Department of homeland security might be worst offender of the way they treat employee’s
Milton Aponte,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement Agency)
Agency.
Appeal No. 01200635321
Agency No. 040228
DECISION
On May 18, 2006, complainant filed an appeal from the agency’s April 18,
2006 final decision (FAD2) concerning an award of compensatory damages
related to a previous finding by the agency of 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.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. §
1614.405(a).
BACKGROUND
On April 13, 2004, the Department of Homeland Security (DHS) issued a
final agency decision (FAD1) finding that the Immigration and Customs
Enforcement Agency (ICE) violated the ADEA and Title VII by discriminating
against complainant based upon age and sex when: (1) in April 1997,
he was not selected for the position of Acting Deputy District Counsel
(ADDC); and (2) in April, 1998, he was not selected for the position
of Deputy District Counsel (DDC). FAD1 also found that ICE violated
the ADEA by discriminating against complainant based upon age when,
in mid-1996, he was not selected for a position as Special Assistant
United States Attorney (SAUSA).
In FAD1, the agency ordered the following relief, in pertinent part:
1. [DHS] shall offer Complainant a position as a SAUSA or a similar
position in a similar capacity to be determined by Complainant and the
DHS;
2. In the alternative, DHS shall promote Complainant to a Deputy District
Counsel position in the DHS Miami District Counsel’s Office;
3. DHS shall award Complainant back pay at the GS-15 grade level, less
mitigation, for the period of time beginning on the actual effective
date of the personnel action (April 4, 1998); [and]
4. As the record indicates that a DHS official discriminated against
Complainant, Complainant may be entitled to compensatory damages if
he can demonstrate that he suffered any injuries as a direct result of
management’s action. Complainant should submit a claim for such damages,
if any, to [the Director of the EEO Office at DHS.]
On December 7, 2004, complainant provided a Submission for Relief to
ICE to support his claim for compensatory damages. Complainant provided
additional information at that time to also help facilitate the agency’s
compliance with FAD1’s order.2 Complainant sought: (1) lost income and
benefits related to his non-selection to the GS-15 Deputy District Counsel
position; (2) reimbursement of $250 in medical costs; (3) reimbursement
of $1,060 in other out of pocket expenses; (4) an award of $1,000 for
future medical expenses; (5) reimbursement for additional taxes paid
as a result of receiving several years of back pay in one lump sum;
(6) a “gross up” of other non-pecuniary damages to account for taxes;
(7) attorney’s fees and costs; (8) retroactive placement in appropriate
positions; and (9) a larger non-pecuniary damages award.
On December 28, 2004, ICE requested additional information from
complainant in order to evaluate his claim for compensatory damages as
well as evaluate compliance issues. In response, complainant submitted
additional documentation on January 28, 2005, February 7, 2005, and August
17, 2005. Thereafter, in November of 2005, ICE initiated payment of
back pay to complainant in the gross amount of approximately $42,405.60,
and out-of-pocket expenses in the amount of $250. Complainant was also
paid attorneys’ fees that were submitted by his current attorney (A2).
On or about June 15, 2005, ICE informed complainant that “it recently
concluded that complainant was not entitled to reinstatement since
he voluntarily resigned from the agency in June of 2003.” ICE further
informed complainant that it would not pay back pay beyond the date of his
voluntary resignation. Thereafter, ICE informed DHS of its position and
requested a revision of FAD1 with respect to the order of reinstatement.
In November of 2005, ICE informed DHS that it was unable to reach an
agreement with complainant regarding the amount of compensatory damages
and, therefore, deferred the decision to DHS. On April 18, 2006, DHS
issued FAD2 which awarded complainant $12,000 in non-pecuniary damages
and $250.00 in pecuniary damages to cover past medical expenses.
CONTENTIONS ON APPEAL
On appeal, complainant asserts that the evidence presented supports a
much higher award of non-pecuniary compensatory damages. Complainant
also asserts that he is entitled to “several thousand” more dollars
in past and future pecuniary damages. With respect to the claim that
the agency failed to comply with FAD1’s equitable relief, complainant
asserts that he has not been offered reinstatement. Complainant also
argues that despite numerous requests, the agency has failed to explain
the calculations it relied upon in determining the amount of back pay.
According to complainant, based on the agency’s preliminary calculations,
the back pay amount should have been higher.
STANDARD OF REVIEW
Our task is to resolve this dispute over the appropriate type and amount
of relief due complainant because of the discrimination he suffered at
the hands of the agency. In so doing, we review the propriety of the
remedies awarded pursuant to the relief ordered de novo (or “anew”).
See 29 C.F.R. § 1614.405(a). This means that in deciding this case,
we must “examine the record without regard to the factual and legal
determinations” of the agency, “review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties,” and then issue our decision “based on the Commission’s
own assessment of the record and . . . interpretation of the law.”
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(rev. Nov. 9, 1999) (EEO MD-110), at 9-15.
ANALYSIS AND FINDINGS
I. Compensatory Damages
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this
regard, the Commission has authority to award such damages in the
administrative process. See West v. Gibson, 119 S. Ct. 1906 (1999).
