01A03785
08-26-2002
Eli Chaparro, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Eli Chaparro v. Social Security Administration
01A03785
08-26-02
.
Eli Chaparro,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A03785
Agency No. 98-0614-SSA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts this appeal
from a final agency decision on complainant's claim for compensatory
damages. On March 24, 2000, the agency issued a final decision in which
it found that based on complainant's sex (male) he was not selected for a
120-day detail to a Senior Attorney position, and that he was subjected
to disparate treatment in terms of work assignments as compared to his
female counterparts. In its decision, the agency informed complainant
that he was entitled to compensatory damages in the amount of $10,000.<1>
In response, complainant filed this appeal wherein he requests $100,000
for nonpecuniary losses.
Section 102(a) of the Civil Rights Act of 1991 authorizes the
Commission to award compensatory damages as part of make-whole relief
for intentional discrimination. 42 U.S.C. � 1981a; West v. Gibson,
527 U.S. 212, 217 (1999). To receive an award of compensatory damages,
complainant must demonstrate that she has been harmed as a result of
the agency's discriminatory actions, as well as the extent, nature,
severity, and duration of that harm. Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. 915.002 (July 14, 1992), at 8, 11-12, 14.
The agency found that complainant presented objective evidence that
the agency's conduct caused him to suffer the harm the complainant
described. See Smith v. Department of Defense, EEOC Appeal No. 01943844
(May 8, 1996). Therefore, we now turn to the issue of whether the
agency's award of $10,000 in nonpecuniary compensatory damages was
adequate.
There is no precise formula for determining the amount of damages for
nonpecuniary 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). It should likewise be consistent with amounts awarded
in similar cases. Hogeland v. Department of Agriculture, EEOC Appeal
No. 01976440 (June 14, 1999).
In the present case, complainant presented the agency with an affidavit
in which he claimed that, as a result of the discrimination he endured,
in August 1997, he has undergone gastro-intestinal examinations for
abdominal pains and gastric distress. As a result of these examinations
complainant was placed on the acid reducer Prevacid, which complainant
claims has provided him with limited relief. In April 1998, complainant
was evaluated for chest pains and numbness in the left arm. An EKG
and cardiac enzymes test proved negative. Complainant was then sent
for a treadmill stress test and a stress cardiogram. Complainant was
diagnosed with having atypical chest pain and was told to try to relax.
In May 1998, complainant was evaluated for severe headaches that he
was experiencing while he was at work. In order to rule out a stroke,
complainant underwent an MRI scan of the brain, as well as a Doppler study
of the carotid arteries. Both of the these examinations proved negative
and complainant was diagnosed with simply having tension headaches.
In 1998, complainant was evaluated for severe neck pain and the �locking
up� of his spinal column. Orthopedic examinations included x-rays and
a MRI scan of the cervical spine. Both proved negative.
Complainant claimed the discriminatory treatment has made him feel like
a second-class citizen and has caused him much emotional distress in
addition to the physical distress noted above. Complainant claimed that
it has caused him to have trouble sleeping, to experience a great deal
of anxiety and become irritable around others. Complainant claimed that
the whole situation has been very disconcerting to him as he is normally
�an easy going and personable kind of guy.� For all of the aggravation,
complainant requested $10,000 for emotional distress.
Complainant also claimed damages for loss of enjoyment of
life. Complainant stated that since all of the discrimination started
he no longer enjoys coming to work and that it takes everything he has
just to get up and go into work. Complainant stated that, �in truth, I
have become a shell of my former self and just do not enjoy life anymore.
Having to put up with over 2 years of this is enough to break anyone.�
Accordingly, complainant claimed an additional $10,000 in damages for
loss of enjoyment of life.
Complainant also requested damages for injury to his reputation and
professional standing. Complainant stated that prior to working for the
agency he was a Deputy Attorney General in the state of New Jersey for
over 9 years. While there, complainant stated that he tried in excess of
1,000 cases and was able to work on several �reported cases.� Complainant
states that he was known as a �workhorse� and �top-notch� attorney.
Complainant stated that former colleagues are puzzled when he tells them
that he is still not a supervisor and yet to be made a Senior Attorney.
Complainant claimed that his former colleagues have openly questioned
his performance. Complainant stated that he has aspirations of one
day becoming an agency ALJ but thus far been thwarted in his efforts
to enhance his professional standing. Complainant claimed that this
discrimination has caused him considerable loss of self-esteem and
has damaged both his professional reputation and career advancement.
Consequently, complainant requested an additional $10,000 in damages
for injury to his reputation and professional standing.
Furthermore, complainant requested damages for the professional
�isolation� that he has had to endure. Complainant claims that since he
filed the complaint in this matter several of the decision writers have
stopped associating with him for fear of being branded as a �trouble
maker.� Several of the agency ALJ's have intimated that complainant
is dividing up the office and that he needs to stop for the good of
the office. Complainant claimed that one day he overheard an older ALJ
refer to him as the �ringleader� as if he were among a string of �thugs.�
Complainant stated that he has a great deal of loyalty to the agency
and is hurt that the loyalty is now being questioned. As a result,
complainant requested another $10,000 in damages for the professional
isolation that he has had to endure.
