U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ethan M.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency. Appeal No. 0120170519 Agency No. RD-CF-2013-00420 DECISION On November 5, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's September 30, 2016, final decision concerning his 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. For the following reasons, the Commission AFFIRMS and MODIFIES the Agency's final decision (FAD). ISSUES PRESENTED The issue presented in this case is whether the Agency erred in not granting compensatory damages to Complainant following a finding that he was subjected to reprisal when he did not receive a performance award. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Civil Rights Director, GS-15 at the Agency's RD, USDA facility in Washington, D.C. On May 10, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. In May 2012, his first-line supervisor asked several probing questions regarding his EEO complaint against the Acting Deputy Administrator for Operations and Management for Rural Development; 2. From May 2012 to March 2013, his first-line supervisor referred to him as "Little Brother" in a derogatory context; 3. In August 2012, he was instructed by his first-line supervisor not to submit a staffing plan to fill his "critical needs" vacancies and he was denied multiple requests to hire, while other offices were granted waivers to hire beyond their staffing ceilings; 4. In October 2012, his second-line supervisor denied his request to meet privately to discuss his concerns about the withholding of resources to the civil rights office by his first-line supervisor and he was notified of the denial by his first-line supervisor; 5. From May 2012 to March 2013, his first-line supervisor subjected him to a higher level of scrutiny in the workplace; 6. From November 2012 to March 2013, he was denied participation in meetings with the Assistant Secretary for Civil Rights regarding civil rights matters; 7. In January 2013, his name and title were deleted from the weekly Under Secretary staff meetings; 8. In February 2013, he was not informed of the State Director's meeting and was denied information about the meeting upon request to his first-line supervisor; and 9. In or around February 2013, his first-line supervisor denied him a performance award for his Superior performance rating. The Agency's FAD, which was issued September 30, 2014, concluded that Complainant was subjected to reprisal with respect to claim 9, when his first-line supervisor denied him a performance award for his Superior Performance rating in or around February 2013. The Agency found that it did not articulate a legitimate, nondiscriminatory rationale for denying Complainant a performance award when all other employees with equivalent ratings received such awards. All other claims were denied. Complainant was advised of his right to submit a claim for compensatory damages. In his request for compensatory damages, Complainant maintained that he sustained ongoing emotional and physical distress as a result of the reprisal that he experienced from the Agency in February 2013, when he learned he would not receive a performance award. Complainant requested a total of $250,000 in nonpecuniary damages. He also requested past and future pecuniary losses in the amount of $75,000, for a total award of $325,000. To support his request for compensatory damages, Complainant submitted a letter dated February 3, 2015, which indicated that the Agency's reprisal caused him to endure three years of depression, anxiety, sleep disturbance, and headaches, among other conditions. He indicated that he was diagnosed with high blood pressure, ocular hypertension, and experienced an exacerbation of other existing conditions. Complainant also provided statements from witnesses, his physician, and family regarding his condition. The Agency responded to Complainant's request for compensatory damages on June 30, 2015. The Agency indicated that Complainant's request for nonpecuniary damages was inconsistent with EEOC awards for damages of similar type or composition. The Agency acknowledged that Complainant was entitled to the value of the performance award that he was denied as a result of reprisal. However, the Agency argued that Complainant provided no proof of out-of-pocket expenses, an exacerbation of his preexisting conditions, or emotional pain or loss of health as a result of the single count of reprisal documented in the FAD. The Agency argued that even assuming that Complainant's evidence was sufficient to support a damage award for nonpecuniary damages, the award should not exceed $1,000. According to the Agency, Complainant's supporting statements indicated that to the extent that he suffered emotional distress, it was alleged to have occurred before February 2013, when he was denied the performance award. Specifically, the statement by Complainant's treating physician indicated that Complainant experienced the sudden onset of hypertension, ocular hypertension, and anxiety in 2012 as a result of "work-related turmoil." Additionally, the statement from Complainant's wife indicated that she noticed his increase in medications in the fall of 2012, when she opened a drawer and found an abnormal amount of medications. Both occurred before the denial of his performance award in February 2013. Finally, the Agency pointed out that Complainant's friend alleged that he called him at the time of his car accident, in the fall of 2013, to tell him that he was denied a performance award, long after February 2013. Accordingly, the Agency found that Complainant lacked sufficient evidence to establish a nexus between the discriminatory denial of his performance award and his car accident and subsequent breakdown. CONTENTIONS ON APPEAL On appeal, Complainant contends, among other things, that the Agency has not made him whole. He maintains that the Agency has purposefully delayed processing his case, lowered the award that he deserved, failed to issue an award for his worsening medical conditions, omitted affidavits in support of his request for compensatory damages, and misrepresented testimonies in order to justify the analysis in the FAD on damages. Complainant requests that the Commission vacate the FAD and remand the case to the Agency with an Order to award proper compensation as correctly quantified by the EEOC. Complainant maintains that management is harassing and further retaliating against him, based on the instant complaint, by choosing to single him out and substantially delaying the EEO processing of his case, while continuing to adjudicate FADs on the merits and other FADs on damages. Complainant contends that when the FAD on Damages was issued it failed to award any damages. Complainant contends that he is owed interest on the performance award because the Agency has colluded to extend the amount of time to process his case. Complainant argues that (1) the FAD on damages should have made me whole by quantifying and awarding the correct amount, particularly after two years of keeping it on the desk, instead of subjecting him to wait longer; (2) there is no need to open the books and look into the awards of other people because it will further delay making him whole; (3) damages for harassment and retaliation instead of discussing "work related stress" should have been made; (4) the correlation between "the evidence shows that work-related stress" and his medical condition was "cumulatively caused by workplace stress" should have resulted in an award; (5) his worsening