Compensatory damages do not include back pay, interest on back pay, or
any other type of equitable relief authorized by Title VII. To receive
an award of compensatory damages, a 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); EEOC’s Enforcement Guidance: Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, EEOC Notice 915.002 at 11-12, 14 (July 14, 1992) (“Guidance”).
A complainant is required to provide objective evidence that will allow
an agency to assess the merits of his request for damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
A. Pecuniary Damages
Pecuniary damages are available for out-of-pocket expenses shown to
be related to the discriminatory conduct. Typically these damages
include reimbursement for medical expenses, job hunting expenses,
moving expenses, and other quantitative out-of-pocket expenses.
The Commission requires documentation in support of these expenses,
typically in the form of receipts, bills, or physicians’ statements.
See Minardi v. United States Postal Service, EEOC Appeal No. 01981955
(October 3, 2000); Gause v. Social Security Administration, EEOC Appeal
No. 01972427 (March 8, 2000). Past pecuniary losses are those losses
that are likely to occur before resolution of a complaint and future
pecuniary losses are losses that are likely to occur after resolution
of a complaint. See Guidance at 8.
1. Past Medical Expenses
Complainant asserts that he has substantiated $1,000 in past out-of-pocket
medical costs for treatment by his psychologist (P1). Upon review of the
record we find sufficient documentary evidence, in the form of a bill from
P1, to support complainant’s claim for $750 in past medical expenses.3
2. Other Past Expenses
Complainant also seeks reimbursement of $60 for past out-of-pocket
expenses such as postage, faxed documents, phone calls, and other
assorted costs. We find that complainant is not entitled to his alleged
out-of-pocket expenses since he did not provide any supporting documentary
evidence.
Complainant also seeks reimbursement of out-of-pocket expenses related to
attorney review and legal analysis of his case. Specifically, complainant
paid $1000 to an attorney (A1) who determined that he could not represent
complainant due to a possible conflict of interest. Complainant seeks
reimbursement of this expense as a past pecuniary loss directly caused
by the discrimination, rather than an attorney’s fee. The agency denied
reimbursement on the basis that no bill for A1 was submitted. However,
complainant claims that the bill from A1 was provided to the agency as
an attachment to the submission dated January 28, 2005. The agency also
asserts that since no verified statement or affidavit has been submitted
for A1’s fee, reimbursement of such fee should be denied.
Although the record contains documentary evidence of A1’s fee, attorney’s
fees are not properly considered as part of a compensatory damages claim.
Accordingly, we affirm the FAD with respect to this claim and conclude
that complainant is not entitled to this claim. See Allen v. Department
of Agriculture, EEOC No. 01985772 (May 16, 2001).
3. Future Medical Expenses
Complainant also seeks reimbursement of $2000 in future medical expenses.
Specifically, according to P1, complainant will likely need four
more years of treatment.4 In addition, complainant asserts that the
documentary evidence in the record establishes that each session with
P1 costs $125 and that complainant sees P1 four times per year.
According to the agency, the medical evidence in the record is not
reasonably specific concerning the need for treatment, the course
of treatment, or its anticipated duration. In addition, the agency
asserts that complainant has not proven causation between the 1997-1998
non-selections and any psychological diagnoses and treatment.
Upon review of the evidence, we find that P1’s statements do not provide a
sufficiently detailed explanation of the nature, or extent of treatment
complainant would receive during his various future appointments.
Instead, P1 briefly notes that complainant would need to attend four
more years of therapy, without explaining the basis for such opinion.
See Turner v. Department of the Interior, EEOC Appeal No. 01997262 (June
24, 2002); Sinnot v. Department of Defense, EEOC Appeal No. 01952872
(September 19, 1996). Without a more specific explanation, we find
insufficient evidence to support an award of future pecuniary damages.
Accordingly, as set forth above, we MOFIFY FAD2 and find that complainant
is entitled to $750 in pecuniary damages.
B. Non-pecuniary Damages
Non-pecuniary damages constitute the sums necessary to compensate
an injured party for actual harm, even where the harm is intangible.
Carter v. Duncan-Higgans, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). The award
should take into account the severity and duration of the harm. Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
The Commission notes that for a proper award of non-pecuniary 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 827, 848 (7th Cir. 1989).
1. Complainant’s Position
Complainant asserts that the record evidence demonstrates that he has
suffered severe emotional distress for more than eight years already
and expects at least four additional years of emotional distress and
psychological treatment. Complainant argues that despite this evidence,
the agency improperly calculated the non-pecuniary damages award as if the
duration of the harm was irrelevant. Complainant argues that the record
evidence regarding the duration of harm is specific and corroborated
by highly-credible witnesses. Complainant asserts that the beginning
date for his emotional distress was no later than the 1997-98 time-frame
(i.e., the time-frame in which he experienced a second and third denial
of advancement). For example, complainant stated the following in his
affidavit:
[M]y first discrimination complaint (in 1996) was a concern for me, but it
did not have as big an effect on me as the sex discrimination in 1997 and
1998. I felt that the first non-selection in 1996 could have been a fluke
(even though I certainly believed that it was discriminatory). But when
it happened in 1997 and 1998, I realized that this discriminating manager
was not going to let me succeed or get ahead. That discrimination in
1997 and 1998 put me over the edge. I was more angry and more frustrated
than I have ever been – the most miserable time in my life.
