Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 0720140012 Hearing No. 440-2012-00019X Agency No. FBI-2011-00047 DECISION Following its November 13, 2013, final order, the Agency filed an appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) award of compensatory damages in the amount of $50,000.00 in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. In addition, Complainant filed a cross appeal seeking an increase of the AJ's award of compensatory damages. BACKGROUND During the period at issue, Complainant worked as Special Agent (SA) at the Agency's facility in Chicago, Illinois. On January 13, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Arab), national origin (Lebanese), and in reprisal for prior protected EEO activity. The Agency accepted Complainant's complaint for investigation. 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 and the AJ held a hearing on May 13, 2013 and May 15, 2013, and issued a decision on June 17, 2013. The AJ, in her decision, framed Complainant's claims in the following fashion; 1. In July 2007, the new Supervisory Special Agent (SSA) asked Complainant, "So, are you wearing Hizballah colors today?" and on another occasion said, as Complainant entered the room, "Speaking of Hizballah..." 2. On several occasions the SSA called Complainant either "Sheik" or "Sheik Nazarallah." 3. On December 10, 2008, the SSA asked Complainant, "did you put up your Hizballah decorations in your yard? Some Hizballah decoration that looks like a Christmas tree with lights." The SSA subsequently stated "I don't think [Complainant] is a Christian, I think he is lying to us," and when Complainant asked what he had said the SSA stated "I said I do not think you're a Christian!" 4. In or about 2008, Complainant was ridiculed by the SSA in front of his squad during a physical training test. 5. On September 24, 2010, upon arriving at a search location, the SSA made a ridiculing gesture towards Complainant and asked "are you dressed to go to a Lebanese Night Club?" 6. On July 12, 2010, Complainant was humiliated and insulted by the Assistant Special Agent in Charge (ASAC), in the presence of the SSA for not following instructions and paying attention to details. 7. On August 29, 2010, Complainant's time and attendance were not certified in the WEBTA system for pay period #18 causing him not to be paid. 8. On October 12, 2010, Complainant was required to meet with the SSA regarding his file review although other senior Special Agents (SAs) were not required to meet with the SSA. 9. On October 12, 2010, Complainant received a "minimally successful" on four critical elements of his Performance Appraisal Report (PAR) and the PAR contained inaccurate information. 10. On August 13, 2010, and October 21, 2010, Complainant learned he was not recommended by the Special Agent in Charge (SAC) for supervisory positions. 11. On November 20, 2010, during an investigation overseas, Complainant learned that he was not being copied on emails between his squad, the Assistant United States Attorney's Office and the legal offices. 12. On November 29, 2010, the SSA advised Complainant that he knew of his involvement in the EEO process and began scrutinizing an evidence form prepared by Complainant. 13. On December 3, 2010, Complainant was denied the opportunity to apply for an ALAT position in Beirut because he received "minimally successful" ratings on critical elements of PAR. 14. On December 6, 2010, Complainant learned of his nonselection for the Joint Terrorism Task Force Coordinator position. 15. On May 5, 2011, Complainant was informed that his request for a specialty transfer to the Miami Division had been denied because, insofar as he was involved in an undercover operation and could not be transferred out of Chicago. 16. In July 2007, Complainant told the SSA that he finished a meeting at ICE and the SSA responded, "did you turn yourself in? The AJ found that the Agency subjected Complainant to unlawful discrimination on the bases of race and national origin with respect to issues 9, 13, 14, and 15. The AJ further found that the Agency subjected Complainant to unlawful retaliation with respect to issues 8, 9, 11-15. The AJ ordered the Agency to take the following actions: 1) pay Complainant $50,000 in compensatory damages; 2) remove the "minimally successful" rating from Complainant's personnel record; 3) provide training to management employees at the Chicago, FBI Office; 4) transfer Complainant to the position he would have received in the Miami Office on 2011; 5) pay Complainant $133,844.00 in attorney's fees and $14,364.94 in expenses; and 6) post a notice in the Chicago Office regarding the instant finding of discrimination and retaliation. Regarding the AJ's award of $50,000 in compensatory damages, the AJ found that the unlawful discrimination negatively affected Complainant's marriage. The AJ noted that Complainant's wife credibly testified that Complainant became increasingly angry and withdrawn. The Agency subsequently issued a final order adopting the AJ"s findings of discrimination and retaliation, but rejecting the AJ's award with respect to the amount of compensatory damages. The Agency found that the proper amount of compensatory damages was $25,000.00, and appealed the AJ's decision with respect to the issue of the amount of compensatory damages. The Agency found that the AJ's award of $50,000 was excessive. In response, Complainant filed a counter appeal strictly on the issue of compensatory damages and requested that the AJ's award of $50,000 be increased. Complainant asserts that the Agency's appeal is untimely. Complainant also asserts that the Agency has failed to take other action. Specifically, Complainant asserts that the "Agency has not paid the Complainant the portion of the compensatory damages ($25,000), has not paid Complainant's attorney's fees and costs, has not issued Complainant's transfer order to the Miami Division, has not posted the requisite notice as directed by the [AJ], and has not held management training at the Chicago Field Office...: The Agency in reply asserts that its appeal is timely. Specifically, the