U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations Monroe C.1, COMPLAINANT, v. RAY MABUS, SECRETARY, DEPARTMENT OF THE NAVY, AGENCY. Appeal No 0720130020 Hearing No. 430-2008-00513X Agency No. 08-40025-00356 June 18, 2014 DECISION Following its April 8, 2013, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission clarify the decision of an EEOC Administrative Judge (AJ). Specifically, the Agency points out that the substance of the AJ's decision found discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq; however, the ultimate finding was of no discrimination. On May 10, 2013, Complainant filed his own appeal, addressing the AJ's remedies. For the following reasons, the Commission REVERSES the Agency's final order. BACKGROUND Prior to the events giving rise to this complaint, Complainant worked as a Management Analyst at the Agency's Mid-Atlantic Regional Maintenance Center (MARMC). The record reveals Complainant's position was identified for realignment as part of the Base Closure and Realignment Recommendation. In October 2007, Complainant was transferred to a newly created position at the Norfolk Naval Shipyard, in Norfolk, Virginia. On January 2, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO when, on November 6, 2007, his current supervisor informed him that she had received Complainant's close out performance appraisal via "guard mail," and it contained negative comments from his former supervisor. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ), Complainant timely requested a hearing. On December 20, 2010, the AJ assigned to the case issued a decision finding no discrimination, without a hearing. Complainant appealed the decision to the Commission, which vacated the decision and remanded it for a hearing. See * * * v. Navy, EEOC Appeal No EEOC Appeal No. 0120112688 (January 19, 2012), On remand, the AJ held a hearing on October 15, 2012, and issued a decision on February 14, 2013. In her decision, the AJ found that Complainant established a prima facie case of retaliation because Complainant had previously engaged in EEO activity on August 23, 2007.1 Further, S1 was aware of the prior EEO activity. The AJ found Complainant was subjected to an adverse employment action when S1 sent Complainant's new supervisor (S2) Complainant's close-out performance appraisal which contained negative remarks, despite also indicating satisfactory performance. The AJ found that S1's use of "guard mail," or inter-departmental delivery inappropriate. The AJ also found the tuning, which spanned only several months, was a sufficient causal nexus between the prior EEO activity and the adverse employment action. The AJ found the Agency's basis for sending Complainant's close-out performance appraisal in this manner was not credible, and was done for retaliatory reasons. The AJ noted that S2 contacted a Support Services official at MARMC to voice her displeasure with this action, and suggested that she advise personnel to exercise "some professional acumen when dealing with adverse correspondence which could impact [one's] professional career," The AJ specifically found that based on this testimony, S1 sent the closeout performance appraisal "to intentionally harm Complainant's reputation under his new command." The AJ found that S1 was evasive and not truthful in his testimony. The AJ also found that Complainant was the only individual who had his performance appraisal sent directly to his new supervisor in this manner. As for Complainant's race claim, the AJ found no prima facie case of discrimination. In conclusion, the AJ found: Based on the foregoing, I find that Complainant has not [sic] established that he was discriminated against on the bases of his race (African-American) and/or retaliation (prior EEO activity) in violation of Title VII of the Civil Rights Act of 1964, when, on November 6, 2007, a copy of his close-out performance appraisal (with negative comments) was sent from his former command to his new supervisor. The AJ then ordered that the Agency pay Complainant $15,000.00 in non-pecuniary damages and attorney's fees in the amount of $18,733.96, which represented a 50% reduction in the requested amount. The AJ also ordered other remedial relief. On April 8, 2013, the Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. The Agency indicated that since it was unable to implement a decision finding no discrimination with remedial relief or modify an AJ's decision, the Agency issued a final order not implementing the decision. The Agency simultaneously filed an appeal requesting clarification on the matter so that it could implement the AJ's decision. CONTENTIONS ON APPEAL On appeal, the Agency states that the AJ erred, and asks for clarification. In response, Complainant files his own appeal of the AJ's decision and also points out that the AJ made an error finding no retaliation. Furthermore, Complainant contends that the AJ erred in reducing his attorney fee request by 50%, and erred by awarding an insufficient compensatory damages award. Complainant's attorney also attempts to cure the deficiencies in his initial attorney fee petition. In response to Complainant's appeal, the Agency argues that the attorney fee award was properly reduced by the AJ. Finally, it asserts that the compensatory damage award was proper. