01983913
08-05-1999
Elmer Price, Appellant, v. David J. Barram, Administrator, General Services Administration,) Agency.
Elmer Price, )
Appellant, )
)
v. ) Appeal No. 01983913
) Agency No. 96-R9-PBS-ELP-08
David J. Barram, ) Hearing No. 340-97-3194X
Administrator, )
General Services Administration,)
Agency. )
________________________________)
DECISION
On April 16, 1998, Elmer Price (appellant) timely appealed the final
decision of the General Services Administration (agency), dated March 12,
1998, concerning his claim for compensatory damages following a finding
that he had been discriminated against in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. This appeal
is accepted in accordance with the provisions of EEOC Order No. 960.001.
The record reflects that on November 28, 1997, the agency issued a
final decision in which it adopted an EEOC administrative judge's (AJ)
finding that appellant had been discriminated against on the basis of
his race (Black) when, in May/June 1994, the Realty Specialist position
he occupied was re-classified from a GS-11 grade level to a GS-12, but
he was not promoted. To remedy appellant, the agency implemented the
corrective action recommended by the AJ, including retroactively promoting
appellant to the GS-12 level<1> and posting notices of the finding
throughout the agency's Los Angeles Service Center. In the agency's
November 28, 1997 final decision, it also advised appellant that he might
be entitled to compensatory damages and that an inquiry into that issue
would be conducted.<2> The agency subsequently requested that appellant
submit any documentation he had to support a compensatory damages award.
In that request, the agency detailed the type of documentation appellant
should submit in order to support any claim for compensatory damages.
By letter dated December 12, 1997, appellant's union representative
responded to the agency's letter, requesting $300,000 in compensatory
damages. In support of this claim, the union representative attached
several documents appellant had provided in support of his claim.
The documents submitted related to alleged medical injury and expenses,
injury to credit standing, a divorce, a wage garnishment, financial
hardship and injury to character. The request contained no affidavit from
appellant or any other witness attesting to the specifics of these alleged
injuries or how they were caused by the agency's discriminatory actions.
On March 12, 1998, the agency issued its final decision, concluding
appellant had failed to establish his entitlement to a compensatory
damage award because he had not submitted sufficient supporting evidence
of the harm he claimed to have suffered. Moreover, the agency found
that he also failed to produce evidence that the agency's actions were
the direct or proximate cause of his alleged injuries. It is from this
decision that appellant now appeals.
Section 102(a) of the Civil Rights Act of 1991, 105 Stat. 1071,
Pub. L. No. 102-166, codified at 42 U.S.C. �1981a, authorizes an award
of compensatory damages as part of make-whole relief for intentional
discrimination in violation of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. Section 1981a(b)(3) limits the total amount
of compensatory damages that may be awarded each complaining party for
future pecuniary losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other non-pecuniary losses,
according to the number of individuals employed by the respondent.
The limit for a respondent who has more than 500 employees is $300,000.
42 U.S.C. �1981a(b)(3)(D).<3> Non-pecuniary losses are losses that
are not subject to precise quantification including emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character and reputation,
injury to credit standing, and loss of health.
There are no precise formulas for determining the amount of damages for
non-pecuniary losses. An award of compensatory damages for non-pecuniary
losses, including emotional harm, should reflect, however, the extent
to which appellant has established that the agency's actions directly
or proximately caused the harm ("the nexus"), and/or the extent to
which other factors also may have caused the harm. In addition, a
proper award should be consistent with awards made in similar cases.
The agency should consider Commission precedent, as well as jury and
court awards, for non-pecuniary damages based on emotional harm.
In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993), the Commission described the type of objective evidence that an
agency may obtain when assessing the merits of a complainant's request
for emotional distress damages:
[E]vidence should have taken the form of a statement by appellant
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
appellant day to day, both on and off the job. In addition, the agency
should have asked appellant to provide objective and other evidence
linking . . . the distress to the unlawful discrimination . . . .
