U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxane C.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 0120170899 Hearing No. 570-2012-00494X Agency No. DIA201100033 DECISION On December 23, 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 final decision concerning her entitlement to compensatory damages pursuant to the Commission's finding that the Agency subjected Complainant to 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 reasons stated below, the Agency's FAD is MODIFIED. ISSUES PRESENTED The issues presented are: (1) whether Complainant is entitled to pecuniary compensatory damages; (2) whether the Agency's award of $21,000 in non-pecuniary compensatory damages is sufficient; and (3) whether Complainant is entitled to attorney's fees and costs. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Regional Desk Officer in the Agency's Office of Controlled Operations, Middle East/Africa Division in Washington, D.C. Complainant was selected for a Defense Liaison Officer position in Country X.2 Prior to reporting to her assignment, she needed to complete Joint Military Attaché School (JMAS) training, and she was scheduled to attend JMAS training from April 29 to July 29, 2011. On May 2, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female), perceived/actual disability (pregnancy/childbirth), and retaliation for prior protected EEO activity when: 1. On February 22, 2011, the Program Manager rejected three alternative suggestions Complainant offered that would allow her to complete the last two weeks of training for the JMAS course that was scheduled to begin on April 29, 2011, and end July 29, 2011; 2. On February 29, 2011, Complainant was informed that she would not be allowed to attend the scheduled training class "due to her condition" and was told, "We just don't feel comfortable with someone in your condition going through this training"; 3. On March 3, 2011, the Assistant Program Manager told Complainant that her pregnancy was a liability that prevented her from attending the training; 4. On March 15, 2011, Complainant was approached by several persons who congratulated her that she had reached a settlement agreement and had been placed in the August 2011 training class; 5. On March 14, 2011, Complainant's request for reasonable accommodation was denied; and 6. On August 22, 2011, Complainant's first day back to work after returning from maternity leave, she was directed to report to another office and denied admission into the JMAS training course beginning in late August 2011. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing. The Agency subsequently issued a final order fully implementing the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant appealed the Agency's final order to the Commission. In EEOC Appeal No. 0120142863 (July 19, 2016), we reversed in part the Agency's final order, finding that the preponderance of the evidence established that Complainant was subjected to sex and pregnancy discrimination when she was denied the opportunity to attend the April JMAS training and that she was subjected to reprisal discrimination when she was denied the opportunity to attend the August JMAS training. As relief, we ordered the Agency to: (1) offer Complainant a Defense Liaison Officer position in Country X or a mutually agreeable substantially equivalent position; (2) award Complainant the appropriate amount of back pay, interest, and other benefits that was lost in Complainant not being able to assume the Defense Liaison Officer position in Country X; (3) conduct a supplemental investigation into Complainant's entitlement to compensatory damages and issue a final decision on the amount of compensatory damages due Complainant; (4) provide training to the responsible management officials; (5) post a notice; and (6) consider taking appropriate disciplinary action against the responsible management officials. The Agency conducted its supplemental investigation into the issue of compensatory damages. Complainant provided an unsigned, undated statement requesting $30,000 in past pecuniary losses because the cost of living was higher in Washington, D.C. than in Country X, $20,000 in future pecuniary losses due to lost promotion potential, and $250,000 in non-pecuniary compensatory damages. Complainant also requested the restoration of three weeks of sick leave she took to recuperate mentally from the Agency's actions, stating that she took six weeks of sick leave following the birth of her child in 2011, whereas she took only three weeks of sick for the birth of her first child. According to Complainant, since February 2011, she has been ostracized at work because of perceptions that she was "litigation happy" or "overly sensitive." Complainant stated that, after giving birth in 2011, she underwent a tubal litigation because she felt that she needed to make a choice between advancing in her career and continuing to have children. Complainant averred that she has been under significant stress since February 2011, which caused her to become short-tempered and argumentative, causing a strain on her marriage. Complainant stated that she did not seek help from any health care professionals because she did not want to be seen as weak or incapable of dealing with stress. The record contains a September 2, 2016, email from Complainant's attorney to the EEO Investigator, which states that Complainant was deployed without consistent access to a