07A30101
04-05-2004
Tharo Varnado Jr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Tharo Varnado Jr. v. Department of Veterans Affairs
07A30101
April 5, 2004
.
Tharo Varnado Jr.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A30101
Agency No. 2003-1205
Hearing No. 310-A1-5304X
DECISION
Following its May 19, 2003 final order, the agency filed a timely appeal
which the Commission accepts pursuant to 29 C.F.R. � 1614.405. On appeal,
the agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) finding that the agency discriminated against
complainant on the basis of retaliation with respect to his nonselection
dated June 7, 2001. The agency also requests that the Commission affirm
the AJ's finding that complainant was not discriminated against due to
his race, sex and age in connection with his nonselections dated July
21, 2000, August 10, 2000 and June 7, 2001. For the following reasons,
the Commission REVERSES the agency's final order in part.
Complainant, a Police Officer employed at the agency's VA Hospital in
Temple, Texas (�facility�), filed a formal EEO complaint with the agency
on September 3, 2000, alleging that the agency had discriminated against
him 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., on
the bases of race (African-American), sex (male), age (D.O.B. 3/22/47),
and reprisal for prior EEO activity when: (1) he was not selected for
promotion to the position of Supervisory Police Officer, GS-083-7 on
July 21, 2000; and (2) he was not selected for the position of Police
Officer Trainer on August 10, 2000. Complainant then filed a formal
complaint alleging discrimination on the bases of race and retaliation
when he was not selected for the position of Supervisory Police Officer
(SPO), GS-083-7, on June 7, 2001.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an AJ.
The AJ held hearings on June 19, 2002, October 30, 2002 and November 30,
2002 and issued a bench decision on December 1, 2002.
In her decision, the AJ found that complainant was retaliated against
for prior EEO activity when he was not selected for the SPO position on
June 7, 2001. As a result, the AJ ordered the remedies of: (1) back pay
with interest, from the time of his non-selection for the SPO on June 7,
2001 until the date of his selection to a similar position on January 26,
2003; (2) non-pecuniary compensatory damages in the amount of $5,000.00;
and (3) the posting of a notice in the facility. The AJ found that
the agency did not discriminate against complainant on any basis in
connection with his nonselections dated July 21, 2000 and August 10,
2000, nor did the agency discriminate against complainant on the bases
of race, sex or age regarding the June 7, 2001 non-selection. The AJ
also found that complainant was not entitled to an award of attorney's
fees, due to the finding that complainant's counsel was delinquent in
providing damages information to the AJ. In so finding, the AJ denied
complainant's second untimely motion to extend the time within which to
provide data on compensatory damages.
The agency's final order rejected the AJ's decision in part. The final
order agreed with and accepted the AJ's finding that complainant was
discriminated against due to retaliation regarding his nonselection
dated June 7, 2001. In addition, the final order agreed with the AJ's
decision that complainant was not discriminated against on any basis with
regard to his other claims of discrimination. The final order further
stated that while the agency accepted the remedial relief ordered,
it disagreed with and rejected that part of the AJ's decision which
provided an award of $5,000.00 in compensatory damages. As a result,
the final order stated that the agency would not fully implement the AJ's
decision, but did accept the AJ's remedies of back pay with interest
from June 7, 2001 through January 26, 2003 as well as the placing of a
posting at the facility. The agency subsequently stated that it would
delay payment of the compensatory damages ordered in the AJ's decision
until after the appeal was resolved before the Commission. In support
of its finding, the agency stated that there was no basis upon which to
find that complainant's sleep disorder, headaches, marital acrimony or
other mental health issues such as post-traumatic stress disorder (PTSD)
were related to his non-selection in June of 2001. Further, the agency
contended that the conditions complainant described were pre-existing
before his non selections. As such, the agency alleged that if the
Commission found the act of discrimination exacerbated complainant's PTSD,
the award of compensatory damages must be decreased proportionately to
represent that share of damages caused by the agency actions.<1>
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
Addressing the merits of complainant's allegations, after a careful
review of the record we discern no basis to disturb the AJ's finding of
discrimination on the basis of retaliation regarding his nonselection for
the SPO position on June 7, 2001. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws. In addition, the Commission concurs
with the AJ's finding that complainant failed to establish that he was
discriminated against on any basis regarding his non selections for the
other positions at issue in 2000 and 2001.