Objective evidence may include statements from the complainant concerning
his/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 non-pecuniary losses that are incurred as a result of
the discriminatory conduct. Statements from others, including family
members, friends, and coworkers. Objective evidence also may include
documents indicating a complainant's actual out-of-pocket expenses
related to medical treatment, counseling, and so forth, related to the
injury allegedly caused by discrimination. In determining damages, the
agency is only responsible for those damages that are clearly shown to
be caused by the alleged discriminatory conduct, not for any and all
damages in general. See Rountree v. Department of Agriculture, EEOC
Request No. 05950919 (February 15, 1996).
After careful consideration of all the evidence of record, as well as the
arguments of both parties on appeal, it is the decision of the Commission
that the agency correctly denied appellant's claim for a compensatory
damages award in this case. As the agency noted, appellant has the burden
of proving the existence, nature and severity of the alleged harm. Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994).
Appellant must also establish a causal relationship between the alleged
harm and the discrimination. Absent such proof of harm and causation,
appellant is not entitled to a compensatory damages award. The record
establishes that the agency properly requested that appellant provide
objective evidence of any damages he incurred and that he show that the
damages were causally linked to the agency's discriminatory actions.
In response, appellant requested $300,000 and submitted a variety of
documents without affidavits, or even explanatory statements, concerning
the relevance of the documents to his claim:
Medical Injury: Appellant claims to have been diagnosed in May 1994 as
being at "cardiovascular risk" and with having sought counseling from
the agency's Employee Assistance Program (EAP) counselor for "stress."
However, no medical evidence has been submitted regarding the precise
diagnosis, underlying causes, and treatments recommended. In addition,
appellant has submitted no indication that he had or expected to have
any medical expenses related to these alleged conditions.
Damage to Credit Rating: Appellant submitted no documentation in support
of this claim.
Divorce: Appellant submitted a copy of his divorce decree indicating
that his marriage was dissolved in October 1996. Appellant offered
no evidence that his marital difficulties resulted from any actions on
the part of the agency.
Garnishments: Appellant submitted documentation that the Internal
Revenue Service (IRS) was garnishing his wages. Other documents
indicated that he had failed to pay his federal taxes, as well as some
state tax in 1994 and 1995. However, appellant provided no evidence
that the agency's failure to promote him, which would have resulted in
a gross annual raise of approximately $4,000 was the proximate cause
of his financial difficulties. For example, in 1994, had appellant
received the promotion in mid-year, his annual gross salary would have
increased by about $2,000. This amount would not have been sufficient
to cover the $3,275 balance he owed the IRS in that year.
Hardship Loan: Appellant submitted documentation that he secured a $2,000
loan from his Thrift Savings Plan TSP) in June 1996. However, again
appellant has not provided any explanation or evidence about how the
agency's actions were the proximate cause of his financial difficulties.
Damage to Character/Reputation: In support of this claim appellant
submitted a variety of certificates and awards documenting his
accomplishments. However, appellant submitted no explanation or evidence
that his good character or reputation was in any way diminished by the
actions of the agency.
In sum, the documents submitted by appellant, without the type
of supporting statements and evidence as described above in Carle
v. Department of the Navy, falls short of the type and extent of proof
required to establish an entitlement to compensatory damages. See Browne
v. Department of Agriculture, EEOC Appeal No. 01944256 (July 17, 1995).
CONCLUSION
Accordingly, based on a thorough review of the record, and for the
reasons stated above, the Commission AFFIRMS the agency's decision to
deny appellant's claim for compensatory damages.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
August 5, 1999
_______________ _______________________________
DATE Frances M. Hart
Executive Officer
1 The record indicates that in his GS-11, Step 2 position appellant
earned $40,349 per year. In the GS-12 position, he would have
earned $44,327 per year.
2 It is noted that the AJ did not recommend an investigation into the
issue of compensatory damages because appellant did not specifically
seek such damages in his complaint or at the hearing.
3 The Supreme Court has held that compensatory damages are recoverable
in the administrative process. West, Secretary of Veterans Affairs
v. Gibson, Np. 98-238, 1999 WL 380643 (U.S. June 14, 1999).