telephone or any access to relevant documents. Complainant's attorney also noted, "because of security reasons, [Complainant] is unable to actually execute this as an affidavit. Are these responses sufficient as is, or would it be useful for me to do an affidavit explaining why this is not an affidavit?" The record also contains a September 3, 2016, email from the EEO Investigator to Complainant's attorney, which states that an affidavit explaining why Complainant was unable to provide an affidavit would be helpful. There is no evidence of additional communication from Complainant's attorney or an affidavit from Complainant's attorney in the record. On November 30, 2016, the Agency issued its final decision based on the supplemental investigation. The Agency awarded Complainant $21,000 in non-pecuniary compensatory damages and the restoration of three weeks of sick leave as "pecuniary damages." The final decision found that "Complainant did not experience nearly six (6) years of harassment as she contends in her claim for compensatory damages, but did experience about seven (7) months of stress due to discrimination and retaliation." The Agency determined that an award of $21,000 in non-pecuniary compensatory damages was consistent with Commission precedent, noting that the Commission had awarded between $3,000 to $60,000 in similar cases and that Complainant failed to provide any supporting documents or spousal or other witness testimony. The Agency found that Complainant's claim for $30,000 in pecuniary losses for loss of cost of living was unsupported and speculative. The Agency also found that the $20,000 in pecuniary losses for loss of promotion potential was not supported by any evidence in the record. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency has not paid her any back pay or attorney's fees or established that it complied with the Commission's Order by providing training and considering discipline for the responsible management officials. According to Complainant, she timely submitted her request for attorney's fees to the Agency. Complainant also contends that the Agency should not have reduced the award of non-pecuniary compensatory damages because of the lack of corroborating evidence since the EEO Investigator knew that Complainant was deployed and unable to provide any corroborating evidence. Complainant requests that the matter be remanded for a supplemental investigation or that the amount of non-pecuniary compensatory damages be increased. Complainant argues that the restoration of her sick leave was equitable relief, not pecuniary damages.3 The Agency makes no contentions in response to Complainant's appeal. ANALYSIS AND FINDINGS As a preliminary matter, we address Complainant's contention that the Agency has not informed her of its compliance with the Commission's Order to calculate and pay Complainant back pay and to provide training to and consider discipline against the responsible management officials. Our order directed the Agency to submit a report of compliance and stated that "the Agency must send a copy of all submissions to the Complainant." As Complainant and her attorney were notified on July 21, 2016, the Commission docketed the matter as Compliance No. 0620160734. On November 2, 2017, the Commission closed Compliance No. 0620160734 after receiving the Agency's compliance report. However, the Agency has not provided evidence that it has provided Complainant and her representative with a copy of its compliance submissions. Accordingly, we ORDER the Agency to provide Complainant and her attorney with a copy of all submissions to the Commission for Compliance No. 0620160734. If Complainant believes that the Agency is not in compliance with the Commission's order after reviewing the Agency's submission, she may file a petition for enforcement. As a further preliminary matter, we address Complainant's request for a supplemental investigation on compensatory damages. Although Complainant indicated she had limited access to documents and was apparently unable to execute an affidavit, we find that, despite the EEO Investigator's statement that it would be helpful, Complainant's attorney failed to provide an affidavit or other evidence explaining the circumstances. Furthermore, Complainant has provided no additional evidence on appeal. Accordingly, we decline to remand the matter for a supplemental investigation, and this decision will address the Agency's award of compensatory damages and the issue of attorney's fees. Compensatory Damages Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes her claim of unlawful discrimination may receive, in addition to equitable remedies, 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). 42 U.S. C. § 1981a(b)(3). 