01a0594portier
02-28-2001
Gary L. Portier, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Gary L. Portier v. Department of the Army
01AO5954
February 28, 2001
.
Gary L. Portier,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01AO5954
Agency No. BHFRFO9801I0040
Hearing No. 330-99-8044X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD (Damages)), primarily concerning the level of the agency's award of
compensatory damages and also the agency's refusal to award additional
attorney's fees and costs. An EEOC Administrative Judge (AJ), in a
recommended decision, found that the agency violated Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq.,<1> when it discriminated against complainant on the basis of his
race (Black). Complainant alleged that he was discriminated against,
when he was not selected for promotion to Heavy Mobile Equipment Repair
Inspector, WG-5803-10. The agency adopted the recommended decision
of the AJ and retained jurisdiction over relief questions, including
compensatory damages and attorney's fees and costs (FAD (Merits)).<2>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The primary issue on appeal is whether complainant was entitled to an
award of compensatory damages beyond the $8,798.34 awarded by the agency.
In addition, issues are raised whether complainant established that he
is entitled to annual leave and sick leave beyond the 20 hours of sick
leave awarded by the agency, and whether complainant is entitled to any
monetary award for lost retirement income and investment opportunities.
Complainant also requests attorney's fees for pursuing the relief related
to the appeal.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Heavy Mobile Equipment Repairer, WG-5803-09, at the agency's Area
Maintenance Support Activity 73G (AMSA 73), 90th Regional Support Command,
Fort Sam Houston, Houston, Texas. Complainant applied for promotion to
Heavy Mobile Equipment Repair Inspector, WG-5803-10, but was notified that
he had not been selected on December 5, 1997. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on April 3, 1998.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC AJ. Following a hearing, the AJ issued a recommended
decision finding complainant had been discriminated against. As relief,
inter alia, the AJ recommended that the complainant be promoted to the
position of Supervisor of Heavy Mobile Equipment Repair Inspector with
back pay, frontpay, and all other employment benefits (with interest);
that the agency compensate complainant for any damages he could prove
resulting from the discrimination; and that the agency pay complainant
reasonable and necessary attorney's fees. Subsequently, the AJ's
recommended finding of discrimination was adopted by the agency in its
FAD (Merits). The agency, in addressing the AJ's recommended relief,
set forth guidance to complainant for establishing and proving damages
and attorney's fees. <3>
Complainant then filed his submission for compensatory damages before
the agency, requesting: (1) $36,795.62 in past and future pecuniary
damages; (2) $125,000.00 in non-pecuniary damages; and (3) $17,499.84 for
two-years' interest on the non-pecuniary damages. Complainant's request
for past pecuniary damages embraced reimbursement for annual leave, sick
leave, medical expenses, and job search expenses. Complainant's request
for future pecuniary damages embraced additional medical expenses,
his loss of increased contributions into his retirement plan, as well
as the benefit of compounding the contributions from the time of the
discriminatory action and into the future, the cost of lost investment
opportunities, and additional attorney's fees incurred in attempting to
collect his compensatory damages. Complainant's request for non-pecuniary
damages embraced reimbursement for, inter alia, pain and suffering. The
compensatory damages requested totaled $179,295.46.
On August 12, 2000, the agency issued its FAD (Damages), awarding
complainant a total of $8,798.34 in compensatory damages. The
breakdown of the awarded compensatory damages was: (1) $798.34 for
past pecuniary damages for doctors' visits and prescription drugs;
and (2) $8,000.00 for non-pecuniary damages for emotional distress and
physical discomfort. The agency declined to award complainant any future
pecuniary damages, including additional attorney's fees. The agency also
awarded complainant twenty hours of sick leave, as equitable relief,
not as compensatory damages, although complainant requested 171 hours
of sick leave. The agency did not award complainant any annual leave,
although complainant requested 487 hours of annual leave. It is the FAD
(Damages), from which complainant now appeals.
CONTENTIONS ON APPEAL
On appeal, complainant raises a number of contentions. In sum, he argues
that the FAD (Damages) did not properly calculate his pecuniary losses
and non-pecuniary losses. Complainant requests that he be awarded the
compensatory damages originally requested in the sum of $179,295.46,
the originally requested sick and annual leave, and the originally
requested attorney's fees.<4>
In response, the agency argues that it properly calculated complainant's
pecuniary and non-pecuniary losses. The agency especially criticizes
complainant for not showing the connection between his alleged damages
and the alleged discrimination. The agency also takes the position
that some of the relief requested, including the annual and sick leave,
and the retirement income and investment opportunity issues, which
complainant seeks as compensatory damages, may be appropriate only as
equitable relief, and that as equitable relief there has been inadequate
justification. The agency did not respond to complainant's request for
additional attorney's fees.
