01983217
06-23-2000
Carl L. Mack, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Carl L. Mack v. Department of Veterans Affairs
01983217
June 23, 2000
Carl L. Mack, )
Complainant, )
)
v. ) Appeal No. 01983217
) Agency No. 97-0308
Togo D. West, Jr., ) Hearing No. 120-97-4546X
Secretary, )
Department of Veterans Affairs, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning his equal
employment opportunity (EEO) complaint, which alleged discrimination in
violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791
et seq. The appeal is accepted by the Commission in accordance with
the provisions of 64 Fed. Reg. 37,644, 37, 659 (1999) (to be codified
at 29 C.F.R. � 1614.405).<1>
ISSUE PRESENTED
The issue presented is whether the agency properly determined that
complainant was entitled to non-pecuniary compensatory damages in the
amount of $15,000.
BACKGROUND
In a complaint dated July 7, 1995, complainant, then a former Medical
Clerk, GS-679-4, alleged that the agency discriminated against him on the
basis of physical disability (HIV-positive status) when he was removed
from employment one week after disclosing to his immediate supervisor
that he was HIV-positive. The agency conducted an investigation,
provided complainant with a copy of the investigative report, and
advised complainant of his right to request either a hearing before an
EEOC administrative judge (AJ) or an immediate final agency decision
(FAD). Complainant requested a hearing, which was held October 20,
1997. Thereafter, the AJ issued a recommended decision (RD) finding
disability discrimination and awarding pecuniary compensatory damages
in the amount of $792 and non-pecuniary compensatory damages in the
amount of $185,000. The agency received the RD on December 22, 1997.
On February 18, 1998, the agency issued an FAD in which it accepted
the finding of discrimination and the award of pecuniary damages, but
reduced the award of non-pecuniary damages to $15,000. It is from this
decision that complainant now appeals.
ANALYSIS AND FINDINGS
The agency has accepted the AJ's finding of disability discrimination.
The Commission therefore will limit its discussion to the issue of
compensatory damages.
A. Legal Standards for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her 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 the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Notice No. N
915.002, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992). 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. Dept. 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. EEOC Notice No. N 915.002 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.
In Carle v. Dept. of the Navy, the Commission explained that "objective
evidence" of non-pecuniary damages could include a statement by the
complainant explaining how he or she was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993). Statements from others,
including family members, friends, and health care providers could
address the outward manifestations of the impact of the discrimination
on the complainant. Id. The complainant could also submit documentation
of medical or psychiatric treatment related to the effects of the
discrimination. Id. Contrary to the assertion of the agency in this
case, however, a complainant is not required to submit evidence from
"a certified medical practitioner recognized by the agency" in order to
establish entitlement to compensatory damages.
The Commission applies the principle that "a tortfeasor takes its
victims as it finds them." Wallis v. U.S. Postal Service, EEOC Appeal
No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button
Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). The Commission
also applies two exceptions to this general rule. First, when a
complainant has a pre-existing condition, the agency is liable only
for the additional harm or aggravation caused by the discrimination.
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; the burden of proof being on the agency to establish the
extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing
Maurer v. United States, 668 F.2d 98 (2d Cir. 1981); Finlay v. U.S. Postal
Service, EEOC Appeal No. 01942985 (April 29, 1997). The Commission notes,
however, that complainant is entitled to recover damages only for injury,
or additional injury, caused by the discriminatory removal. Terrell
v. Dept. of Housing and Urban Development, EEOC Appeal No. 01961030
(October 25, 1996); EEOC Notice No. N 915.002 at 12.
Section 102 of the CRA 1991 also provides that an agency is not liable
for compensatory damages in cases of disability discrimination where
it demonstrates that it made a good faith effort to accommodate the
complainant's disability. 42 U.S.C. � 1981a(a)(3); Bradley v. U.S. Postal
Service, EEOC Appeal No. 01962747 (October 22, 1998). Here, however, the
agency made no effort to accommodate complainant's disability. Further,
the agency also was found to have discriminated against complainant
with regard to disparate treatment. Accordingly, the "good faith"
defense to payment of compensatory damages is not available here.
B. Complainant's Evidence
Complainant testified at length regarding the effects of the agency's
actions. Complainant explained that he has been HIV-positive since 1988.