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. The particulars of what relief may be awarded, and what proof is necessary to obtain that relief, are set forth in detail in EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought. Id. at 11-12, 14; Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14. In Carle v. Dep't of the Navy, the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Upon review, we find that Complainant failed to provide any evidence to show that she is entitled to pecuniary damages. As such, we turn to Complainant's claim for non-pecuniary compensatory damages. Complainant believes that she is entitled to a non-pecuniary compensatory damage award in the amount of $250,000. The Agency awarded Complainant $21,000. Taking into account the evidence submitted by Complainant, we find that $35,000 is more appropriate than the $21,000 awarded by the Agency. We find that the Agency erred in determining that Complainant was subjected to only seven months of harm, rather than the six years alleged. Complainant stated that she was under stress from February 2011 to present that affected her marriage and that she decided to undergo a tubal ligation to prevent further disruptions to her career. Although we do not find that Complainant established causation between the discrimination to which she was subjected and her decision to undergo tubal ligation, we find that Complainant established that she was subjected to emotional harm that lasted longer than her pregnancy and maternity leave. We agree with Complainant that the Agency's award did not adequately account for the duration of her harm. As such, we find that an award of $35,000 is supported by the evidence, is not "monstrously excessive" standing alone, and is consistent with Commission precedent. See Nannie D. v. Dep't of the Army, EEOC Appeal No. 0720150021 (April 28, 2016) ($35,000 in non-pecuniary damages where for 14 months complainant suffered from stress, anxiety, fear of losing job, and trouble sleeping, and became easily frustrated); Complainant v. Tennessee Valley Authority, EEOC Appeal No. 0120133384 (Sep. 15, 2015) ($35,000 in non-pecuniary damages where for three years complainant felt humiliated and degraded); Castillo v. Dep't of the Interior, EEOC Appeal No. 0119990818 (July 16, 2002) ($35,000 in non-pecuniary damages where for three years complainant suffered depression, anger, alienation, humiliation, embarrassment, and loss of status). Attorney's Fees Complainant alleges that the Agency has not processed her September 19, 2016, petition for attorney's fees and costs. Title VII authorizes the award of reasonable attorney's fees, including for an attorney's processing of a compensatory damages claim. 29 C.F.R. § 1614.501(e). To establish entitlement to attorney's fees, Complainant must first show that she is a prevailing party. Buckhannon Bd. and Care Home Inc. v. W. Va. Dept. of Health and Human Resources, 532 U.S. 598 (2001). Black's Law Dictionary 1145 (7th ed. 1999) defines "prevailing party" as "[a] party in whose favor a judgment is rendered. . . [or] one who has been awarded some relief by the court . . . regardless of the amount of damages awarded." Buckhannon Bd. and Home Care, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598, 602 (2001). Thus, a prevailing party for this purpose is one who succeeds on any significant issue, and achieves some of the benefit sought in bringing the action. Davis v. Dep't of Transp., EEOC Request No. 05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)). A finding of discrimination under Title VII of the Civil Rights Act raises a presumption of entitlement to attorney's fees. 29 C.F.R. § 1614.501(e). Complainant was a prevailing party pursuant to our finding of discrimination in EEOC Appeal No. 0120142863, so we ORDER the Agency to process Complainant's September 19, 2016, petition for attorney's fees and costs. We note that Complainant is also a prevailing party with respect to the instant appeal and that she is accordingly entitled to submit a petition for attorney's fees and costs incurred in relation to the instant appeal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision concerning compensatory damages and REMAND the matter for further processing in accordance with this decision and the ORDER below. ORDER To the extent that it has not already done so, the Agency is ORDERED to undertake the following remedial actions: 1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide a copy of all documents submitted in relation to Compliance No. 0620160734 to Complainant and her representative. We note that this obligation is ongoing, so the Agency shall provide copies of all further documents submitted to Complainant and her representative. 2. Within sixty (60) calendar days of the date this decision is issued, the Agency shall pay Complainant $35,000 in non-pecuniary compensatory damages, less any amounts already paid to Complainant as non-pecuniary compensatory damages. 3. Within thirty (30) calendar days of the date this decision is issued, the Agency shall issue a decision determining the amount of attorney's fees or costs due based on Complainant's September 19, 2016, petition for attorney's fees and costs. The Commission notes that Complainant can submit a request for attorney's fees and costs incurred related to the instant appeal, and the Agency is ordered to process any such request in accordance with 29 C.F.R. § 1614.501(e). The Agency shall provide an additional compliance report regarding these matters, as ordered below, with a copy to Complainant. ATTORNEY'S FEES (H1016) 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 the date this decision was issued. 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 (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 12-29-2017 __________________ 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 The location of this assignment has been redacted. 3 Complainant is correct on this point. However, we find that the Agency classifying this equitable relief as pecuniary damages constituted harmless error. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170899 2 0120170899