In Basaldua v. Dep’t of Homeland Security, EEOC Appeal No. 0720090044 (August 22, 2013), the EEOC’s Office of Federal Operations (OFO) affirmed the administrative judge’s (AJ) finding of discrimination and award of compensatory damages but rejected the AJ’s award of make-whole relief as too speculative.

Basaldua, who worked as supervisory transportation security officer at the Department of Homeland Security’s Saipan International Airport facility in Saipan, MP, filed an EEO complaint alleging that the agency had discriminated against him when it demoted him, gave him 30 days of remedial training, subjected him to a series of disciplinary actions and to a hostile work environment, and provided a negative reference to a prospective employer. In this respect, Basaldua alleged that the agency’s conduct was based on his race (White/Hispanic), national origin (Hispanic), sex (male) and in reprisal for prior EEO activity. While the AJ did not find discrimination based on sex, it did find discrimination as alleged based on race, national origin and in reprisal for protected EEO activity. The AJ awarded Basaldua $80,000 in compensatory damages and $74,000 in make-whole relief.

The agency appealed to the OFO, which affirmed the AJ’s findings of discrimination as well as the award of compensatory damages, but rejected the make-whole relief award. Specifically, the OFO noted that several of the grounds upon which the agency had attempted to justify Basaldua’s demotion, i.e., his failure to attend several meetings and/or training without authorization, were not supported by the evidence. More importantly, the OFO found that the agency had been unable to dispute Basaldua’s assertion that others in his position had engaged in similar conduct but had not been demoted.

Similarly, the OFO noted that the agency had failed to articulate a legitimate non-discriminatory reason for ordering Basaldua to take 30 days of remedial training since the evidence showed that such sanction was too severe and inconsistent with the sanctions given to others for the same conduct. The OFO also affirmed the AJs finding of reprisal, concluding that an agency representative had failed to limit his discussion with Basaldua’s prospective employer to questions related to dates of employment and instead had provided unnecessary, additional information which reasonably raised the prospective employer’s suspicion regarding Basaldua’s employment.

Last, the OFO found that the AJ’s award of compensatory damages in the amount of $80,000 was in line with Commission precedent, as Basaldua had shown that, as a result of the agency’s conduct, he had increased his alcohol consumption to deal with the emotional distress, had been prescribed diazepam to help him relax and sleep, and his relationship with his wife and children had deteriorated. However, the OFO found that the AJ’s award of $74,000 in make-whole relief was too speculative since there was no evidence that Basaldua would have been hired by the prospective employer had the agency not given a negative reference. Thus, the OFO reversed the AJ’s order in this respect.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.

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