On appeal, complainant is requesting an increase in the amount of
non-pecuniary compensatory damages the agency awarded him from $10,000
to $100,000.<2> In cases where the Commission awarded nonpecuniary
damages of $100,000 and above, the evidence of record tended to show
that the emotional or psychological injuries which resulted from the
agency's actions were so catastrophic that no inquiry into long-term
effects was necessary. See Mack v. Department of Veterans Affairs, EEOC
Appeal No. 01983217 (June 23, 2000) ($186,000). Where the harm suffered
is permanent, but less severe, awards tend to range between $30,000 and
$40,000. See Kannikal v. Department of Justice, EEOC Petition No. 04A00017
(June 15, 2001) ($32,500). The awards will be lower if the harm suffered
is temporary. See Hogeland v. Department of Agriculture, EEOC Appeal
No. 01976440 (June 14, 1999) ($25,000). The size of the award will be
further reduced if the evidence shows that factors other than the actions
at issue in the complaint contributed to complainant's suffering, or if
corroborative evidence is lacking. See Pailin v. Department of Defense,
EEOC Appeal No. 01954350 (January 26, 1998)(Commission awarded $2,500
in nonpecuniary damages).
In cases where the harm suffered is severe, but of limited duration, the
Commission tends to award $25,000. In Smith v. Department of Defense, EEOC
Appeal No. 01943844 (May 8, 1996), the Commission awarded the complainant
$25,000 in nonpecuniary compensatory damages after finding that she
had been subjected to sexual harassment between 1990 and 1993. She had
been diagnosed with depression many years before her employment with the
agency, but had never been hospitalized prior to the incidents that gave
rise to her complaint. She was hospitalized four times as a result of the
agency's conduct. However, the trauma that complainant experienced did
not last beyond the cessation of the harassment. Similarly, in Terrell
v. Department of Housing and Urban Development, EEOC Appeal No. 01961030
(October 25, 1996), request for reconsideration denied EEOC Request
No. 05970336 (November 20, 1997), the Commission awarded complainant,
like the complainant in the instant case, $25,000 in non-pecuniary
damages in connection with the depression he experienced after not being
selected for a particular position. The Commission noted that complainant
had been experiencing numerous problems outside the workplace before
the nonselection, including bankruptcy, marital difficulties, and his
wife's illness. The Commission found that the nonselection exacerbated
the complainant's pre-existing emotional and psychological problems, but
to a limited extent. In awarding the complainant $25,000, the Commission
took into consideration the presence of various outside factors and
two-year duration of the complainant's depression.
In the case before us, the complainant stated that he suffered from
abdominal pains and gastric distress; chest pains; numbness in the left
arm; chest pain; severe tension headaches that he was experiencing while
he was at work; and neck pain. The medical evidence of record clearly
corroborates complainant's physical examinations and treatment. The
medical evidence of record does not, however, specify what type of
treatment complainant would need for his physical health or how long
he would need it. More problematic, is that there is no evidence,
besides complainant's own affidavit, corroborating his emotional claims
of distress. However, inasmuch as complainant's physical ailments were
inextricably tied to the agency's actions we find that the agency's award
of $10,000 was inappropriate. Clearly, complainant has suffered from
emotional distress, as well as other physical symptoms, caused by the
agency's discriminatory actions. We also find that the harm suffered by
complainant was severe, but of limited duration. In consideration of the
forgoing, we award complainant an additional $15,000 in nonpecuniary
damages to the $10,000 originally granted by the agency for a total
of $25,000.
ORDER
If the agency has already paid complainant the $10,000 it originally
awarded complainant in non-pecuniary compensatory damages, the agency
shall within thirty (30) calendar days of the date that this decision
becomes final, issue complainant an additional payment in the amount
of $15,000 and submit to the compliance officer documented proof that
it has done so. Such proof shall consist of either a copy of cancelled
check, documentation of an electronic transaction, a transmittal letter,
or any other appropriate documentation.
If the agency has not paid complainant any amount in non-pecuniary
compensatory damages, the agency shall within thirty (30) calendar days
of the date that this decision becomes final, issue complainant payment
in the amount of $25,000 and submit to the compliance officer documented
proof that it has done so.
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.
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.
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
____08-26-02______________
Date
1The agency also ordered the following remedial relief for complainant:
(1) retroactive temporary promotion to the Senior Attorney Advisor
position that complainant was denied, commensurate with the promotions
received by female selectees, with back pay, interest, and any overtime
differential that accrued; (2) pecuniary damages in the amount of
$4,317.35, as substantiated by complainant's itemized medical bills;
and (3) that future assignments of writers to Administrative Law Judges
and the distribution of cases and workloads at the agency's Office of
Hearings and Appeals be done in a non-discriminatory manner. However,
the only issue before us is the amount of non-pecuniary losses the agency
awarded complainant.
2We note that complainant asserted in his appeal brief that his complaint
is part of a consolidated complaint filed by four males in the agency's
Little Rock, Arkansas office. Complainant's brief addresses the
remedial relief offered the other complainants and argues that that
the complainants were wrongfully issued separate decisions. However,
a letter of acceptance addressed solely to complainant indicates
complainant was informed that the complaints were consolidated for
joint processing, not as a consolidated and/or class complaint. EEOC
Regulation 29 C.F.R. � 1614.606 permits the consolidation of complaints
filed by different complainants that consist of substantially similar
allegations related to the same matter. Therefore each complainant was
entitled to a separate decision.