Complainant also notes that the severity of his emotional distress was
observed by his wife beginning in 1997-98. According to complainant’s
wife: “after the discrimination in 1997 and 1998, [complainant] focused
all his energy on his frustrations at work….. Although [complainant]
tried not to show the toll these problems were having on him, I could
easily tell after 1997 and 1998 that he was struggling.” Complainant’s
co-workers also noted the dramatic personality change in 1997-98.
For example, one co-worker testified that “in 1997-98, after [complainant]
was passed over for promotion, I noticed a dramatic change in his outlook
and demeanor whenever I saw him. He spoke constantly about how frustrated
that he was about his inability to get promoted. … [Complainant] always
appeared agitated when he spoke of his situation in the office, and
even began to say things along the lines of ‘this is going to kill me.'”
Another co-worker testified that “after 1997, [complainant] looked very
down and unhappy.”
Complainant argues that in addition to his own statements, the statements
provided by his wife, co-workers and treating psychologist, support
the assertion that the discrimination in 1997 and 1998 triggered a deep
psychological and spiritual crisis. Specifically, he asserts that he
began suffering from depression, headaches, sleeplessness, fatigue,
obsession with work problems, withdrawal, weakness, anger, humiliation,
crying, and strain within his marriage.
Further, complainant asserts that the record shows he went to see various
counselors and psychologists to treat his emotional and spiritual crisis.
Specifically, he affirmed that he used the agency’s Employment Assistance
Program (EAP) for personal counseling and also joint counseling with
his wife to help save his marriage. Complainant also testified that
he obtained counseling and pastoral care from his priest who also was
a trained therapist. By September 2002, complainant began treatment
with a private psychologist (P1). Complainant also explained that from
September 2002 to the present, he received psychotherapy from P1, whose
report states that complainant’s level of emotional distress reflects a
“serious adjustment disorder and Post Traumatic Stress Disorder with
anxiety and depressive symptoms.” P1 also reports on January 24, 2006,
that complainant is “still emotional” and will need “four more years of
treatment.” Moreover, complainant and the other witnesses confirm P1’s
assessment that complainant is “still emotional.” Complainant explained
in his supplemental affidavit, dated January 25, 2006, that he continues
to experience the emotional distress, pain and suffering, embarrassment,
depression, inconvenience, and loss of enjoyment of life that he described
in his initial affidavit.
Accordingly, complainant asserts that the record evidence, which includes
his statements as well as statements from his treating psychologist,
his wife, and his colleagues, supports a deep and severe emotional
crisis in his life, which has lasted more than eight years as of the
filing of his compensatory damages claim. Complainant’s testimony
asserts that neither work, nor home, nor church provides him happiness
or satisfaction; depression has flooded all aspects of his life.
Complainant argues that given the extent, nature and duration of his
emotional harm, the agency’s award of $12,000 in non-pecuniary damages
is grossly inadequate. He further asserts that the record justifies an
award of at least $200,000, when comparing other cases of similar harm.
2. Agency’s Position
a. Effects of the Age Discrimination Finding
The agency asserts that since age was the basis for the discrimination
finding, complainant is not entitled to compensatory damages. In making
this argument, the agency attempts to reargue the merits of the original
decision finding discrimination and asserts that the record does not
support evidence of gender bias. The agency also argues that even if
we conclude that the non-selections were motivated, in part, by gender
bias, such bias was only a relatively small portion of the discriminatory
motives and complainant’s damages award should be reduced accordingly.
We disagree with the agency’s argument. As noted above, on April 13,
2004, DHS issued a decision finding that ICE violated the ADEA and Title
VII by discriminating against complainant based upon age and sex. As no
party appealed FAD1, there is no basis to disturb its findings. We also
disagree with the agency’s assertion that since age discrimination was
one of two bases of discrimination with respect to both non-selection
claims, the compensatory damages award should be reduced. See Santiago
v. Department of the Army, EEOC Appeal No. 01955684 (October 14, 1998)
(holding that while “complainant is not entitled to compensatory damages
or attorney’s fees and costs in connection with her ADEA claim, this does
not reduce the amount of compensatory damages or attorney’s fees to which
she is entitled because the actions that were discriminatory were found
to have also violated Title VII”); see also, Holler v. Department of the
Navy, EEOC Appeal No. 01982627 (August 22, 2001); Almera v. Department
of Veterans Affairs, EEOC Appeal No. 01A13618, fn. 2 (January 30, 2002);
Brown v. United States Postal Service, EEOC Appeal No. 01A35278, fn. 1
(November 22, 2004) and Seago v. Department of Agriculture, EEOC Appeal
No. 07A60030 (October 17, 2006).
b. Psychological Treatment Lacks Credibility
i. No Corroboration of Early Counseling
The agency argues that much of the evidence presented by complainant is
not credible. For, example, the agency asserts that although complainant
testified that he went to counseling at the agency’s EAP office and
met with his family priest during the time period of the alleged
discrimination, he produced no documentary evidence to corroborate
his testimony. In addition, the agency notes that there is nothing
in the record describing the nature and extent of this counseling.