Agency asserts that the AJ resolved remaining issues on September 12, 2013, and that Order was not deemed to have been served on the Agency until five calendar days after the first class mailing to the parties. The Agency asserts that the federal government was shut down from September 30, 2013 through October 16, 2013 and that based on EEOC guidance, deadlines were extended by the number of days the government was shut down. Based on these circumstances, the Agency asserts that its appeal is timely. In addition, the Agency asserts that it has begun compliance on the other remedies set forth in the AJ's decision. ANALYSIS AND FINDINGS Timeliness of Agency's Appeal Complainant asserts that the Agency's appeal is untimely. However, we concur with the Agency that its appeal is timely when taking into consideration the government shutdown. While the Complainant asserts that the extension of the time limit does not apply in the instant matter, we disagree. We find that EEO deadlines (including the issuing of final actions by agencies/appeals) were extended by the length of the shutdown. Based on the foregoing, we deem the Agency's appeal to be timely filed.1 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 § VI.B. (November 9, 1999). Non-pecuniary Compensatory Damages Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). Non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from Complainant concerning 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. Id. 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. The AJ awarded Complainant $50,000.00 in non-pecuniary damages. While the Agency asserts that this amount is monstrously excessive, we find that there is substantial evidence in the record to support the AJ's award. In a detailed analysis, the AJ set forth her reason for the award. Specifically, the AJ stated: [Complainant] testified that after the October 2010 performance rating he felt like he was being 'held hostage' in Chicago. He had tried repeatedly to leave the CT-3 squad and understood that the low rating meant he would be stuck in the squad for the foreseeable future...Complainant's wife credibly testified that Complainant became increasingly angry and withdrawn during his years in the CT-3 squad. She testified that the family learned to 'walk on eggshells' and to stay away from Complainant after the work week, until he could recover his mood, but that the required recovery period lengthened until it consumed entire weekends. The AJ found that the discrimination negatively affected Complainant's marriage. The AJ noted that Complainant's wife decided to seek a divorce in July 2012, and the couple legally separated five months before the hearing. Based on the foregoing, we find that the amount awarded is supported by substantial evidence in record and is consistent with Commission precedent. See Complainant v. Dep't of Transportation, EEOC Appeal No. 0120080520 (Jan. 21, 2011) (Complainant subjected to retaliation, and awarded $50,000.00 in compensatory damages based on testimony from complainant and complainant's family members indicating that complainant experienced emotional mood swings, marital strain, a general loss of self esteem and stopped enjoying life.)2 Accordingly, we REMAND the instant matter to the Agency for further processing in accordance with the Order below. ORDER To the extent it has not already done so, the Agency shall take the following actions within thirty (30) calendar days from the date this decision becomes final: 1. The Agency shall pay Complainant $50,000.00 in non-pecuniary compensatory damages. 2. The Agency shall remove the "Minimally Successful" rating from Complainant's personnel record. 3. The Agency shall offer Complainant the JTTF Coordinator position. 4. The Agency shall provide EEO training for management employees at the Chicago FBI office. The training should include education regarding the fact that even remarks made in a joking manner can be actionable harassment. 5. The Agency shall pay Complainant $133,844.00 in attorney's fees and $14,364.94 in costs. 6. The Agency shall transfer Complainant to the position he would have received in the Miami Office in 2011, if his supervisors had not blocked his transfer. 7. The Agency shall post a notice in accordance with the paragraph below. 8. The Agency shall pay Complainant reasonable attorney's fees with respect to its opposition of the Agency's appeal in accordance with the paragraph entitled "Attorney's Fees. 9. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." 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/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 this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. POSTING ORDER (G0914) The Agency is ordered to post at its Chicago, Illinois facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure mat 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 10 calendar days of the expiration of the posting period. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 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 January 22, 2015 __________________ Date 1 We also concur with the Agency that Complainant's argument that the Agency's appeal should be dismissed because it failed to grant interim relief is without merit. 29 C.F.R. § 1614.505(a)(1) provides "[w]hen the agency appeals and the case involves removal, separation, or suspension continuing beyond the date of the appeal, and when the [AJ's] decision orders retroactive restoration, the agency shall comply with the decision to the extent of the temporary or conditional restoration of the employee to duty status in the position specified in the decision, pending the outcome of the agency appeal." The claims at issue in the instant matter do not involve removal, separation, or a continuing suspension. 2 Since we find that there is substantial evidence in the record to support the AJ's award of $50,000.00 in non-pecuniary compensatory damages, we deny Complainant request to increase this award. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720140012 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720140012