01A13275
03-19-2003
Victor F. Williams, Jr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Victor F. Williams, Jr. v. Department of Veterans Affairs
01A13275
March 19, 2003
.
Victor F. Williams, Jr.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A13275
Agency No. 980232
DECISION
Complainant timely initiated an appeal from the agency's final
decision (FAD2) dated March 30, 2001, concerning his claim for
compensatory damages. This claim stems from his original complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In the underlying complaint, complainant alleged he was
discriminated against on the basis of his disability (left knee injury)
when he was charged with absent without leave (AWOL) for 12 hours for
not coming to work on July 3 and July 4, 1997, and when he subsequently
resigned in lieu of termination on July 14, 1997. The agency issued
its original FAD (FAD1) on the underlying complaint on September 27,
2000, finding that complainant was discriminated against based on his
disability when he was charged AWOL on July 3 and July 4, 1997, and
when he was constructively discharged. The appeal is accepted for the
Commission's de novo review pursuant to 29 C.F.R. � 1614.405.
In FAD2, the agency awarded complainant $15,000.00 in non-pecuniary
damages. The agency based this award on its finding that the
discrimination caused complainant humiliation, embarrassment and
financial distress. FAD2, however, found that other factors, not the
discrimination, contributed to his depression and to the demise of
complainant's relationship with his common-law wife. The agency found
that the duration of complainant's emotional harm attributable to the
constructive discharge was approximately two months to a great degree,
and three years following that, to a lesser degree. Complainant now
appeals that decision, and argues that he is entitled to a larger award
of non-pecuniary damages. The agency requests that we affirm FAD2.
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes his claim of unlawful discrimination may receive, in
addition to equitable remedies, 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). 42 U.S. C. � 1981a(b)(3).
For an employer with more than 500 employees, such as this agency, the
limit of liability for future pecuniary and non-pecuniary damages is
$300,000.00. Id. The Commission has the authority to award compensatory
damages in the federal sector EEO process. West v. Gibson, 527 U.S. 212
(1999).
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) (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. Guidance at 11-12, 14. 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. 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. Guidance at 14.
Complainant requested $200,000.00 in non-pecuniary damages. In support of
his claim, during the supplemental investigation, complainant submitted
medical records and statements from his father, a friend, a co-worker,
and an agency psychiatrist. Complainant testified that he suffered from
harm to his reputation and emotional distress, including embarrassment,
humiliation, pain, stress, anger, and depression because of losing
his job. Complainant stated that he was treated at the VA Hospital
from September to October 1997 for the depression caused by his loss of
the job with the agency, as well as being treated for other conditions.
Complainant additionally stated that he experienced a loss of enjoyment
of life because his attitude changed due to the agency's discriminatory
action. In addition, he testified that he was longer able to socialize
with his family, and constantly worried about how he would support his
family financially. Complainant also asserted that experienced a loss
of sex drive due to his humiliation from losing his job. He stated
that his nineteen year relationship with his common-law wife ended in
October 1997 due to the effects of discrimination, in particular his
financial problems. Complainant further testified that he has had to be
financially reliant on his father. Complainant also stated that after
losing his job he went to truck driving school, and in March 1998 he
got a truck-driving job.
Complainant's father, friend, and co-worker all stated that the loss
of complainant's job caused him to feel severe stress and depression.
The psychiatrist testified that complainant's loss of the job with the
agency was one of two factors which caused his depression. Complainant's
father testified that after losing his job with the agency, complainant
was stressed, humiliated, and worried about how he was going to support
his family. His father further testified that the �strain� from the
loss of his job �caused his marriage of nineteen years to break down�
and caused �the loss of his wife and two sons.� His father additionally
stated �I paid bills and supported him for eighteen months.�
We find that the loss of complainant's job caused him: (1) severe
emotional problems which lasted for approximately two to three months
(from the time of his constructive discharge in July 1997 until the end
of his treatment at the VA Medical Center in October 1997); and (2) less
severe emotional distress for the following three years. Contrary to
the agency conclusion, we find that the discrimination, while not the
sole factor, did contribute to both complainant's depression and the
ultimate dissolution of complainant's nineteen-year common-law marriage.
After a thorough review of the record, and given the severity, nature and
duration of distress experienced by complainant, we find complainant's
request for $200,000.00 excessive, and the agency's award of $15,000.00
insufficient, to compensate complainant for his non-pecuniary losses.
Instead, we conclude that an award of $30,000.00 is appropriate. We point
out that non-pecuniary compensatory damages are designed to remedy
a harm and not to punish the agency for its discriminatory actions.
See Memphis Community School 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).
The Commission notes that this award is not �monstrously excessive�
standing alone, is not be the product of passion or prejudice, and
is consistent with the amount awarded in similar cases. See Economou
v. Department of the Army, EEOC Appeal No. 01983435 (August 5, 1999)
($35,000.00 in non-pecuniary damages where discrimination contributed
to employee's emotional distress and sleeplessness, but size of award
was mitigated by other factors contributing to the symptoms, as well as
by their short duration); Terrell v. Department of Housing and Urban
Development, EEOC Appeal No. 01A1961030 (October 25, 1996) ($25,000.00 in
non-pecuniary damages where discriminatory non-selection contributed to
employee's emotional distress and to the deterioration of his marriage,
but size of award was mitigated by several other personal factors that
contributed to the problems). FAD2 is thus modified and the agency is
ordered to take remedial actions in accordance with this decision and
order below.
ORDER (D0900)
Within sixty (60) days of the date this decision becomes final and to
the extent it has not already done so, the agency is ordered to pay
complainant $30,000.00 in non-pecuniary damages.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
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
March 19, 2003
__________________
Date