He was removed from employment effective May 26, 1995. Thereafter,
he was re-employed by the agency on a temporary appointment from June
through August 1995, then collected unemployment benefits for 26 weeks,
as well as a small disability benefit which he continued to receive
after his unemployment benefits ended.
Complainant testified that as a result of losing his employment with the
agency, he was late with his rent, which caused his landlord to refuse
to renew his lease, and that he had no family in a position to help him.
As a result, he was forced to give up custody of his seven-year-old
daughter, irreparably damaging their relationship, and had to place most
of their belongings in storage. These belongings included household
goods, his daughter's belongings, a large quantity of new and well-kept
older clothing, jewelry, and electronics. Complainant paid $148 per
month for five months storage. When complainant was unable to make
further storage payments, the storage company seized and auctioned his
property for non-payment, with none of the proceeds going to complainant.
Complainant had no opportunity to sell the property on his own once he
stopped paying the storage fees. Complainant was forced to sell one of
his two automobiles, and the other was repossessed.
Complainant testified that for two years, from October 1995 through
October 1997, he had no fixed address. During that time, he slept
wherever he was able, including in the street, and could not regularly
bathe or wash his clothing. Complainant stated that his homelessness left
him depressed, hurt, and embarrassed. Complainant noted that prior to his
removal, he had been so well groomed and dressed that friends referred
to him as "Calvin Klein." Complainant stated that on two occasions,
he was robbed and beaten, and had to go to the hospital for treatment.
Complainant acknowledged that he succumbed to the lure of illegal
drugs, but subsequently enrolled himself in a detoxification program,
and no longer uses illegal drugs. Complainant acknowledged that he had
been referred to a shelter run by the agency, and that he did not go,
but testified that he did not know that he could have applied for food
stamps and subsidized housing, and that his application for social
security benefits was denied.
Regarding his physical and mental health, complainant testified that he
had been mildly depressed prior to his removal, but that the depression
became much worse after his removal. Complainant noted an increase
in migraines and insomnia, and that his emphysema began to require
medication.
C. Calculation of Damages Payable
1. Non-Pecuniary Damages
The request for compensatory damages in this case is somewhat unusual.
In most of the cases where the Commission has awarded non-pecuniary
damages, the complainant has sustained emotional injury ranging from hurt
and embarrassment to depression to post-traumatic stress disorder. E.g.,
Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (April 18,
1996); Finlay v. U.S. Postal Service, EEOC Appeal No. 01962747 (October
22, 1998). In those cases where the Commission has awarded damages in
excess of $100,000, the emotional damage has been catastrophic, leaving
the complainant unable to work for years to come, if ever. E.g., Finlay,
EEOC Appeal No. 01942985. In this case, the injury done to complainant
does not at first appear so severe -- he testified that he was depressed,
hurt, embarrassed, and felt demeaned. On similar-sounding facts,
the Commission has awarded modest amounts. E.g., Loving v. Dept. of
the Treasury, EEOC Appeal No. 01955789 (August 29, 1997); Androvich
v. Dept. of Agriculture, EEOC Appeal No. 01950531 (July 12, 1996)
($5000). But the complainants in the cited cases were not subjected to
the same circumstances as complainant. While any complainant deprived
of a paycheck may experience financial difficulty, complainant's injury
in this regard was extreme.
Prior to the agency's discriminatory termination of complainant, he lived
in a well-furnished apartment and owned two late-model automobiles.
Complainant was well-groomed and well-dressed. He had custody of his
seven-year-old daughter and had a good relationship with her. He drank
moderately but did not use drugs. He was experiencing some depression
related to his HIV status, which was controlled with minimal medication.
He also had emphysema, but that condition did not require any treatment.
Following the agency's discriminatory termination of complainant,
which occurred almost immediately after complainant disclosed his HIV
status, complainant was unable to pay his rent on time, which led his
landlord to refuse to renew his lease, whereupon complainant moved out of
his apartment. Complainant was forced to sell one automobile, and the
other was repossessed, leaving complainant liable for the loan balance.
Complainant no longer had a home, and so lost custody of his daughter.
He had no one with whom he could leave his and his daughter's possessions,
and so he put them in storage. When he could no longer pay the storage
fees, the storage company impounded his possessions and sold them at
auction, giving complainant none of the proceeds. Stripped of all of his
worldly goods, complainant lived a nomadic existence for over two years,
unable to obtain employment and unable to put a roof over his head.
