Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his or her burden in this regard. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Lawrence, EEOC Appeal No. 01952288. After a review of the record we find Complainant presented minimal evidence of her emotional distress caused by the discrimination. Complainant's declaration references some level of shock when she was not selected, as well as a loss of professional reputation. Complainant described dismay at what she referred to as an agency "cover up" of the discrimination and inconvenience suffered during the EEO process. In fact, the majority of Complainant's evidence deals with this inconvenience, which is not reimbursable as the Commission has specifically held that a complainant is not entitled to compensatory damages caused by the stress of participating in the EEO process. See Appleby v. Department of the Army, EEOC Appeal No. 01933897 (March 4, 1994). However, we do find that Complainant suffered from a "state of disbelief" when she was notified of her nonselection and asserts she suffered a loss to her professional standing because she was prevented from applying to higher graded positions or professioinal training because she was not a GS-14. Complainant provided limited evidence of the severity or duration of these injuries, however. Accordingly, we find $10,000.00 is a reasonable amount to compensate Complainant for her injuries. This amount takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See Butler v. Dep't of Agriculture, EEOC Appeal No. 01971729 (April 15, 1999) (ordering $7,500 in non-pecuniary damages based on Complainant's testimony regarding his emotional distress); McCorkle v. U.S. Postal Serv., EEOC Appeal No. 07A30109 (January 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 (March 19, 2004) (awarding $10,000 for Complainant who experienced sleeplessness and hostility, and felt like his world collapsed). The Commission notes 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). This award meets those goals. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE 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: 1) Within one hundred and twenty (120) days the agency shall tender to complainant $10,000.00 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." 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 8-23-2017 __________________ 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 01-2016-1513 2 0120161513