ANALYSIS AND FINDINGS
When discrimination is found, the agency must provide the complainant with
an equitable remedy that constitutes full, make-whole relief to restore
him as nearly as possible to the position he would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co., 424
U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19
(1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July 21,
1994). The Commission recognizes that not all harms done are amenable
to precise quantification; the burden of limiting the remedy, however,
rests with the defendant employer. Smallwood v. United Airlines, Inc.,
728 F.2d 614, 616 n. 5 (4th Cir.), cert. denied, 469 U.S. 832 (1984).
This decision will address complainant's relief in three parts: (1)
Compensatory Damages; (2) Equitable Relief; and (3) Attorney's Fees and
Costs.
COMPENSATORY DAMAGES
Section 102(a) of the Civil Rights Act of 1991 (the CRA 1991), Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. � 1981a, authorizes an award
of compensatory damages as part of the "make whole" relief for intentional
discrimination in violation of Title VII, as amended. Section 1981a(b)(2)
indicates that compensatory damages do not include back pay, interest on
back pay, or any other type of equitable relief authorized by Title VII.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for an
employer with more than 500 employees, such as the agency, is $300,000.
42 U.S.C. � 1981a(b)(3)(D).
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. It based this assessment, inter
alia, on a review of the statutory provisions of the CRA of 1991 in
relation to one another and on principles of statutory interpretation
that require statutes to be interpreted as a whole.
If a complainant alleges that he or she is entitled to compensatory
damages and the agency or Commission enters a finding of discrimination,
the complainant is given an opportunity to submit evidence establishing
his or her claim. To receive an award of compensatory damages,
a complainant must demonstrate that he or she 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) req. for recons. den. EEOC Request No. 05940927 (December 11,
1995); Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992),
at 11-12, 14.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, supra, at 8. Pecuniary losses are out-of-pocket expenses that
are incurred as a result of the employer's unlawful action, including
job-hunting expenses, moving expenses, medical expenses, psychiatric
expenses, physical therapy expenses, and other quantifiable out-of-pocket
expenses. Id. Past pecuniary losses are the pecuniary losses that
are incurred prior to the resolution of a complaint via a finding of
discrimination, an offer of full relief, or a voluntary settlement.
Id. at 8-9. Future pecuniary losses are losses that are likely to occur
after resolution of a complaint. Id. at 9. Non-pecuniary losses are
losses that are not subject to precise quantification, including 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. Id.
A compensatory damages award should fully compensate a complainant
for the harm caused by the agency's discriminatory action even if the
harm is intangible. Id. at 13. Thus, a compensatory damages award
should reimburse a complainant for proven past pecuniary losses, future
pecuniary losses, and non-pecuniary losses. A complainant has a duty
to mitigate his or her pecuniary damages. Id. at 9. If a respondent
can prove that a complainant failed to mitigate pecuniary damages, the
damages award should be reduced to reflect all losses that could have
been avoided by the exercise of reasonable diligence. Id. at 9-10.
There are no precise formulae for determining the amount of damages
payable for non-pecuniary losses. Damage awards for non-pecuniary losses
that have been assessed by juries and courts have varied substantially
from one another. Id. at 13. However, an award of compensatory damages
for non-pecuniary losses, including emotional harm, should reflect
the extent to which the respondent's discriminatory action directly or
proximately caused the harm and the extent to which other factors also
caused the harm. Id. at 11-12. An award of compensatory damages for
non-pecuniary losses should also reflect the nature and severity of the
harm and the duration or expected duration of the harm. Id. at 14.
Evidence of Injury and Causation
The parties agree that complainant was injured because of the
discrimination. However, the parties dispute the severity and duration or
expected duration of the injury incurred because of the discrimination,
focusing on the sufficiency of the evidence. Indeed, the agency awarded
complainant pecuniary and non-pecuniary compensatory damages. However,
the agency's award was significantly lower than the damages requested
by complainant.
Complainant argues that he incurred substantial past pecuniary expenses,
such as leave, job search, and medical expenses due to the agency's
discrimination, when his emotional state began to deteriorate as a result
of the agency's discrimination, and that future pecuniary expenses,
in the form of medical expenses, will also be incurred. Moreover,
complainant submits that lost opportunity costs, related to investment
and retirement (including interest), have been and will be incurred
as well. In addition, complainant argues that he incurred substantial
non-pecuniary damages, related to the deterioration of his emotional
state, due to the agency's discrimination. In complainant's view,
the agency has been selective in its crediting of the evidence in order
to minimize its liability. In support, complainant presented his own
testimony, doctors' reports, his leave records, medical expense records,
as well as statements of family and friends.
The agency essentially questions the complainant's evidence in two
basic respects. First, the agency submits that the complainant,
in many instances, has failed to demonstrate the connection between
the discrimination and the injury, especially where medical expenses
and leave are concerned. The agency thus argues, for example, that
complainant generally assumes that if expenses were incurred after the
date of the alleged discrimination, the nexus has been demonstrated.