medical condition, as concluded in the FAD on damages, should not have been ignored and an award should have been given; (6) interests on the performance bonus should have been added; and (7) the car accident should have been recognized as occurring within the time period of management's retaliatory situation and, accordingly, damages should have been awarded. In response, the Agency contends, among other things, that Complainant succeeded on only one of his nine claims. The Agency agreed that Complainant is entitled to the full value of the performance award that was denied to him as a result of reprisal. Besides the value of the performance award, Complainant has not shown an entitlement to past or future pecuniary damages as a result of the single claim of reprisal that he experienced when he was denied the performance award. Complainant argues that he requires regular checkups from his treating ophthalmologist for ocular hypertension; his medications have increased; his car insurance premium increased after the car accident; and he spent money on job hunting expenses. However, the Agency maintains that his submission does not explain how these out-of-pocket expenses resulted from the single instance of reprisal in this case, when he was denied a performance award. 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"). At the outset, we note that on appeal there are no challenges to the finding of discrimination, nor the findings of no discrimination regarding claims 1 - 8. Thus, we AFFIRM these determinations. We further find that Complainant, as make whole relief, not compensatory damages, is entitled to a performance award in the amount that was awarded to the other employees who received an award in the same or similar position. Also, we find that Complainant is not entitled to interest on the award, as Complainant has not provided any authority to establish that there has been a waiver of sovereign immunity for the payment of interest on performance awards. See Aponte v. SSA, EEOC Appeal No. 0720080060 (Mar. 31, 2009); Burrell v. Department of Health and Human Services, EEOC Appeal No. 01911602 (September 27, 1991). On appeal, Complainant claimed that he was entitled to pecuniary damages for costs related to his car accident and insurance increase. Upon review, we find Complainant was not entitled to pecuniary damages for these matters. While Complainant requested pecuniary damages, we find there is no documentary evidence or receipts provided for any pecuniary losses specifically related to his failure to receive a performance award. Also, with regard to his contention that an award should have been given for his worsening medical condition, we find the evidence does not support this claim. Complainant health has deteriorated over a number of years beginning in 2012, before he was denied a performance award. Complainant has not established that the denial of the performance exacerbated the deterioration of his health. However, nonpecuniary damages are available to compensate an injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be presumed simply because Complainant is a victim of discrimination. Guidance at 5. The existence, nature, and severity of emotional harm must be proved. Id. We note that for a proper award of nonpecuniary damages, 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 Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago, 865 F.2d 848 (7th Cir. 1989)). In Carle v. Dep't of the Navy, the Commission explained that evidence of nonpecuniary damages could include a statement by Complainant explaining how she/he was affected by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993). Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. However, evidence from a health care provider is not a mandatory pre-requisite to establishing entitlement to nonpecuniary damages. Sinnott v. Dep't of Defense, EEOC Appeal No. 01952872 (September 19, 1996). After careful consideration of the evidence of record, where Complainant provided evidence from his family and friends of how he reacted to not receiving a performance award; including feelings of shame, embarrassment, withdrawing from family, friends, and activities, anxiety, sleep problems, and sadness, we find that an award of $1,000.00 or less is not consistent with prior Commission precedent. Likewise, an award of $325,00.00, is also not consistent with the Commission's prior cases. We find an award of $15,000 for nonpecuniary, compensatory damages is appropriate. This amount takes into consideration the severity of the harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See Complainant v. Dep't. of Justice, EEOC Appeal No. 0120142526 (July 26, 2016) (awarding $15,000 in nonpecuniary damages for retaliatory harassment to Complainant who experienced humiliation in front of coworkers, anxiety attacks, sleep problems, withdrawal from family); Norte v. Dep't of Energy, EEOC Appeal No. 01A24738 (Dec. 12, 2003) (awarding $15,000 in nonpecuniary damages for reprisal which left Complainant feeling humiliated, demeaned, degraded, and had overwhelming feelings of dread, foreboding, anxiety, sadness, helplessness, and hopelessness); Jones v. Dep't. of Commerce, EEOC Appeal No. 01A13671 (May 2, 2002) (awarding $15,000 for unlawful retaliation to Complainant who experienced depression, stomach pains, nausea, headaches, dizziness, and problems with family relationship, where Complainant's emotional distress caused in part not only by the Agency's retaliation but by nondiscriminatory work incidents as well). Accordingly, we conclude that an award of $15,000 will adequately compensate Complainant for the harm he suffered as a result of the Agency's discriminatory actions. 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 finding of discrimination with regard to the denial of a performance award. As make whole relief, Complainant is entitled to a performance award that was the same amount awarded to similarly situated managers. We also AFFIRM the Agency's finding of no discrimination regarding claims 1 - 8. We MODIFY the Agency's FAD regarding nonpecuniary compensatory damages because we find that Complainant has demonstrated that he suffered damages in the amount of $15,000 as a result of the Agency's discrimination. ORDER To the extent it has not already done so, the Agency, within 120 days of this decision, shall take the following actions: 1. Pay Complainant $15,000 in nonpecuniary, compensatory damages. 2. Provide Complainant with an amount equal to the performance award that he was denied as a result of reprisal. The Agency shall, in its compliance report, indicate the amount of the award and the method used to calculate it. 3. Provide a minimum of forty hours of in-person or interactive training to Complainant's supervisors (at the time of the discrimination) to ensure that Complainant's supervisors become aware and continue to be aware of their obligations, responsibilities, and rights under EEO law, including the right of employees to work in an environment free from reprisal discrimination and to use the EEO system to remedy perceived violations of EEO laws. 4. Consider taking appropriate disciplinary action against Complainant's supervisors. The Agency shall report its decision to the Compliance Officer referenced herein. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 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 (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 _10/12/18_________________ 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 0120170519 8 0120170519