The agency further notes that the documentary medical evidence in
support of complainant’s level of emotional distress includes only two
letters from P1, a psychologist whom complainant saw for the first time
in September of 2004 (i.e., approximately six years after the alleged
discrimination and one year after complainant left the agency).
ii. P1’s Diagnoses Lacks Credibility
The agency argues that P1 lacks credibility. Specifically, the agency
notes that complainant first saw P1 after he retained the services
of an attorney which the agency contends supports the conclusion that
complainant only saw P1 to increase his monetary award, not because he
was legitimately distressed by any discrimination. The agency also notes
that P1’s September 17, 2004 letter describing complainant “as a person
suffering from a serious adjustment disorder and Post Traumatic Stress
Disorder with anxiety and depressive symptoms,” was written after seeing
complainant only one time. Accordingly, the agency concludes that such
diagnoses are “obviously bogus.”
In addition, the agency notes that according to the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV), the diagnostic criteria
for Post Traumatic Stress Disorder (PTSD) requires the person to have
“experienced, witnessed or be confronted with an event or events that
involved actual or threatened death or serious injury or a threat to the
physical integrity of self or others.” The agency asserts that to make
a PTSD diagnosis with respect to a non-selection, given such criteria,
is incredible. In addition, the agency notes that according to the
DSM IV, the criteria for a diagnosis of adjustment disorder “require
the symptoms to emerge within three months of the onset of the stressor
and to continue no more than 6 months after the stressor.” The agency
asserts that since P1 was not treating complainant at the time of the
non-selections (i.e., 1997 and 1998), he cannot independently verify
that any adjustment disorder was the result of the non-selection.
The agency also notes that under such a diagnosis, the reaction to the
stressor would have been over by 1999. Accordingly, the agency argues
that this diagnosis also lacks credibility.
The agency also argues that according to the undisputed record,
complainant does not see P1 very often (e.g., the agency notes that
the bill for P1’s office visits reveals that complainant saw him five
times in a one-year time period and that complainant’s last individual
psychotherapy session was in July of 2005). The agency argues that the
infrequency of complainant’s sessions with P1 belies that he suffers from
any serious, long-lasting, or unremitting emotional harm. The agency
also asserts that the brief statements in P1’s reports do not contain
any analysis or support for his diagnoses.
iii. Biased Witnesses
The agency also concludes that complainant’s witnesses have a motive to
lie or at least exaggerate the extent of any harm since they are either
family members or close friends. In addition, the agency argues that one
co-worker was biased since she had filed her own EEO complaint against
the agency. The agency notes that the witnesses provided affidavits
in September of 2004, and argues that the fact that they were able to
pinpoint with astounding accuracy changes in complainant’s demeanor
and attitude, exactly to the 1997-1998 time-frame, is not credible.
In addition, the agency notes that the witnesses’ attribution in 2004 of
any emotional harm solely to sex discrimination contradicts their prior
assertions during the EEO investigation. Specifically, the agency asserts
that in 2002, complainant’s witnesses expressed their opinion that the
non-selection was based primarily on age, while denying that sex was
a factor. The agency also notes that witnesses, such as one co-worker
and complainant himself, did not mention any emotional distress/change
in personality during the EEO investigative process, indicating that
such assertion is a recent fabrication.
iv. Contributing Factors
The agency also argues that there is evidence in the record to support
the finding that other non-discriminatory factors added to complainant’s
emotional distress, including his severely disabled daughter. Lastly,
the agency argues that since the claim for compensatory damages was
decided on the record, the agency has been deprived of an opportunity to
discover what, if any, other potential stressors may have contributed in
whole or in part to complainant’s psychological harm. The agency notes
that after receiving complainant’s packet of evidence in support of his
claim for non-pecuniary damages it requested additional documentation,
including all of complainant’s medical and psychological records, in
an effort to clarify the alleged weaknesses in the evidence originally
submitted to the agency. Yet, according to the agency, complainant did
not provide most of the information requested.
3. Analysis and Findings on Non-Pecuniary Damages
a. Merits and Weight of Agency’s Rebuttal Evidence
The record shows that the agency attempted to obtain supplemental
evidence in order to address mostly unspecified general concerns it
had with the credibility of complainant’s evidence.5 The record also
shows that complainant’s attorney responded to the agency’s request by
first asserting that the evidence complainant had initially provided was
adequate. A2 also noted that since neither FAD1 nor the Commission’s
regulations provide for formal discovery during this stage in the
proceedings, he objected to the agency’s requests. Nevertheless, A2
provided some of the information requested.