Second, the agency brings out that complainant has a lawsuit pending in
the District Court of Harris County, Texas, against the manufacturers
of the drug �Fen-Phen,� a weight control medication. According to the
agency, complainant's lawsuit against the manufacturers of Fen-Phen,
claims similar harm from his use of Fen-Phen as that claimed based
upon his non-selection for promotion, i.e., weight loss, weight gain,
difficulty sleeping, drinking to be able to sleep, and tiredness from lack
of sleep. The agency also asserts that the dates in which complainant has
alleged the ingestion of Fen-Phen, and the resulting injuries, occurred
during the same time period alleged in his discrimination action against
the agency. The agency points out that although it articulated this
shortcoming in the FAD (Damages) (id. at 7), complainant has nevertheless
declined to further address the question. It is also argued that to the
extent complainant seeks compensation from the agency for weight loss,
weight gain, difficulty sleeping, or tiredness, it is his burden to prove
these conditions were caused by his non-selection for promotion, rather
than from his use and subsequent discontinuance of the Fen-Phen drug.
See Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994).
Pecuniary Damages
Pecuniary losses are out-of-pocket expenses incurred as a result of
the employer's unlawful action, including job-hunting expenses, moving
expenses, medical expenses, psychiatric expenses, physical therapy
expenses, and other quantifiable out-of-pocket expenses. We agree
with the agency that complainant's issues of annual and sick leave,
and the retirement income and investment opportunity issues, which
complainant seeks as grounds for pecuniary compensatory damages, should
be appropriately denominated as equitable relief, and will be discussed
as such, and not as compensatory damages. Complainant's request for
additional attorney's fees will also not be viewed as a pecuniary damage
issue, but will be addressed separately.
1. Past Pecuniary Damages
Medical Expenses
Generally
Complainant essentially submits that if the medical expenses were
incurred after December 5, 1997, the date of his nonselection, they
are compensable. The complainant also seems to argue that since the
agency accepted some of the expenses with less than full documentation,
the agency should accept the other expenses which it has rejected.
Essentially, the agency, in declining certain of the expenses, proffered
by complainant, submits that complainant failed to show a nexus between
the nonselection and the expenses incurred.
We agree with the agency. Merely attaching receipts and bills for
expenses incurred after the nonselection does not show a causal
relationship between the nonselection and the expenses incurred. A
connection must be shown between the expenses incurred and the
discriminatory action. The agency is only required to consider evidence
of damages shown to be a result of the alleged discrimination. The agency
is not responsible for rectifying an individual's health problems
in general. In addition, as the agency pointed out, in complainant's
lawsuit against the manufacturers of Fen-Phen, complainant claims the
harm from his use of Fen-Phen was similar, in certain respects, to
that claimed based upon his non-selection for promotion, i.e., weight
loss, weight gain, difficulty sleeping, drinking to be able to sleep,
and tiredness from lack of sleep. Although the agency articulated this
shortcoming in the FAD, complainant nevertheless has failed to further
address the question on appeal.
Baylor-Methodist Primary Care Associates and related expenses
Complainant requested $1,616.00 for expenses incurred at the
Baylor-Methodist Primary Care Associates. The agency accepted
complainant's three visits to Doctor A, a family practitioner with
Baylor-Methodist, agreeing to reimburse complainant $333.00, but
otherwise declining the $1,616.00 requested by complainant. Dr. A treated
complainant for �possible depression and anxiety disorder� on February 3
and 10, and March 15, 1999. The agency also granted complainant $79.53
for two Wellbutrin prescriptions written by Doctor A in February and
March 1999 for complainant's depression.
We agree with the agency's disposition. The other medical expenses,
relating to Baylor-Methodist in the record (Exhibit H), indicate
complainant had treatment for such needs as acute bronchitis,
chronic sinusitis, allergic rhinitis, edema, chronic rhinitis, etc.
The complainant has not sought to show in his appeal the connection
between these conditions and the discrimination. Moreover, complainant
has been on notice that the question of �nexus� has been foremost in
the agency's disposition of complainant's requests.
Houston Department of Veterans Affairs Medical Center
Complainant requested $1,199.01 for expenses incurred at the Houston
Department of Veterans Affairs Medical Center. The agency accepted the
complainant's psychological assessment conducted by Doctor B (Exhibit C)
of the Veterans Affairs Medical Center, but concluded that the proper
reimbursable amount, based upon the submitted statements, was $385.81,
not the $1,199.01 (Exhibit G) claimed by complainant.
We agree with the agency. The medical expenses, relating to the Veterans
Affairs Medical Center, which were denied by the agency, do not have any
documentation as to what specific service was rendered or the purpose
of the charge. Complainant's documentation indicates that complainant
was billed for outpatient care, but no further explanation was given.
Although there are various charges for drugs, none was for Wellbutrin.
Complainant does not otherwise suggest that any of the drugs were for
treatment of his depression or stress.
OneCare Family and General Practice, Houston, Texas
Complainant requested $509.52 (down from an original request of
$1,811.47) for expenses incurred at the OneCare Family and General
Practice (Exhibit G). The agency declined the bill in its entirety,
because complainant failed to establish a causal relationship between
the listed consultations and the stress and other symptoms claimed as
a result of the discriminatory act, i.e., his non-selection for the
WG-503-10 position. Complainant's revised request for $509.52 was based
on care between December 21, 1997, and September 15, 1999, acknowledging
that he had made visits to OneCare Family and General Practice prior to
the date of his non-selection.
