01a01600
07-24-2000
Henry Thomas, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Henry Thomas v. Department of Veterans Affairs
01A01600
July 24, 2000
.
Henry Thomas,
Complainant,
v.
Togo D. West, Jr.,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A01600
Agency No. 950773
DECISION
Henry Thomas (complainant) timely initiated an appeal from a final agency
decision (FAD) concerning his claim for compensatory damages, issued
in accordance with a decision from this Commission.<1> The Commission
found that the agency had violated Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. when
it discriminated against complainant on the bases of his race (Black)
and disability (pulmonary condition, hypertension, visual problems). The
appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be
codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether complainant established that he is entitled
to compensatory damages beyond the $5,000.00 awarded by the agency.
BACKGROUND
On June 24, 1999, this Commission issued a decision finding that the
agency discriminated against complainant on the above-cited bases
when it did not select him for the position of GS-12 EEO Specialist in
October 1993 and subsequently canceled the position. The Commission
ordered the agency to conduct a supplemental investigation on the issue
of complainant's entitlement to compensatory damages. On November 12,
1999, the agency issued a FAD in compliance with this order. Therein,
the agency awarded complainant $5,000.00 in compensatory damages.
In granting this award, the agency noted that complainant did not claim
any pecuniary losses. The agency also found that only part of the damages
claimed by complainant were proximately caused by the discriminatory
conduct of the agency, noting that non-discriminatory work conditions
contributed to complainant's distress. The agency concluded that
the evidence supported an award of $5,000.00 for non-pecuniary losses.
It is this FAD from which complainant now appeals.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency's award is grossly
inadequate and does not fully compensate him for his non�pecuniary losses.
He argues, among other things, that he suffered the effects of the
agency's discrimination for more than five years, from his non-selection
in October 1993, to the promotion he received in August 1999 pursuant
to the Commission's order. He also argues that the agency unfairly
faulted him for not providing medical information, noting that there
is abundant evidence in the record as to his severe medical problems
and that such evidence is not required in assessing the amount of a
compensatory damages award. Finally, he alleges that $50,000.00 is
necessary to fully compensate him.
In response, the agency notes that complainant did not rebut any of
the underlying factual considerations and legal principles set forward
in the FAD and that the agency correctly reviewed damages awards in
similar cases in determining that $5,000.00 was an appropriate award.
The agency asks that its FAD be affirmed.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes a 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 Supreme Court has recently confirmed that the
Commission possesses the legal authority to require federal agencies to
pay compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
The particulars of what relief may be awarded, and the proof necessary to
obtain that relief, are set forth in detail in Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N-915.002 (July 14, 1992) (Compensatory Damages Notice).
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. See Damiano v. United States Postal
Service, EEOC Request No. 05980311 (February 26, 1999). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part. See Compensatory Damages
Notice, at 11-12. The amount of non-pecuniary damages should also
reflect the nature and severity of the harm to complainant, and the
duration or expected duration of the harm. Id. at 14. A complainant
is required to provide evidence that will allow an agency to assess the
merits of complainant's request for emotional distress damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Evidence of Injury and Causation
The Commission has found that complainant was discriminated against when
he was denied a promotion to a GS-12 position and when that position was
subsequently canceled. The record establishes, through testimony from
complainant and his wife, as well as letters from family friends, that
the agency's discriminatory treatment harmed complainant. Complainant
testified that when he was not selected for the EEO specialist position,
he was humiliated, and began suffering from insomnia, depression, a lack
of self-esteem, and a worsening of health conditions. Others confirmed
that complainant underwent a personality change after he did not receive
the GS-12 promotion, becoming less confident and withdrawing from his
family.
We find that based on the testimony provided and the fact that the agency
acknowledged a causal connection between the discriminatory treatment
complainant endured and some portion of the distress he suffered,
complainant has established that a portion of his harm was caused by
the agency's discriminatory conduct.
Calculation of Damages Payable
1. Pecuniary Damages
Complainant did not claim any pecuniary losses, past or future. Nor did
he furnish receipts for any treatment or costs incurred as a result
of the discriminatory conduct or any evidence that such costs will be
incurred in the future. The agency therefore correctly determined that
complainant should be awarded no pecuniary damages.
2. Non-pecuniary Damages
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. The existence, nature, and severity of
emotional harm must be proved. See Compensatory Damages Notice, at 11.
