01A23791
09-30-2003
Francisco Padilla, Jr., Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Francisco Padilla, Jr. v. Department of Housing and Urban Development
01A23791
09-30-03
.
Francisco Padilla, Jr.,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A23791
Agency No. FH 95-01
Hearing No. 100-96-7134X
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his award of compensatory damages. On appeal complainant
requests that the agency's final decision regarding compensatory damages
be reversed. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission modifies the agency's final
decision.
The record reveals that during the relevant time, complainant was
employed as a Director of Facilities Planning at the agency's Office
of Native American Programs at the agency's Denver, Colorado facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on December 20, 1994, alleging that he was discriminated against
on the bases of national origin (Hispanic), sex (male), and reprisal
for prior EEO activity when he was not selected for the position of
Director, Multifamily Division, GS-1101-14/15, located in Boston, Denver,
Fort Worth, Houston, Kansas City, Portland and Seattle. The Commission
found that complainant had been discriminated against based on national
origin when he was not selected for the above positions. The Commission
also found that complainant was subjected to sex discrimination when he
was not selected for positions in the Phoenix and San Antonio Offices.
The Commission ordered the agency to do a supplemental investigation
regarding complainant's entitlement to compensatory damages.
Complainant requested the following damages: compensation for sick
leave used in the amount of $3,423 resulting from illnesses stemming
from emotional distress suffered as a result of the discrimination;
real estate losses in the amount of $80,000; and non-pecuniary damages
in the amount of $120,000, for a total of $292,510.
The agency's final decision (FAD) rejected complainant's request and found
that complainant was entitled to $5,000 in non-pecuniary compensatory
damages. The FAD found that complainant's request for equitable relief
in the form of compensation for sick leave failed because complainant
failed to demonstrate a causal nexus between the discrimination and the
need to take leave. The FAD noted that complainant failed to demonstrate
that the leave was actually taken, when it was taken, and that it was
taken as a result of discrimination. With respect to complainant's
claim for real estate losses, the FAD found that the claimed loss was
too speculative. The FAD noted that complainant applied for several
positions outside the Denver area and would have been required to
relocate had he been selected for any of the positions. With respect to
complainant's claim of non-pecuniary damages in the amount of $120,000,
the FAD noted that complainant claimed damages for emotional distress,
suffering, embarrassment and humiliation. Complainant indicated that
his relationship with his family suffered because of the change in his
temperament, and he ultimately was divorced from his wife. Complainant
also maintained that he suffered a loss to his professional reputation
and his standing in the agency as a result of the agency's discrimination.
Complainant provided statements from friends, coworkers, and family
members attesting to the pain and suffering he experienced as a result
of the discrimination. Complainant did not however, provide any medical
documentation to support this claim. The FAD awarded complainant $5,000
in non-pecuniary compensatory damages and indicated that the severity of
the harm, duration of the harm, and consistency with the amount awarded
in similar cases was taken into consideration.
On appeal, complainant maintains that the agency has access to his leave
records and therefore should be able to provide documentation regarding
his absences during the relevant time. Complainant also contends that
his real estate losses were not speculative and that he is entitled
to more than $5,000 in non-pecuniary damages since he has endured this
case for eight years. Complainant also requests attorney's fees through
this appeal and requests that the Commission sanction the agency for
unconscionable delays in complying with the Commission's August 14,
2001, Order.
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. Enforcement
Guidance: Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice
No. 915.002, at 8 (July 14, 1992). 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 non-pecuniary losses that are incurred as a result of the
discriminatory conduct. Statements from others, including family members,
friends, health care providers, or 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. Lawrence v. United States
Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).
Evidence from a health care provider or other expert is not a mandatory
prerequisite for recovery of compensatory damages for emotional
harm. Complainant's own testimony, along with the circumstances of
a particular case, can suffice to sustain his or her burden in this
regard. The more inherently degrading or humiliating the agency's action
is, the more reasonable it is to infer that a person would suffer
humiliation or distress from that action. The absence of supporting
evidence, however, may affect the amount of damages appropriate in
specific cases. Lawrence, supra.
An award of non-pecuniary compensatory damages should reflect the extent
to which the agency's
discriminatory action directly or proximately caused the harm as
well as the extent to which other factors also caused the harm.
Johnson v. Department of the Interior, EEOC Appeal No. 01961812
(June 18, 1998). It is the complainant's burden to provide objective
evidence in support of her claim and proof linking the damages to the
alleged discrimination. Papas v. United States Postal Serv., EEOC Appeal
No. 01930547 (Mar. 17, 1994); Mims v. Department of the Navy, EEOC Appeal
No. 01933956 (Nov. 24, 1993). The Commission recognizes that not all
harms are amenable to a precise quantification; the burden of limiting
the remedy, however, rests with the employer. Chow v. Department of the
Army, EEOC Appeal No. 01981308 (Feb. 12, 2001). Moreover, the amount of
an award should not be "monstrously excessive" standing alone, should
not be the product of passion or prejudice, and should be consistent
with the amount awarded in similar cases. Cygnar v. Chicago, 865 F.2d
827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd.,
823 F. Supp. 571, 574 (N.D. Ill. 1993).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to modify the agency's final order.
We find the award of $5,000 in non-pecuniary compensatory damages is
incorrect in light of the amount awarded in similar cases, the severity
of the harm and duration of the harm. The evidence shows that complainant
learned he was not selected for any of the positions on October 21, 1994.
He filed a formal EEO complaint in December1994, and transferred to New
Mexico on June 11, 1995. We are not persuaded by the agency's argument
that the effects of discrimination ended when complainant transferred to
New Mexico in June 1995. The record shows that the officials involved
with the discriminatory conduct continued to work with complainant since
the Denver Office had oversight of the New Mexico office. As a result,
complainant maintains that he continued to experience the emotional impact
of the discrimination. In light of the evidence, we find that an award of
$25,000 in non-pecuniary compensatory damages is supported by the record,
which contains ample evidence of emotional harm suffered by complainant
during the period for which the law has made such damages available.
The award is also more in line with the amount awarded in similar cases,
the severity of the harm and the duration of the harm. See Thomas
v. Department of Veterans Affairs, EEOC Appeal No. 01A01600 (July 24,
2000) (award of $25,000 non-pecuniary damages based on the testimony of
complainant and spouse establishing that complaint suffered humiliation,
depression, lack of self esteem, and worsening health conditions because
of the discrimination).
With respect to complainant's real estate claims, we agree with the
agency's FAD that complainant's real estate losses based on cost of
square footage, interest and appreciation of the real estate market are
speculative in nature and not compensable. See Quinn v. Social Security
Administration, EEOC Appeal No. 01976921 (May 18, 2000); and Rajterowksi
v. United States Postal Service, EEOC Appeal No. 01984767 (June 20, 2000).
We find that with respect to complainant's request for equitable relief
in the form of payment of sick leave, complainant failed to prove his
case as he failed to show a nexus between the sick time used and the
discrimination. Further, we reject complainant's request to sanction the
agency, as sanctions are not appropriate in this matter. Additionally,
attorney's fees with regard to this appeal are not warranted because
complainant is not the prevailing party in this appeal.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we modify the agency's final
decision and remand this case to the agency to take remedial actions in
accordance with this decision and Order below.
ORDER
The agency is order to take the following remedial action:
1. Within sixty (60) days of the date this decision becomes final,
the agency shall pay complainant $25,000 in non-pecuniary compensatory
damages.
2. 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 payment of compensatory damages.
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
___09-30-03_______________
Date