He slept wherever he could, including in the street, and was unable to
keep himself and his clothing clean. He was twice beaten and robbed.
Eventually he succumbed to the lure of illegal drugs, although he later
voluntarily went through a detox program. His depression increased,
and now requires multiple medications, and his emphysema worsened,
now requiring medication. He suffers from migraines and insomnia, and
takes medication for both. His relationship with his young daughter
has been damaged. Having established the causal relationship between
the agency's discriminatory termination and these events, the Commission
finds that complainant is indeed entitled to non-pecuniary compensatory
damages in the amount of $185,000.
The Commission finds the agency's argument, that complainant's entitlement
to non-pecuniary damages should be reduced because he failed to mitigate
those damages, to be without merit. Although a complainant has a
duty to mitigate pecuniary damages, White v. Veterans Administration,
EEOC Appeal No. 01950342 (June 13, 1997), the agency has not drawn
the Commission's attention to any authority requiring a complainant to
mitigate non-pecuniary damages.
2. Past Pecuniary Damages
Complainant requested past pecuniary damages for his lost property.
The AJ awarded complainant damages only for the cost of moving and storing
his property, a total of $792, noting that complainant could have avoided
the loss by moving his possessions or selling them himself. While it
appears that the AJ may not have understood that complainant did not have
access to his property once he became delinquent in storage payments, the
Commission nonetheless agrees that a reasonable person in complainant's
position would have taken steps to move or sell the property, knowing
that his funds were nearly depleted. Accordingly, the Commission finds
that complainant failed to mitigate his past pecuniary damages, and that
he should not be compensated for the loss of his personal property beyond
the $792 awarded by the AJ. See White, EEOC Appeal No. 01950342.
There is also an indication in the record that complainant's need for
various medications increased subsequent to his removal, and that this
increase may be causally related. However, complainant submitted no
evidence to support a claim for damages in this regard. Therefore,
no past pecuniary damages are payable for the medications.
3. Future Pecuniary Damages
As noted above, complainant did not submit evidence bearing on his
increased need for medication, nor does there appear to be any other
viable claim for future pecuniary damages.
D. Other Relief
In addition to compensatory damages, complainant is entitled to various
equitable remedies as part of his "make whole" relief. See, e.g.,
Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Adesanya
v. U.S. Postal Service, 01933395 (July 21, 1994). In its FAD, the agency
adopted the award of equitable relief recommended by the AJ, including
reinstatement to his former position, back pay and benefits, attorney
fees and costs, and a posted notice of discrimination. The Commission
therefore will include this relief in its Order, below.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
MODIFY the final agency decision with regard to the amount of compensatory
damages awarded to complainant.
ORDER (D1199)
The agency is ORDERED to take the following remedial action:
Within forty-five (45) days of the date on which this decision becomes
final, the agency shall:
tender to complainant compensatory damages in the amount of $185,792; and
if it has not already done so, reinstate complainant to the position of
Medical Clerk, GS-679-4, at its Baltimore, Maryland, Medical Center,
together with back pay and benefits, including any step and grade
increases which complainant would have received had he not been removed
from employment.
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, no later than sixty (60) calendar days after
the date this decision becomes final. The 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 the complainant for the
undisputed amount within sixty (60) 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."
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 calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Baltimore, Maryland, Medical
Center facility 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 sixty (60)
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.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60) (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
June 23, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that
a violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
�791 et seq.,has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that 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 Department of Veterans Affairs, Baltimore, Maryland, Medical Center
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The Department of Veterans Affairs, Baltimore, Maryland, Medical Center
has been found to have discriminated against the individual affected
by the Commission's finding. The Department of Veterans Affairs,
Baltimore, Maryland, Medical Center shall reinstate the affected
individual to the position from which he was wrongfully removed, with
back pay and benefits; pay compensatory damages; and pay the affected
individual's reasonable attorney fees and costs. The Department of
Veterans Affairs, Baltimore, Maryland, Medical Center will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws and will not retaliate against employees
who file EEO complaints.
The Department of Veterans Affairs, Baltimore, Maryland, Medical Center
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
1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.