We agree with the agency. Complainant presented no documentation as to
even what services were rendered. It is apparent only that complainant
made numerous payments to OneCare Family and General Practice.
Laboratory Corporation of America, Houston, Texas
Complainant requested $256.25 for expenses incurred at the Laboratory
Corporation of America (Exhibit H). The agency declined complainant's
$256.25 request for reimbursement, finding that there was no evidence
establishing a nexus between the charges incurred and the agency's
discriminatory conduct. The services were rendered on February 4, 1999.
We agree with the agency. Complainant presented no documentation as to
the purpose of the services. Although it appears there were some test
results presented by complainant, there is no indication what the tests
were for.
Job Search Expenses
The FAD (Damages) declined the request for job search expenses because
complainant failed to establish the expenses directly resulted from the
discrimination sustained and in any event, complainant failed to provide
proof of costs incurred or proof that he applied for other positions.
According to complainant, on appeal, after the December 5, 1997,
non-selection, he applied for another position of Heavy Mobile Equipment
Repair Leader, WL-5803-09, in AMSA 73. Complainant submits he is entitled
to the compensation for his job search expenses, including $7.00 for
copying, $5.85 for postage, and 5 hours spent preparing documents for
submission at $18.31 per hour for a total of $91.55. Complainant thus
submits that the total warranted for the job search was $104.40.
The complainant must document his expenses. Complainant has not provided
canceled checks, copies of bills, or other forms of evidence that
sufficiently support his claim. Further, complainant is not entitled
as a form of compensatory damages to compensation for the personal time
that he expended. See Sprague v. Agriculture, EEOC Appeal No. 01985144
(April 27, 2000). Accordingly, complainant's request for job search
expenses is denied.
2. Future Pecuniary Damages
Additional Medical Expenses
Complainant requests $12,405.65 in future pecuniary damages, spread over
five years. This figure is based on the medical expenses he incurred
as described in his past pecuniary damage request, i.e., $4,962.26 over
approximately two years.<5> Complainant thus points out that he incurred
$2,481.13 per year in medical expenses, and extrapolated that over the
next five years, he would thus incur $12,405.65 in medical expenses.
The agency pointed out that complainant's Dr. B, in a report dated
October 13, 1999, concluded that complainant's depression had improved
with medication, but that some symptoms of depression would persist
until the conflict with his job was resolved. This is the last doctor's
report in the record. The doctor's report was soon after the agency
adopted the AJ's finding of discrimination, which was September 22, 1999.
Complainant's appeal was dated October 11, 2000. Complainant nevertheless
presents no medical documentation to support his estimated future medical
expenses.
The agency thus emphasizes that on or about January 4, 2000, complainant
was awarded a retroactive promotion to the position of Heavy Mobile
Equipment Repair Inspector, WG-5803-10, and payment of back pay with
interest, retroactive to December 5, 1997. The agency further emphasizes
that complainant received his full back pay with interest on or about
February 24, 2000. Nevertheless, the complainant has not addressed the
effect of these positive actions by the agency and the extent to which
they have helped him resolve his emotional problems.
In denying complainant future pecuniary damages, we are not concluding
that his emotional state has completely and been finally cured, by having
his job conflict resolved. There very well may be emotional scars from
the agency's act of discrimination that will affect him well into the
future.
On the other hand, complainant's own doctor opined that complainant's
condition would persist only �until the conflict with his job is
resolved.� As complainant received his promotion to the non-selected
position, back pay, etc., it would appear that the �conflict� has been
resolved. Nevertheless, no information was given as to his medical costs
after September 15, 1999. Medical documentation setting forth estimates
of future expenses could have been helpful in evaluating complainant's
future pecuniary damages.
Non-Pecuniary Damages
The Commission notes that damage awards for emotional harm are difficult
to determine and that there are no definitive rules governing the amount
to be awarded in given cases. Non-pecuniary damages must be limited
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible, see, Carter v. Duncan-Higgins, Ltd.,
727 F.2d 1225 (D.C. Cir. 1994), and should take into account the severity
of the harm and the length of time that the injured party has suffered
from the harm. Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991, supra, at 14. A proper award must
meet two goals: that it not
be �monstrously excessive� standing alone, and that it be consistent
with awards made in similar cases. See Cygnar v. City of Chicago,
865 F.2d 827, 848 (7th Cir. 1989).
Complainant requests $125,000 in non-pecuniary compensatory damages,
arguing that the agency's discriminatory actions have caused him major
depression, emotional distress, and pain and suffering. In addition
to his own testimony, complainant presented evidence from Doctor A,
Doctor B, his mother and brother, three co-workers, as well as medical
records and expense sheets linking his emotional condition to the agency's
discrimination.
The agency found that $8,000 was an appropriate award of compensatory
damages for the emotional distress and related symptoms caused by the
agency's discrimination. The agency indicated that it not only considered
the nature, severity, and duration of complainant's emotional
distress and related symptoms, but also reviewed various Commission
compensatory damage awards which, in its view, were similar in nature
and severity in terms of harm to complainant.