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VLB. (November 9, 1999). After a review of the record, we find there is no dispute in the record that the AJ's conclusion paragraph contained a typographical error and that the AJ found Complainant had been subjected to retaliation. The Agency concedes as much when on appeal it remarked: The Agency also believes that, given the analysis in the AJ decision and the remedies provided, that the intent was to issue a finding of retaliation, but no discrimination on the basis of race. Moreover, after a review of the record, we find there is substantial evidence in the record to support the AJ's finding of retaliation. The Agency does not challenge the AJ's finding of liability, and Complainant does not challenge the AJ's finding of no race discrimination. With respect to the Attorney fee award, Complainant, through counsel, submitted to the AJ a "Summary of Fees and Costs" totaling $37,467.93. The Agency filed an objection to the Summary, claiming it had numerous deficiencies, including, the absence of a verified statement by the attorney or justification of an associate's $250.00 hourly rate. The Agency also addressed evidence of excessive and incorrect billing, as well as a lack of documentation of costs. The AJ was persuaded by the Agency's objection, and reduced the fee award by 50%. After a review of the Summary, the Agency's objection, as well as the submissions on appeal, we find substantial evidence in the record to support the AJ's decision. With regard to the compensatory damages award, the AJ awarded Complainant $15,000.00 in non-pecuniary compensatory damages. Complainant asserts that the amount should be increased due to the humiliation, insomnia, headaches and marital problems he continued to have four years after the retaliation. 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. EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, No. 915-002, at p. 7 (July 14, 1992. 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 Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). The more inherently degrading or humiliating the Agency's actions are the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. Consequently, somewhat more conclusory evidence of emotional distress will be acceptable to support an award for emotional damages. Id. After a review of the record, we find the AJ's compensatory damages award should be modified. Complainant, his wife and pastor testified on Complainant's behalf at the hearing. They testified as to the humiliation, job stress and depression that Complainant experienced in response to the Agency's retaliation. Complainant testified that the retaliation affected his relationship with his wife, who at one point suggested that Complainant quit his job. Clearly, having a former supervisor send a negative performance appraisal to a new supervisor with the intent to harm one's reputation and job security would be humiliating and cause substantial stress and anxiety. Therefore, we find Complainant's award should be increased to $35,000.00. We find that this award is supported by the evidence, consistent with prior Commission precedent, and is neither "monstrously excessive" nor the product of passion or prejudice. See Smith v. U.S. Postal Service, EEOC Appeal No. 0720070031 (Dec. 7, 2009) ($30,000 awarded in non-pecuniary damages where Complainant suffered emotional harm in the form of humiliation, harassment, feelings of uncertainty about her job and career, and a relapse of depression over a period of three years); Banks v. U.S Postal Service, EEOC Appeal No. 07A20037 (Sept. 29, 2003) ($35,000 awarded where Complainant suffered from emotional harm in the form of humiliation, intimidation, embarrassment, and deep depression). 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 order. ORDER The Agency is ordered to take the following remedial action: I. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall pay Complainant $35,000.00 in non-pecuniary compensatory damages. II. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall pay Complainant's attorney's fees in the amount of $18,733.96. III. Within one hundred and twenty (120) days, and to the extent this has not yet been done, the Agency shall remove the offending language from Complainant's close-out performance appraisal. IV. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall provide training to management officials responsible for the retaliation regarding their responsibilities under EEO laws, with a special emphasis on the anti-retaliation provisions. V. The Agency shall consider taking appropriate disciplinary action against all responsible management officials still employed by the Agency. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). VI. The Agency shall post a notice in accordance with the paragraph below. 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 taken. POSTING ORDER (G0610) The Agency is ordered to post at its Norfolk Navy Shipyard, Norfolk, Virginia facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he 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 (M0610) 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610) 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. 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 bead, 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: Carlton M. Hadden Director Office of Federal Operations Footnotes 1 See * * * v. Navy, EEOC Appeal No. 0120080865 (February 29, 2008) (dismissing for untimely EEO Counselor contact and failure to state a claim). 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------