Turning to the AJ's award of non-pecuniary compensatory damages, we
note that when discrimination is found, the agency must provide the
complainant with a 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. U.S. Postal Service, EEOC Appeal
No. 01933395 (July 21, 1994). 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 compensatory damages 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, 119 S.Ct. 1906
(1999), the Supreme Court held that Congress afforded the Commission
the authority to award compensatory damages in the administrative process.
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), req. for recons. den.,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
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. EEOC Notice
No. 915.002 at 8. Objective evidence of compensatory damages can include
statements from the complainant concerning his or her emotional pain
or suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation, injury
to credit standing, loss of health, and any other nonpecuniary losses that
are incurred as a result of the discriminatory conduct. Statements from
others, including family members, friends, health care providers, other
counselors (including clergy) could address the outward manifestations
or physical consequences of emotional distress, including sleeplessness,
anxiety, stress, depression, marital strain, humiliation, emotional
distress, loss of self-esteem, excessive fatigue, or a nervous breakdown.
See Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996), citing Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993).
The agency argues on appeal that prior to its unlawful retaliatory action,
and as early as November of 2000, complainant was seeking therapy for
sleep disorder, headaches, marital disorder and PTSD, and that this fact
mandates a reduction in the AJ's nonpecuniary damages award. We disagree.
The amount of an award for non-pecuniary compensatory damages must also
consider the extent of the agency's liability when the harm caused by its
discriminatory action may be an aggravation of a pre-existing condition.
Where a complainant has a pre-existing emotional condition and that
condition deteriorates as a result of discriminatory conduct, the agency
is liable for all additional harm. Enforcement Guidance at 11.
In considering such cases, the Commission relies on the principle that
"a tortfeasor takes its victims as it finds them." Wallis v. United
States Postal Serv., EEOC Appeal No. 01950510 (Nov. 13, 1995) (citing
Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th
Cir. 1987)). There are two exceptions to this general rule, however.
First, when a complainant has a pre-existing condition, the agency
is liable only for the additional harm or aggravation caused by the
discrimination. Enforcement Guidance at 12. Second, if the complainant's
pre-existing condition inevitably would have worsened, the agency is
entitled to a reduction in damages reflecting the extent to which the
condition would have worsened even absent the discrimination. Wallis
v. United States Postal Serv., EEOC Appeal No. 01950510 (Nov. 13, 1995)
(citing Maurer v. United States, 668 F.2d 98, 99-100 (2d Cir. 1981).
The evidence presented by complainant regarding the nature, severity, and
duration of the nonpecuniary harm he suffered as a result of the unlawful
retaliation included his own testimony at the hearing. Complainant
testified that subsequent to the retaliatory non selection, he had medical
problems, including PTSD, stress headaches, problems sleeping and marital
difficulties. The AJ found that while complainant's testimony on these
matters related to an earlier promotion for which discrimination was not
found, this evidence was generally related to complainant's non-selections
in the instant case since it covered essentially the same time period.
However, the AJ noted that other than listing these items of distress,
complainant failed to offer additional evidence of harm.
In the instant case, we concur with the AJ's finding that complainant's
testimony regarding his emotional harm is sufficient to establish his
entitlement to non-pecuniary compensatory damages. While the agency is
correct that complainant sought counseling for his emotional problems
prior to the discriminatory non selection in June of 2001, we find that
complainant's testimony makes clear that any progress he was having by
undergoing counseling was retarded by the discriminatory non selection
at issue. At the hearing on October 30, 2002, complainant stated that
he has PTSD, and had been attending PTSD counseling since filing his
first EEO complaint in 2000. October 30, 2002 Hearing Transcript (HT)
at 72-73. Complainant stated that his stress level has been constantly
increasing since filing his initial EEO complaint. He also stated
that although his PTSD was rated as 70% due to his service in Vietnam
in the 1970s, his level of stress has been increasing since October or
November of 2000. Id. Complainant stated that he had not needed to
get professional help for his PTSD until around the time of his initial
EEO complaints, at which time he had to seek counseling. HT at 75.