With respect to all counseling records, A2 responded that to the
best of his knowledge, all medical and psychological documents in
complainant’s possession have been submitted to the agency. A2 also
noted that complainant explained in his affidavit that he asked his
EAP counselors for their records in connection with this matter,
but learned that such records do not exist, apparently due to EAP
document-destruction practices.6 A2 also referred the agency to P1’s
report and stated that he believed that such report speaks for itself.
In response to a request for information regarding potential stressful
events unrelated to the discriminatory non-selections, A2 responded
that there were no such stressful events and noted that complainant’s
daughter was not a source of stress.
A2 also responded to the agency by raising complainant’s “over-arching
concern regarding the confidentiality of [complainant’s] medical
information” and advised the agency that he “formally” objected to a
request for medical information “unless and until he received appropriate
assurances” that the information will be kept confidential in accordance
with the law (i.e., the parties agree to enter into a protective order).
The agency did not respond to A2’s request for an agreement to address
complainant’s concern regarding the confidentiality of his medical
records and complainant did not provide additional medical records,
as a result.
The Commission has held that the agency is required to request “objective
and other evidence” when the agency is put on notice of a claim for
compensatory damages before the agency issues a final decision or makes
an offer of full relief. See Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993). The agency properly requested
specific and relevant supplemental evidence from complainant’s attorney
as a predicate to determining his entitlement to, and the amount of
compensatory damages.
Complainant’s apparent concern over the confidentiality of his
medical/psychological records does not justify his refusal to produce
such evidence to the agency.7 Without evidence in the record to
support complainant’s apprehension that the agency would breach his
confidentiality relating to such documents, there is no rationale for
requiring a confidentiality agreement.8 Smith v. Department of the Navy,
EEOC Appeal No. 01945190 (March 24, 1995). Accordingly, in our effort
to determine complainant’s entitlement to non-pecuniary damages, we
shall consider his apparent refusal to clarify and supplement the record.
b. Credibility of Complainant and his Witnesses
Despite the agency’s assertions, we find insufficient evidence in the
record to conclude that the testimony from complainant, his wife or his
co-workers lacks credibility. Specifically, we find that complainant
provided a reasonable explanation for the absence of counseling records
(from either the agency’s EAP office or his priest) and the record is
devoid of other evidence to suggest that he did not participate in such
counseling at the time of the discriminatory non-selections.
We also disagree with the agency and find it reasonable that all
witnesses remembered the same time-frame when complainant’s emotional
state began to deteriorate. In addition, the reference by the witnesses
to “sex discrimination” appears to be the way in which they identify
the second and third non-selections that occurred in 1997 and 1998 as
opposed to the previous non-selection that occurred in 1996, which was
based solely on age. As set forth above, the fact that the second and
third non-selections were motivated by age and sex has no impact on
complainant’s non-pecuniary damages claim. Accordingly, there is no
apparent improper motive for complainant’s witnesses to disingenuously
assert that sex discrimination was the primary cause of complainant’s
emotional distress.
We also find the record devoid of evidence to support the conclusion
that complainant initiated therapy with P1 only to obtain a monetary
award rather than for treatment of his emotional distress. However, the
agency does raise legitimate questions regarding the accuracy of P1’s
diagnosis. On its face, complainant’s self-described symptoms do not
seem to meet the DMS-IV definition of PTSD or an adjustment disorder.
While P1’s Curriculum Vitae (CV) supports the finding that he is a
professional psychologist who is qualified to render such opinions,
complainant’s failure to provide the agency with specifically requested
supplemental and clarifying information certainly weakens the credibility
of P1’s diagnosis.
However, while P1’s diagnosis is questionable, the record nevertheless
supports the fact that complainant experienced substantial emotional
distress following the second and third non-selections which caused him
to see the agency’s EAP office, a family priest and P1 for counseling.9
We also find insufficient evidence in the record to support the agency’s
assertion that complainant’s co-workers are not credible. For example,
we find the witnesses’ opinions in 2002 regarding the basis for the
non-selections not relevant to complainant’s claim for non-pecuniary
damages. In addition, the absence of testimony with respect to emotional
distress during the merit phase of the investigation is not particularly
meaningful either.
c. Other Contributing Factors
We find insufficient evidence to support the agency’s assertion
that complainant’s disabled daughter added to his emotional distress.
As noted above, several credible witnesses, including complainant’s wife
corroborate the assertion that his emotional crisis began after the second
non-selection; as that was the moment he realized that his supervisor
would never promote him based on his status in the protected groups.