In reviewing the record further, complainant stated he went into
depression and began to drink in order to sleep at night. According to
complainant, he isolated himself from his supervisor (the selecting
official) and other employees, such that going to work became the hardest
thing for him to do each morning. Having to continue to work with his
supervisor resulted in a lot of stress and anxiety. Complainant also
reiterates problems with weight gain, weight loss, isolating himself
from family members, a bad temper, and the feeling of helplessness.
Complainant indicated that he was shocked and disillusioned by not
being selected for promotion, because he thought his supervisor was a
fair person. He thus emphasizes that he had dedicated himself to his
work and his supervisor, so that when an opportunity for promotion came
up, there would be no problem for him.
Dr. A diagnosed complainant with �possible depression and anxiety
disorder� in February 1999.
Dr. B, in an evaluation that also took place in February 1999, indicated
that complainant �was experiencing anxiety and depression related to
work.�
Complainant's mother indicated complainant was depressed, moody, sad,
hurt, despondent, and withdrawn. Complainant's brother indicated
complainant was depressed, frustrated, withdrawn, lacked motivation
and self-worth, and also noted complainant's weight loss, sleep
deprivation, with some anxiety and stress. Prior to his nonselection,
complainant was described as self-motivated, focused, challenged, happy,
and encourageable. One of complainant's co-workers indicated that the
people in the office had something personal against complainant, because
he was standing up for his rights, and that complainant was marked as
a trouble maker. Another co-worker indicated that complainant always
worked alone, as far as he could get away from other people, and that
complainant came to work looking mad, depressed, and stressed. The third
co-worker stated complainant always looked depressed and stressed out,
and got upset very easily, especially when he talked about what he felt
his supervisor did to him.
On the other hand, in a letter dated October 13, 1999, Dr. B indicated
that complainant's clinical depression had improved on medication,
but that while some depressive symptoms persisted, he expected they
would continue to persist until the conflict on complainant's job
was resolved. Thus, it is significant that the agency adopted the AJ's
finding of discrimination on September 22, 1999; complainant was promoted
retroactively and awarded backpay with interest on or about January 4,
2000; and complainant received his full backpay with interest on or about
February 24, 2000. It would appear that complainant's job situation was
substantially resolved as early as September 22, 1999, but certainly by
February 24, 2000.
In addition, we note a somewhat puzzling statement by complainant
that he has kept a good attitude and continued to have a good working
relationship with his supervisor and the other employees. See Exhibit
A, Personal Statement by Complainant and Tr. 31. Finally, we note that
complainant has failed to respond to the agency's concern about the
extent to which at least some of complainant's symptoms relate to his
taking of Fen-Phen, especially in view of complainant's alleged lawsuit
against the manufacturers of the drug.
In sum, it appears the conflict on complainant's job has been resolved.
Accordingly, we conclude that complainant's primary suffering lasted
approximately two years. Nevertheless, we recognize that complete
obviation of his suffering may never end, although it would appear that
the harshest of the suffering should have been ameliorated. Complainant
also reviewed various Commission and judicial compensatory damage awards
which, in his view, justified his request for compensatory damages.
A number of Commission decisions have awarded non-pecuniary compensatory
damages in cases which we compare to complainant's. Lawrence v. Postal
Service, EEOC Appeal No. 01952288 (April 18, 1996) ($3,000 in damages
where complainant presented primarily non-medical evidence that
she was irritable, experienced anxiety attacks, and was shunned by
her co-workers); Rountree v. Department of Agriculture, EEOC Appeal
No. 01941906 (July 7, 1995) ($8,000 in non-pecuniary damages where
complainant received a low performance appraisal and was denied bonus
pay because of race and reprisal, medical testimony provided regarding
complainant's emotional distress, but the majority of complainant's
emotional problems were caused by factors other than the discrimination);
Jones v. Department of Defense, EEOC Appeal No. 01973551 (April 14,
2000)($9,000 in non-pecuniary damages based on complainant's statements
of the interference with family and marital relations, digestive problems,
headaches, anxiety, sleeplessness, and exhaustion resulting from agency's
discrimination); Baptieste v. Air Force, EEOC Appeal No. 01974616 (May
26, 2000) ($12,000 in non-pecuniary damages based on complainant's and
others' statements of emotional distress due to agency's discriminatory
termination, felt worthless and depressed, negative attitude about
herself and outside world, isolated from coworkers, nausea and insomnia,
intense feelings of anxiety, and irritability, had to declare bankruptcy);
Bever v. Department of Agriculture, EEOC Appeal No. 01953949 (October 31,
1996) ($15,000 where situational anxiety linked to ongoing harassment,
medication required, and symptoms included uncontrolled crying,
weight gain, and depression); Terrell v. Department of Housing
and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996)
($25,000 in non-pecuniary damages based on �quite serious� emotional
harm, lasting upwards of two years, frequent crying, introversion,
disruptions in relationships with family and friends, suicidal thoughts,
depression, sleep problems, marital (separation from wife ensued)
and financial difficulties exacerbated, although majority problems not
shown caused by discrimination); Finlay v. Postal Service, EEOC Appeal
No. 01942985 (April 29, 1997)($100,000 in non-pecuniary damages for severe
psychological injury over four years which was expected to continue for an
indeterminate time, including ongoing depression, frequent crying, concern
for physical safety, loss of charm, lethargy, social withdrawal, concern
for physical safety, recurring nightmares and memories of harassment,
a damaged marriage, stomach distress, and headaches).