He also stated that he did not believe that he would have had to seek
professional help had it not been for the exacerbating stress associated
with the EEO complaints. HT at 76. As such, complainant's testimony
establishes that while his PTSD was clearly a pre-existing condition
and his need for counseling began with the filing of his initial EEO
complaint in 2000, his level of stress increased during the period before
the October 2002 hearing, which included the discriminatory nonselection
at issue in June of 2001. It appears reasonable that had complainant not
been discriminated against by the agency, his PTSD stress level may have
decreased and he may not have needed to continue professional counseling.
Further, some of complainant's other symptoms such as stress headaches
may have ceased had the discriminatory non selection not occurred,
and the agency has proffered no evidence to contradict complainant's
hearing testimony. As we find that complainant's uncontradicted testimony
establishes that his PTSD stress level and related symptoms continued or
increased at least in part due to the discriminatory non selection at
issue, we must consider whether the AJ's award of compensatory damages
was consistent with awards in similar cases.
Court awards for emotional distress or mental anguish which, as here,
did not include major depression have ranged from $500.00 to $100,000.00.
After a thorough review of the record, and given the severity, nature and
duration of distress experienced by complainant, we find that the AJ's
award of $5,000.00 is supported by substantial evidence. Complainant has
not testified that he was unable to work or otherwise function as a result
of PTSD, and he has not stated the need for counseling other than the
PTSD sessions that he described in at the hearing. In concurring with
the AJ's finding regarding compensatory damages, we have considered the
agency's contention that complainant's PTSD and other emotional conditions
existed prior to the act of discrimination. However, as stated above,
we credit complainant's testimony that his stress level increased
during the period he was not selected for the SPO position in June of
2001 and he continued to have stress headaches and trouble sleeping.
We note that non-pecuniary compensatory damages are designed to remedy
a harm and not to punish the agency for its discriminatory actions.
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 311-12 (1986)
(stating that compensatory damages determination must be based on
the actual harm sustained and not the facts of the underlying case).
We further note that this award is not "monstrously excessive" standing
alone, is not the product of passion or prejudice, and is consistent
with the amount awarded in similar cases, as cited above. Ward- Jenkins
v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999)
(citing Cygnar v. Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
reverses the agency's final order in part and remands the matter to the
agency to take corrective action in accordance with this decision and
the Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
and to the extent it has not already done so, the agency is ordered to
take the following remedial action:
1. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant to
29 C.F.R. � 1614.501. The back pay period shall be calculated from June
7, 2001 through January 26, 2003. Complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is 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) calendar days of the date the
agency determines the amount it believes to be due. The complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
2. The agency shall tender to complainant non-pecuniary compensatory
damages in the amount of $5,000.00.
3. The agency shall post copies of the attached notice in accordance
with the statement entitled
"Posting Order."
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's actions in accordance with this order.
POSTING ORDER (G0900)
The agency is ordered to post at its Temple, Texas facility in 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 ninety (90) 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.
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
April 5, 2004
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated ___________________, which
found that a violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., has occurred at the
Department of Veterans Affairs facility in Temple, Texas (hereinafter
the facility).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or PHYSICAL OR MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility was found to have violated Title VII when an employee was
not selected for a position due to retaliation for prior EEO activity.
The facility was ordered to: (1) award the employee back pay and
benefits; (2) pay the employee compensatory damages in the amount of
$5,000.00; and (3) post this notice.
The facility will comply with such federal law and will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, federal equal employment
opportunity law.
______________________________
Date Posted: ____________________
Posting Expires: _______________
29 C.F.R. Part 1614
1 The Commission notes that complainant has not challenged the AJ's
finding that attorney's fees would not be awarded in the instant
case due to counsel's delinquency in providing relevant information
regarding damages. We also note that complainant has not challenged
the AJ's findings that he was not discriminated against with regard to
the non selections in July of 2000 and August 2000.