The agency failed to present evidence of any significant event in
complainant’s life (other than the non-selections) that occurred during
the same 1997-1998 time frame which could have caused the severe change
in complainant’s emotional state.
d. Opportunity for Cross Examination or Discovery
We disagree with the agency’s assertion that it was placed at a
disadvantage in having been deprived of an opportunity to conduct
discovery and cross-examine complainant’s witnesses. We remind ICE that
it was the agency (DHS) that issued the discrimination finding and ordered
various remedies, which included an order stating that “complainant should
submit a claim for [compensatory] damages, if any, to [the Director of
the EEO Office at DHS].” DHS certainly was not precluded from ordering
ICE to conduct a supplemental EEO investigation on compensatory damages,
which could have minimally included a fact-finding conference, enabling
the agency to conduct direct and cross-examinations. Moreover, there is
nothing in the Commission’s regulations which would have precluded ICE
from carrying out the DHS order (as written) in a more thorough manner
(e.g., by conducting a thorough EEO investigation on compensatory damages,
including information and document requests and scheduling a fact-finding
conference). The agency was not placed at any disadvantage, but rather
failed to take advantage of numerous opportunities to obtain additional
information.
e. Amount of Award
As noted above, non-pecuniary losses for emotional and physical harm
“are more difficult to prove [and quantify] than pecuniary losses,” and
“there are no definitive rules governing the amounts to be awarded.”
Guidance, at 6, 8. As discussed supra, the award should take into
account the severity and duration of the harm. Carpenter v. Department
of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Based upon
our review of the evidence in the record, we conclude that the
agency’s non-pecuniary damages award of $12,000 fails to take into
account the severity and duration of complainant’s emotional distress.
Specifically, we find that the evidence10 supports the conclusion that
the second and third discriminatory non-selections, which occurred
during the 1997-1998 time-frame, caused complainant to endure at least
eight years of depression, anxiety, anger, shame, humiliation, marital
strain, spiritual turmoil, sleep disturbance and headaches. We also
find the record devoid of evidence to support the agency’s conclusion
that unrelated contributing stressors caused any part of complainant’s
emotional distress. Lastly, we note that the record does not support the
conclusion that complainant suffered any emotional distress or medical
condition prior to the 1997-1998 time-frame.
Based upon the severity and duration of complainant’s emotional distress,
we believe an award of $120,000 in non-pecuniary damages is fair and
appropriate here. See Durinzi v. United States Postal Service, EEOC
Appeal No. 01A41946 (July 28, 2005) ($120,000 in non-pecuniary damages
awarded where discrimination resulted in severe changes in personality
and habits, including a loss of self-esteem, anxiety, and depression over
a period of six years, despite the absence of medical evidence and the
presence of unrelated contributing stressors, as well as a preexisting
condition); See also, Franklin v. USPS, EEOC Appeal Nos. 07A00025 and
01A03882 (January 19, 2001) ($150,000 in non-pecuniary damages awarded
where complainant presented evidence of emotional distress, personality
changes, and severe strain on relationships over less than a six-year
period and did not present medical evidence); Truell v. Department of the
Army, EEOC Appeal No. 07A30056 (September 3, 2003) ($95,000 awarded in
non-pecuniary damages where complainant was a productive, well-adjusted
individual who, after the discriminatory non-selection, suffered a
loss of self-esteem, depression, grief, anguish, embarrassment, anger,
stress, weight-loss, sleeplessness, withdrawal from friends, co-workers
and family, and a general loss of enjoyment of life. Medical record
was sparse, but confirmed that complainant experienced work place
stress.); Toro v. United States Postal Service, EEOC Appeal No. 07A20095
(September 30, 2003) ($85,000 awarded in non-pecuniary damages where
discriminatory non-selection resulted in bouts of depression and marital
strain over less than a five-year period and where the record was devoid
of medical evidence.); O’Laco v. Department of Veterans Affairs, EEOC
Appeal No. 07A10089 (November 18, 2002), request for reconsideration
denied, EEOC Request No. 05A30341 (March 18, 2003) ($85,000 awarded
in non-pecuniary damages where discriminatory non-selection caused
complainant to experience emotional distress, which was severe for two
years and continued for a total of five years, and included humiliation,
anxiety, loss of self-esteem, insomnia, despite the absence of medical
treatment or corroborating testimony/evidence and the presence of other
contributing factors). This figure takes into account the nature,
severity, and duration of complainant’s suffering, is consistent with
other non-pecuniary compensatory damages awards given in similar cases,
and is not “monstrously excessive” standing alone or derived from passion
or prejudice.11
II. Equitable Relief
A. Back Pay
Based upon the fact that the agency’s preliminary back pay calculations
were higher than what was actually awarded, complainant asserts that
he is entitled to an explanation of the calculations that the agency
relied upon for its payment of back pay in the amount of $38,080.64.
In response, the agency asserts that it paid back pay from the date of
non-selection to the date of complainant’s voluntary resignation from
the agency in June of 2003. The agency claims that it relied on the
calculations provided by the USDA National Finance Center to make all
appropriate deductions and contributions in issuing the final award.
The agency also argues that complainant has presented no reason to
question the accuracy of the National Finance Center’s calculations.
The Commission recognizes that precise measurement cannot always be
used to remedy the wrong inflicted, and therefore, the computation of
back pay awards inherently involves some speculation. Hanns v. United
States Postal Service, EEOC Petition No. 04960030 (September 18, 1997).