Based on the foregoing evidence, the Commission finds that complainant is
entitled to non-pecuniary damages in the amount of $12,000. This amount
takes into account the severity and duration of the harm sustained by
complainant by the agency's actions, consideration of damage awards
reached in comparable cases, as well as the fact that some of the
complainant's concerns were likely influenced by his taking the drug
Fen-Phen. The Commission further notes that this amount meets the goals
of not being motivated by passion or prejudice, not being �monstrously
excessive� standing alone, and being consistent with the amounts awarded
in similar cases. See Cygnar, 865 F.2d at 848.<6>
Interest on Non-pecuniary Damages Award
Complainant requested $17,499.84 in interest on his requested $125,000
non-pecuniary damages award. This figure is based on a 7% rate, accruing
beginning in December 1997, and continuing for two years. We deny
complainant's request for interest on his non-pecuniary damages award.
Complainant would be entitled to an award of interest for any agency
delay in paying proven compensatory damages. See April v. Department
of Agriculture, EEOC Appeal No. 01963775 (June 5, 1997). That interest
would not begin to accrue, however, until the agency actually incurs
the underlying liability. See Cole v. United States Postal Service,
EEOC Petition No. 04950009 (February 19, 1997). In the case at hand, the
amount of compensatory damages is the subject of this appeal. The agency
will therefore not incur interest liability until the date that this
decision becomes final. The instant case is distinguishable from McCann
v. Department of Air Force, EEOC Appeal No. 01971851 (October 23, 1998).
In McCann, the agency had issued a final decision in which it promised
to pay complainant a specific sum as compensatory damages by a specific
date, but failed to do so. Here, the FAD made no guarantee that the
compensatory damages award would be paid by a certain date and given
complainant's appeal, we find that the agency is justified in waiting
to award compensatory damages until this decision becomes final.<7>
The agency can avoid an interest payment if it promptly complies with
our order.
EQUITABLE RELIEF
Compensation for Annual and Sick Leave
A request for compensation for leave taken, due to emotional distress,
as a result of discrimination, is a claim for equitable relief, not
compensatory damages. McGowan-Butler v. Department of Treasury, EEOC
Request No. 05940636 (September 9, 1994). See also Sprague v. Department
of Agriculture, supra. The Commission has previously held that restoration
of leave taken for purposes of avoiding or recovering from discriminatory
conduct is a valid component of equitable relief. See Whiting v. ACTION,
EEOC Request No. 05900093 (June 27, 1990). In order to be entitled to
leave restoration, the employee must demonstrate a causal nexus between
the harassment (discrimination) and need to take leave. Velez v. United
States Postal Service, EEOC Appeal No. 01902746 (November 16, 1990).
1. Annual Leave
Complainant requested compensation for 487 hours of annual leave, at the
rate of $18.31 per hour, for a total request of $8,916.97. The agency,
in its FAD (Damages), denied complainant any compensation or restoration
of annual leave, because complainant failed to prove that the leave
taken resulted from the discrimination.
On appeal, complainant has still declined to attempt to show that the
leave was taken resulting from the discrimination. Accordingly, the
request is denied.
2. Sick Leave
Before the agency, complainant requested compensation totaling $4,742.29,
for 259 hours of sick leave at the rate of $18.31 per hour, taken
from December 20, 1997, to September 25, 1999, allegedly resulting
from emotional distress from the discrimination. The agency, in its
FAD (Damages), indicated that compensation for leave as a result of
discrimination is a claim for equitable relief, and that compensatory
damages do not include equitable relief authorized by Title VII. The
agency thus denied complainant any of the requested compensation for sick
leave, but considered complainant's request as one for equitable relief.
For purposes of equitable relief, the agency emphasized that complainant
was required to demonstrate a causal nexus between the discrimination
and the need to take leave. The agency concluded that complainant's
medical documentation supported two absences totaling 20 hours sick leave.
Accordingly, the agency, in its FAD (Damages), restored 20 hours sick
leave to complainant.
On appeal, complainant again submits he is entitled to 259 hours of sick
leave totaling $4,742.29. Complainant indicates he was very dedicated
to his work and that his job was a large part of his life and the non
selection caused his emotional state to down-spiral to a point where
he could not face going to work on occasions due to several mental and
emotional breakdowns. He states that his co-workers viewed him as a joke
after his non-selection. He points to his sick leave before December 5,
1997, and the allegedly abnormal rate at which he used sick leave after
December 5, 1997.
