01a43938
04-07-2005
Lori A. Adams, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Lori A. Adams v. Department of Veterans Affairs
01A43938
April 7, 2005
.
Lori A. Adams,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A43938
Agency No. 960646
Hearing No. 270-96-9096X
DECISION
Complainant timely initiated an appeal<1> from a final agency decision
(FAD) concerning the amount of compensatory damages to which complainant
was entitled as a result of a finding of sex discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission affirms the FAD.
BACKGROUND
In her formal complaint, complainant alleged that she was discriminated
against based on her sex when management failed to promote her to
an Addiction Therapist, GS-11 position. At the conclusion of the
investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, on November 30, 1998, the AJ issued a decision
finding discrimination. Specifically, the AJ concluded that complainant
established that it was more likely than not that the reason provided
by the agency, namely that the duties performed by comparative males
employees (C1 and C2) were more complex than complainant's duties, was
a pretext for sex based discrimination. In reaching this conclusion,
the AJ found that there was no appreciable difference in the work
performed by complainant, C1 and C2, and that the agency's reason was
unworthy of credence. The AJ awarded complainant compensatory damages
and attorney's fees and costs.
In its first FAD, dated February 10, 1999, the agency rejected the AJ's
finding. The agency concluded that complainant was not discriminated
against. Specifically, the agency found that the pay differential
between complainant and C1 and C2 was based on a job classification
system that was applied equally to male and female employees. Complainant
appealed the agency's decision, and on November 17, 2000 the Commission
reversed the agency's FAD and remanded the matter to the agency to take
remedial action. See Adams v. Department of Veterans Affairs, EEOC Appeal
No. 01992806 (November 17, 2000). Specifically, we ordered the agency to
promote complainant to the GS-11 level retroactive to June 14, 1992; to
determine the appropriate amount of back pay, interest and other benefits
due complainant, and we remanded the issue of compensatory damages to
the Hearings Unit of the Commission's New Orleans District Office.
On March 29, 2002, the AJ issued a decision on compensatory damages.
The AJ concluded that complainant was entitled to an award of $7,000.00
dollars in non-pecuniary compensatory damages. The agency fully
implemented the AJ's decision, and on May 8, 2002 paid complainant the
amount of $7,000.00. It is from the AJ's decision on compensatory damages
that complainant now appeals. Specifically, complainant contends, among
other things, that she should be granted a higher amount of non-pecuniary
compensatory damages due the devastating psychological effect caused by
the agency's action.
There is no precise formula for determining the amount of damages for
non-pecuniary losses, except that the award should reflect the nature and
severity of the harm and the duration or expected duration of the harm.
Loving v. Department of the Treasury, EEOC Appeal No. 01955789 (August 29,
1997); Rountree v. Department of Agriculture, EEOC Appeal No. 01941906
(July 7, 1995). We note 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).
Based on complainant's statement and the AJ findings, the Commission
concludes that the agency action caused complainant to suffer
emotional distress. Complainant's statements show that the agency's
discrimination caused her to develop feelings of low-self-esteem,
humiliation, hyper-vigilance, increased anxiety, and feelings of
hopelessness. Given the severity and duration of the emotional distress,
the Commission finds that the AJ's award of $7,000.00 in non-pecuniary
damages was appropriate. See Tula v. Department of the Navy, EEOC Appeal
No. 01A13645 (August 30, 2002) ($5,000.00 in non-pecuniary damages based
on complainant's testimony reveals that she experienced depression,
anxiety attacks, withdrawal and humiliation); Kennedy v. Department
of the Army, EEOC Appeal No. 01A33269 (October 6, 2004) ($7,000.00 in
non-pecuniary damages where complainant presented sufficient objective
evidence to establish that he had persistent emotional harm attributable
to his non-selection); Butler v. Department of Agriculture, EEOC Appeal
No. 01971729 (April 15, 1999) ($7,500.00 in non-pecuniary damages based
on complainant's testimony regarding his emotional distress). Therefore,
we conclude that the award and payment of $7,000.00 in non-pecuniary
damages is appropriate, and we AFFIRM the agency's final decision.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
April 7, 2005
Date
1Complainant's appeal was received at the
Commission on May 15, 2002.
2The record shows that the agency already has paid complainant $7,000.00
in non-pecuniary damages.