However, uncertainties involved in a back pay determination should
be resolved against the agency which has already been found to have
committed the acts of discrimination. Id. See also Klook v. United
States Postal Service, EEOC Petition No. 04A40012 (June 16, 2004)
citing Davis v. United States Postal Service, EOC Petition No. 04900010
(November 29, 1990); and Besemer v. United States Postal Service, EEOC
Petition No. 04890005 (December 14, 1989). The Commission finds that it
is reasonable to require the agency to provide a clear and concise “plain
language” statement of the formulas and methods it used to calculate
complainant’s back pay. See also Vashi v. United States Postal Service,
EEOC Petition No. 0420060009 (December 5, 2007) (noting that it is the
agency’s obligation to ensure that its back pay calculations are clear,
supported in the record and in accordance with 29 C.F.R. § 1614.501.)
The Commission finds that it is unclear how the agency calculated
complainant’s back pay award. While the agency provided numerous spread
sheets containing unidentified calculations, there is no explanation in
the record as to the basis for such calculations. Such calculations are
meaningless if not understandable by the reader. Specifically, there
is no indication whether the back pay award included all forms of lost
compensation that complainant is entitled to, such as wages, bonuses,
vacation pay, in addition to all other elements of reimbursement and
fringe benefits, such as pension and health insurance. It is also unclear
whether and how interest was calculated and awarded.12 Accordingly,
we find that the agency has not complied with FAD1 with respect to the
order of back pay.
Taxes
Complainant also seeks the related equitable remedy of an award to cover
additional tax liability caused by receiving six-plus years back pay in
one year. See Sears v. Atchison Topeka & Santa Fe Railway Company, 749
F.2d I 1451, 1456 (1984); Goetze v. Department of the Navy, EEOC Appeal
No. 01991530 (2001). The agency agrees that complainant would be entitled
to any increase in taxes caused by being paid several years of back pay
in one year. However, the agency asserts that it is complainant’s burden
of proof to show the amount of additional taxes he must pay as a result
of the lump sum back pay payment. The agency also agrees to reimburse
this increased tax liability once complainant submits such evidence.
We agree with the agency that complainant has the burden of providing
the agency with evidence in support of a specific amount of additional
taxes caused by the lump sum award. Since we find that the agency failed
to comply with the back pay order, on remand, complainant will have an
opportunity to provide the agency with supporting evidence with respect
to this issue.
B. Reinstatement
The undisputed record shows that complainant resigned from ICE on June
15, 2003 (nine months prior to DHS’ issuance of FAD1). Approximately
two years later, on or about June 15, 2005, ICE informed complainant
that “it recently concluded that complainant was not entitled to
reinstatement since he voluntarily resigned from the agency in June
of 2003.” Thereafter, ICE informed DHS of its position and requested a
revision of FAD1’s order regarding reinstatement.13 On April 18, 2006,
subsequent to ICE’s request, DHS issued FAD2 which acknowledges FAD1’s
previous order with respect to reinstatement, but only resolves the
dispute between ICE and complainant with respect to compensatory damages.
FAD2 does not address the reinstatement dispute in any manner.
On appeal, complainant continues to seek compliance with FAD1’s order
regarding reinstatement while ICE maintains its position that complainant
is not entitled to reinstatement since he voluntarily retired in June,
2003. ICE also attempts to revisit the merits of FAD1’s discrimination
finding by arguing that the record below supports the conclusion that
complainant would not have been promoted, even absent discrimination.
As stated previously, we find the agency’s efforts to revisit the merits
of the discrimination finding improper since no appeal was ever filed.
See 29 C.F.R. § 1614.504(a). Moreover, without any such appeal, ICE has
no basis to modify or disregard any portion of the relief ordered. Id.
Accordingly, we find that the agency has failed to fully comply with
FAD1 with respect to reinstatement.
III. Attorney’s Fees
Complainant agrees that the agency provided payment of all his
attorney’s fees through August 17, 2005. However, complainant seeks
additional attorney’s fees reasonably incurred from August 17, 2005 to
the present date. The agency asserts that it has paid more attorneys’
fees than the amount that complainant is entitled to since a portion
of the discrimination finding was based upon a violation of the ADEA.
As stated above, complainant is entitled to reimbursement of all
proven reasonable attorneys’ fees with respect to each finding of
discrimination that was based, in part, on Title VII. See Santiago
v. Department of the Army, EEOC Appeal No. 01955684 (October 14, 1998).
The record shows that complainant incurred unpaid attorneys’ fees after
A2 submitted his fee petition but before this appeal was filed.14 Since
this decision not only modifies the compensatory damages award, but also
concludes that the agency failed to comply with its order of back pay
and reinstatement, we find that complainant should have an opportunity
to prove additional unpaid reasonable attorney’s fees for the efforts
of A2 to obtain compliance before the filing of this appeal.15
CONCLUSION
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, we MODIFY FAD2, REMAND this matter,
and order the agency to take corrective action in accordance with this
decision and the Order below.