On appeal, complainant has still declined to attempt to show the nexus
between any of the disputed leave taken and the discrimination. The
record suggests complainant very possibly had medical problems unrelated
to his emotional problems incurred pursuant to the discrimination by
the agency, e.g., Fen-Phen, the use of other prescription drugs, and
various physical ailments. Accordingly, the request is denied.
Retirement Income and Investment Opportunity Issues
Complainant requests $3,800 in monetary reimbursement for his loss of
increased contributions to his retirement plan, as well as the benefit
of compounding the contributions from the time of the discriminatory
action and into the future, and income lost due to missed investment
opportunities. Complainant thus points out, for example, that he lost
interest income from his lack of ability to invest his extra income
from the promotion he would have received absent the discrimination.
The agency responded that this is essentially a claim for backpay with
interest. The agency thus emphasized that on or about January 4, 2000,
complainant was awarded a retroactive promotion and payment of backpay
with interest, retroactive to December 5, 1997. The agency emphasizes
that complainant received the remaining backpay with interest on or
about February 24, 2000.
Monetary reimbursement for the loss of contributions to his retirement
plan, as well as the benefit of compounding the contributions from the
time of the discriminatory action, and on into the future, is essentially
a claim for equitable relief. See Bever v. Department of Agriculture,
supra, 1996) (complainant's request for compensation for losses in past
and future earnings, including for loss of future pension benefits,
denied�loss of earnings an equitable remedy and not included under
compensatory damages). See 42 U.S.C. � 1981a(b)(2). The opportunity
cost of lost investment opportunities is also essentially a claim for
equitable relief.
For purposes of equitable relief, complainant's methodology was not
sufficiently justified. For example, no rationale was presented
as to the basis for the contributions and rate of return sought.
In any event, to the extent complainant has received backpay with
interest, he has not lost his ability to contribute to his retirement.
Indeed, the backpay, and the compounded interest awarded, addresses the
complainant's loss of income, including for purposes of retirement, from
December 5, 1997, to the date of receipt. Such income was essentially
deferred until receipt. Subsequently, complainant could invest in his
retirement and the compounding issue would be effectively thereafter
be addressed. Nevertheless, if not already appropriately addressed by
the agency, complainant may be entitled to retroactive participation in
the Thrift Savings Plan in the form of agency contributions as well as
his own contributions. Of course, this matter should be pursued with
the agency in the first instance. See Kessler v. United States Postal
Service, EEOC Appeal No. 1A01242 (September 27, 2000). See also Gause
v. Social Security Administration, EEOC Appeal No. 01972427 (March 8,
2000) (complainant restored to reflect balance would have had if not
been terminated, contributions and interest included).
ATTORNEY'S FEES AND COSTS
By regulation, a federal agency must award attorney's fees, in accordance
with existing law, for the successful processing of an EEO complaint.
29 C.F.R. � 1614.501(e). Attorney's fees, paid by the agency, are also
appropriate for an attorney's processing of a compensatory damages claim.
Id. The fee award is ordinarily determined by multiplying a reasonable
number of hours expended on the case by a reasonable hourly rate,
also known as a �lodestar.� See 29 C.F.R. � 1614.501(e)(2)(ii)(B);
Bernard v. Department of Veterans Affairs, EEOC Request No. 01966861
(July 17, 1998). In determining the number of hours expended the
Commission recognizes that the attorney �is not required to record in
great detail the manner in which each minute of his time was expended.�
See Bernard, supra. However, the attorney does have the burden of
identifying the subject matters which he spent his time by submitting
sufficiently detailed and contemporaneous time records to ensure that
the time spent was accurately recorded. See Bernard, supra.
Further, a reasonable fee award may be assessed in light of factors such
as: (1) the time required (versus time expended) to complete the legal
work; (2) novelty or difficulty of the issues; (3) the requisite skill to
properly handle the case; (4) the degree to which counsel is precluded
from taking other cases; (5) the relief sought and results obtained;
and (6) the nature and length of the attorney-
client relationship. See Cerny v. Department of the Army, EEOC Request
No. 05930899 (October 19, 1994).
Complainant is only entitled to an award for time reasonably expended.
It does not always follow that the amount of time actually expended is
the amount of time reasonably expended. Elvin v. Department of Labor,
EEOC Request No. 01943425 (August 31, 1995). Rather, �billing judgment�
is an important component in fee setting, and hours that would not be
properly billed to a private client are also not properly billed to
the agency pursuant to a successful EEO claim. Id. Counsel for the
prevailing party should make a �good faith effort to exclude from a fee
request hours that are excessive, redundant or otherwise unnecessary.�
See Bernard, supra.
In the FAD (Damages), the agency did not feel any additional attorney's
fees were appropriate at that time, since entitlement may have been
affected by prior agreement limiting the amount of attorney's fees to be
paid. The agency thus noted that complainant's attorney had already been
paid $25,935.55 on or about December 22, 1999. Nevertheless, the agency
acknowledges that the present appeal is an appeal of the FAD (Damages).
