01A33904
12-04-2003
Paul R. McDonnell, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Paul R. McDonnell v. Department of the Navy
01A33904
December 4, 2003
.
Paul R. McDonnell,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A33904
Agency No. 99-68585-004
DECISION
Complainant timely initiated an appeal concerning an award of compensatory
damages from his complaint of unlawful 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the following
reasons, the Commission MODIFIES the agency's final decision.
In a complaint dated April 19, 1999, complainant alleged that the agency
discriminated against him on the basis of disability (neurological
deficit in left foot and leg), and reprisal (prior EEO activity) when,
on February 12, 1999, he was offered a position on the second floor of
an agency facility despite his request for an accommodation which did
not require him to climb stairs. In a final agency decision dated April
28, 2000, the agency found that complainant failed to establish that
he was discriminated against as he alleged. On appeal, we reversed the
agency's final decision and found that complainant had been discriminated
on the basis of disability, as the agency unduly delayed his request
for a reasonable accommodation. See McDonnell v. Dept. of the Navy,
EEOC Appeal No. 01A04036 (Sept. 13, 2002). Among other remedies, the
agency was ordered to give complainant a notice of his right to submit
evidence in support of his claim for compensatory damages and then issue
a final agency decision (FAD) on complainant's claim for those damages.
On June 3, 2003, the agency issued its FAD on compensatory damages.
The FAD stated that it had considered all of the evidence complainant's
counsel submitted with his petition for compensatory damages. The FAD
noted that complainant alleged that due to the facility's delay in
accommodating his disability, he exacerbated his leg injury. In addition,
the FAD noted that complainant alleged that as the result of filing his
EEO complaint, he became severely depressed and sought psychiatric help.
The FAD also noted that complainant alleged that as the result of the
discrimination, he felt humiliated and embarrassed and suffered loss of
enjoyment of life.
In its analysis, the FAD noted that complainant did not claim past
pecuniary damages, and that he failed to prove that there was a
causal connection between the $10,000.00 in psychiatric expenses he
sought and the acts of discrimination. As such, his claim for future
pecuniary damages was denied. In determining the amount of non-pecuniary
compensatory damages, the FAD considered awards in similar cases, and the
nature and severity of the emotional distress, and awarded complainant
$4,000.00 in non-pecuniary damages.
On appeal, essentially restates allegations made before the agency.
Initially, complainant alleges that the agency ignored the statement of
complainant's psychiatrist that the treatment for emotional distress
complainant suffered as a result of the agency's discrimination would
cost between between $8,000.00 and $10,000.00. Complainant alleged
that his psychiatrist established the causal nexus between the agency's
actions and his emotional injury, and contends that the fact that he
was previously under the psychiatrist's care did not stop the agency
from liability. Complainant further alleged that the agency's FAD
awarded grossly insufficient non-pecuniary damages, and requested that
the agency award him at least $200,000 in non-pecuniary damages to
compensate him for exacerbation of his leg and back condition, sexual
dysfunction and marital strain, all of which are the result of the
agency's discrimination. Complainant's counsel contends that a review
of Commission cases similar to those of complainant indicates that the
award is in the range of $100,000.00 and $150,000.00.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes unlawful
intentional discrimination under either Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. or Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. may receive for past and future pecuniary losses
(i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain
and suffering, mental anguish) as part of this "make whole" relief.
42 U.S.C. � 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999),
the Supreme Court held that the Commission has the authority to award
compensatory damages in the federal sector EEO process.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC's Enforcement
Guidance, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992) ("Enforcement Guidance").
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. Id. at 11-12, 14; Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded
should reflect the extent to which the agency's discriminatory action
directly or proximately caused harm to the complainant and the extent
to which other factors may have played a part. Enforcement Guidance
at 11-12. The amount of non-pecuniary damages should also reflect the
nature and severity of the harm to the complainant, and the duration or
expected duration of the harm. Id. at 14.
Initially, we will address complainant's contention that the FAD erred
in finding that he was not entitled to reimbursement for future pecuniary
damages for psychiatric costs. Future pecuniary
losses are losses that are likely to occur after resolution of a
complaint. Enforcement Guidance at 9. For claims seeking pecuniary
damages, such objective evidence should include documentation of
out-of-pocket expenses for all actual costs and an explanation of the
expense, e.g., medical and psychological billings, other costs associated
with the injury caused by the agency's actions, and an explanation for the
expenditure. Id. at 9. In the instant case, complainant alleges that he
should be awarded $10,000.00 to cover the cost of psychological treatment
for the harm he suffered due to the agency's actions. In support of his
claim for pecuniary damages, complainant has submitted documentation
from his treating psychiatrist. The psychiatrist stated that he
had previously treated complainant for major depression, he �recently
exhibited intense anxiety and depression, which was triggered by his job
situation,� and would require psychiatric therapy sessions for two years.
Psychiatric Summary of December 16, 2002 at 1. While the agency noted
in denying complainant's initial request that he had seen a psychiatrist
prior to the acts of discrimination, the Commission has found that an
agency may be liable for any aggravation of a pre-existing condition
caused by the agency's discriminatory conduct. McCann v. Dept. of
the Air Force, EEOC Appeal No. 01971851 (Oct. 23, 1998). Based on the
psychiatrist's medical opinion, we find that complainant has demonstrated
the causal nexus between the acts of discrimination and the need for his
psychiatric treatment. However, we concur with the agency's contention
that complainant's physician has failed to demonstrate the rationale
for the anticipated length of the treatment or a specific breakdown of
the cost. We further note that complainant has not demonstrated that
all of the psychiatric treatment would be for conditions incurred by the
acts of discrimination. As such, after a careful review of the record,
we award complainant $5,000.00 for future medical expenses.
Next addressing the issue of non-pecuniary damages, we note that the
record contains complainant's testimony that as a result of the disability
discrimination, he suffered humiliation, exacerbation of his physical
and psychological problems, marital tension, insomnia and became unable
to work. After a careful review of the record, as well as damage awards
reached in comparable cases, the Commission finds that the complainant is
entitled to an award of non-pecuniary damages in the amount of $7,500.00.
See, e.g., Jones v. Department of Defense, EEOC Appeal No. 01973551 (April
14, 2000) ($9,000.00 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 the agency's discrimination); 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); and Benson v. Department of Agriculture, EEOC
Appeal No. 01952854 (June 27, 1996) ($5,000.00 in non-pecuniary damages
where complainant was denied promotional opportunities and consequently
experienced stress, skin rashes, withdrawal, and isolation).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to MODIFY the agency's FAD regarding
the amount of compensatory damages to be awarded.
ORDER
1. Within sixty (60) days of this decision becoming final, the agency
shall pay complainant $5,000.00 in pecuniary damages to compensate
complainant for future medical expenses he incurred or will incur as a
result of the agency's violation of the Rehabilitation Act.
2. Within sixty (60) days of this decision becoming final, and to the
extent it has not already done so, the agency shall pay complainant
$7,500.00 in non-pecuniary damages to compensate complainant for the
pain and suffering he experienced as a result of the agency's violation
of the Rehabilitation Act.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (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
December 4, 2003
__________________
Date