ORDER
Within thirty (30) days from the date this decision becomes final:
1. The agency shall offer complainant a position as a SAUSA or a similar
position in a similar capacity to be determined by complainant and the
agency. In the alternative, the agency shall promote complainant to
a Deputy District Counsel position in the DHS Miami District Counsel’s
Office;
2. The agency shall award complainant back pay at the GS-15 grade
level, less mitigation, for the period of time beginning on the actual
effective date of the personnel action (April 4, 1998). The agency
shall recalculate the back pay and interest owed to complainant in a
manner prescribed above and in accordance with 29 C.F.R. § 1614.501.
The agency shall provide a copy of these calculations to complainant.
Such calculations shall include a detailed statement clarifying how
complainant’s back pay award was reached. The statement shall consist
of a clear and concise, “plain language” statement of the methods of
calculations used for the instant matter and actual calculations applying
said formulas and methods. If there is still a dispute regarding the
exact amount of back pay and/or benefits, the agency shall issue a check
to complainant for the undisputed amount within thirty (30) days of the
date the agency determines the amount it believes to be due;
3. To the extent that it has not already done so, the agency shall pay
complainant $750 in pecuniary damages;
4. To the extent that it has not already done so, the agency shall pay
complainant $120,000 in non-pecuniary damages;
5. Within 180 days of the date this decision becomes final, the agency
shall train all responsible management officials, if still employed by
the agency, concerning the identification, prevention, and correction
of discrimination on the basis of sex and age;
6. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. 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 the responsible
management official has left the agency’s employ, the agency shall
furnish documentation of his departure date; and
7. The agency shall reimburse all of complainant’s reasonable attorneys’
fees incurred after the date of his most recent fee petition.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Immigration and Customs
Enforcement, Chief Counsel’s Office, in Miami, Florida, 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 (H0900)
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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (R0408)
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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
June 11, 2008
__________________
Date
1 Due to a new data system, complainant’s case has been re-designated
with the above-referenced appeal number.
2 We note that complainant’s appeal raises compliance issues in addition
to disputing the compensatory damages award, which are accepted pursuant
to 29 C.F.R. § 1614.402 and 29 C.F.R. § 1614.405.
3 In complainant’s supplemental affidavit he states that he scheduled an
appointment with P1 “within the coming month.” However, this expense
is not sufficiently documented in the record and is more accurately
characterized as a future medical expense.
4 P1 states as follows: “I continue to treat [complainant] for his
problems stemming from the sex discrimination he has experienced at work.
His status remains as previously described and as he presents still
emotional about these issues, I intend to continue to treat him, seeing
him at least four times per year. Until this matter is resolved, I
believe at least four more years of treatment is likely to be necessary.”
5 For example, the agency sought additional records to support
complainant’s therapists’ diagnoses and opinions.
6 In addition, complainant affirmed that his family priest had recently
died.
7 To the extent that complainant asserts that he produced all documentary
evidence in his possession, we note that the record is not clear whether
complainant requested all relevant records in P1’s possession. However,
it is reasonably likely that P1 maintained relevant records in addition
to those provided by complainant.
8 We note that federal law prohibits the agency from revealing
information obtained from an EEO complaint to the general public.
See e.g., 5 U.S.C. 552a (b); Sofio v. Department of the Treasury, EEOC
Request No. 05880633 (September 12, 1988); and 42 U.S.C. § 2000e-8(e).
9 We note that evidence from a healthcare professional is not a
mandatory prerequisite for an award of compensatory damages. See Sinnott
v. Department of Defense, EEOC Appeal No. 01952872 (September 19, 1996);
Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
10 Such evidence includes: (1) complainant’s testimony; (2) complainant’s
wife’s testimony; (3) complainant’s co-workers’ testimony; and (4) the
confirmation by P1 that complainant continues to suffer emotionally.
For reasons set forth above, we do not give significant weight to P1’s
diagnosis in his medical report. However, we rely upon sufficient
evidence in the record, based upon complainant’s own testimony, that
he sought psychological counseling to help him cope with the emotional
distress that the discriminatory non-selection caused.
11 Complainant also wants the agency to “gross up” the compensatory
damages award because complainant experienced harm and expenses in
“after-tax” dollars. The agency asserts that there is absolutely no legal
basis for complainant to obtain a “gross-up” in compensatory damages to
account for tax consequences and, thus, this claim should be disallowed.
We agree with the agency and note that complainant has not presented
any legal support for this claim.
12 We remind the agency that it may not deduct unemployment compensation
from the back pay award. See also Vashi v. United States Postal Service,
EEOC Petition No. 0420060009 (December 5, 2007) citing Scott v. United
States Postal Service, EEOC Appeal No. 01921641 (June 11, 1993).
In addition, the interest is properly computed on net back pay, rather
than gross back pay. See Kloock v. United States Postal Service, EEOC
Petition No. 04A40012 (June 16, 2004), citing Wrigley v. United States
Postal Service, EEOC Petition No. 04950005 (February 15, 1996).
13 There is no indication from the record that DHS ever responded to
ICE’s request.
14 A2 continued to work on issues related to compliance after his fee
petition.
15 In addition, we note that complainant is entitled to additional
reasonable attorneys’ fees associated with this appeal, as ordered below.
2
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
20
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