However, in the FAD (Damages), the agency requested that claims for
attorney's fees or costs, outside those covered by the prior agreement,
must be supported by an affidavit and a verified statement of attorney's
fees (including expert witness fees) and other costs, as appropriate, to
the designated agency representative within 30 calendar days of receipt of
the FAD (Damages). It further reiterated inter alia that a statement of
attorney's fees and costs must be accompanied by an affidavit executed
by the attorney of record itemizing the attorney's charges for legal
services. The FAD (Merits) reiterated similar guidance for complainant.
Complainant's attorney summarily requests $1,864.05 based on 12.25
hours of attorney time at $150.00/hour, added to $17.50 in photocopying,
and $9.05 in postage. The attorney submits that
the work related to proof of the compensatory damages incurred
by complainant, calculating the compensatory damages, collating
the exhibits, and drafting the appeal. It is also apparent that
the requested fees and costs cover the work done pursuant to the FAD
(Damages) proceeding, as well as the present proceeding. Complainant's
attorney nevertheless did not comply with the requirements suggested by
the FAD (Damages), FAD (Merits), or with the requirements set forth in
the Commission's Management Directive for 29 C.F.R. Part 1614 (EEO-110)
at 11-8 through 11-9 (November 9, 1999), which are substantially similar
to the agency's guidance. E.g., request unsupported by affidavit,
lacking in itemization.<8>
The agency, in its response to the complainant's appeal, did not oppose
the fee request or its bases. The attorney's rate, hours expended,
and the related costs do not appear unreasonable. Accordingly, we
will grant the request. Complainant and his attorney are nevertheless
advised that they should comply with, at a minimum, the Commission's
Management Directive.
CONCLUSION
Based upon our review of the record, and for the foregoing reasons,
the Commission finds that complainant is entitled to receive an award
of compensatory damages in the amount of $12,798.34
of which $12,000.00 constitutes compensation for non-pecuniary expenses,
and $798.34 constitutes compensation for complainant's out-of-pocket
expenses.
The Commission also finds that complainant is entitled to receive an
additional award of attorney's fees in the amount of $1,864.05.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE the agency's final
decision and REMAND this case to the agency to take remedial actions in
accordance with this decision and ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within thirty calendar days of the date that this decision becomes
final, the agency shall tender to complainant $798.34 in past pecuniary
damages and $12,000.00 in non-pecuniary damages, a total of $12,798.34.
2. Within thirty days of the date on which this decision becomes final,
the agency shall tender to complainant $1,864.05 (12.25 hours at
$150.00/hour) in attorney's fees and $26.55 in costs.
3. The agency is further directed to submit a report of compliance,
as provided in the statement below entitled �Implementation of the
Commission's Decision.� The report shall include evidence that the
corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
(R0900)
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 (Z1199)
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
February 28, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Under the Commission's revised regulations, the AJ retains jurisdiction
over relief questions, including compensatory damages and attorney's
fees or costs. However, the AJ's
decision was dated July 22, 1999, prior to the effective date of the
Commission's revised regulations.
3 On or about January 4, 2000, complainant was awarded a retroactive
promotion to the position of Heavy Mobile Equipment Repair Inspector,
WG-5803-10, and payment of back pay with interest, retroactive to December
5, 1997. Complainant received his full back pay with interest on or
about February 24, 2000.
4 However, in detailing the complainant's appeal, there are some minor
differences in complainant's original requests before the agency, which
we discuss below.
5 In this two-year base he delineates his expenses included $57.02
Walgreens (Wellbutrin Prescription), $22.51 Walgreens (Wellbutrin
Prescription), $1,811.47 OneCare Family and General Practice, $1,199.01
Veterans Administration Hospital Account, $1,616 Baylor Methodist
Primary Care Associates, and $256.25 Laboratory Corporation of America.
Complainant appears to have inadvertently failed to adjust for his revised
figure involving OneCare Family and General Practice from $1,811.47 to
$509.52, as discussed, supra.
6 Complainant also asserted that he should receive a monetary award for
alleged harassment. Complainant's claim throughout the proceedings was
that he was non-selected for promotion based upon a prohibited personnel
action, not that he was subjected to harassment based upon his race.
Even assuming complainant had presented a claim for harassment, there
was no finding that complainant was harassed.
7 The FAD mandated that payment of the damages awarded would ensue
upon acknowledgment of agreement by complainant, but indicated that if
complainant disagreed with the amount awarded, appeal could be made
to the Commission for final adjudication of the amount owed him by the
agency.
8 In a letter dated December 22, 1999, from the agency's Command Executive
Officer, Headquarters, United States Army 90th Regional Support Command,
North Little Rock, Arkansas, to the agency's Director, Equal Employment
Opportunity Compliance and Complaints Review Agency, Arlington, Virginia,
declined the request for additional attorney's fees in the amount of
$1,864.05, because the parties had previously agreed to attorneys' fees
for over $25,000. The FAD (Damages) cited to this letter in indicating
that complainant may not be entitled to additional attorney's fees.
However, involving the present appeal, the agency makes no suggestion
that the prior agreement foreclosed the complainant's present request.