Emotional harm may manifest itself, for example, as sleepiness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self esteem, excessive fatigue, or a nervous breakdown. Id.
A proper award should take into account the severity of the harm and the
length of time that the injured party suffered the harm. See Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Finally, the amount of the 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. See
Jackson v. United States Postal Service, EEOC Appeal No. 01972555
(April 15, 1999), citing Cyanar v. City of Chicago, 865 F. 2d 827, 848
(7th Cir. 1989).
In the case at hand, complainant testified to his humiliation, stress,
insomnia and other sleep problems, including nightmares and teeth
grinding, caused by the discriminatory non-selection. He noted
that after being denied the position in question, he had to continue
working under the supervisor who was responsible for his non-selection.
Complainant testified that the stress he felt due to the discrimination
caused his pre-existing medical conditions to worsen, stating that his
blood pressure increased, his hypertension became more severe, and at
one point he was placed in the hospital for recovery.
Complainant's wife supported complainant's descriptions, noting that the
discrimination her husband was subjected to destroyed his self-confidence,
and caused insomnia, nightmares, depression and anxiety. Both complainant
and his wife testified that his personality change affected the whole
family, causing marital problems and affecting complainant's relationship
with their children for several years. Complainant's sister-in-law
wrote that the problems complainant faced at work changed him from an
outgoing leader in the family, to a silent man who rarely participated
in family gatherings. A friend of the family wrote that complainant's
work environment caused him to become depressed and anxious. Complainant
and his wife agreed that ever since he received the GS-12 position in
August 1999 in accordance with this Commission's order, his emotional
and physical states have been improving.
After a thorough review of the record, we agree with the agency that a
portion of the harm complainant and others testified to was caused by
factors other than the agency's discriminatory conduct. Complainant and
his wife testified that his emotional distress and health problems
were exacerbated by work problems other than the discriminatory
non-promotion.
We also note that while complainant noted that his health problems were
exacerbated by the stress of discrimination, the only medical evidence in
the record is a medical report from 1988, making it difficult to determine
the extent to which his condition worsened after he was subjected to
discrimination. Complainant correctly notes on appeal that evidence
from a health care professional is not a mandatory prerequisite for
recovery of compensatory damages for emotional distress. See Lawrence
v. United States Postal Service, EEOC Appeal No. 01952288 (April 18,
1996). However, in cases involving pre-existing medical conditions,
medical information is useful in determining the extent to which the
discriminatory actions exacerbated the medical problems. See Hogeland
v. United States Department of Agriculture, EEOC Appeal No. 01976440 (June
14, 1999). With this in mind, we now turn to a review of non-pecuniary
damage awards in previous Commission decisions.
Several Commission decisions have awarded compensatory damages in cases
somewhat similar to complainant's. In Bernard v. Department of Veterans
Affairs, EEOC Appeal No. 01966861 (July 17, 1998), the Commission awarded
$80,000.00 to a complainant who was denied reasonable accommodation
and non-selected for a position. The complainant, through his own
testimony and testimony of friends and family, presented evidence that
he experienced symptoms of depression, as well as headaches, ringing
in his ears, vomiting, raised blood pressure, grinding of his teeth,
and insomnia over a five year period.
Sinnot v. Department of Defense, EEOC Appeal No. 01952872 (September 19,
1996), involved a complainant who endured 14 months of sexual harassment
and had suffered emotionally as a result. The Commission awarded
$20,000.00 in non-pecuniary damages for her emotional suffering based on
testimony from complainant, as well as her family and friends, describing
the harm she suffered, including the deterioration of her marriage.
In another case, Terrell v. Department of Housing and Urban Development,
EEOC Appeal No. 01961030 (October 25, 1996), the Commission awarded
$25,000.00 in non-pecuniary damages
to a complainant who was subjected to discrimination based upon sex
when he was not selected for a position in 1993. The complainant
testified to a number of emotional problems, including sleep problems,
frequent crying, embarrassment, mental anguish, loss of self-esteem,
introversion and disruptions in his relationships with his family and
friends. The complainant's psychiatrist determined that complainant
suffered depression and suicidal thoughts. In awarding $25,000.00 The
Commission found that the emotional harm lasted for approximately 18
months, but also noted that the majority of complainant's emotional
problems were not shown to be caused by the agency's adverse action.
In a more recent case, the Commission awarded $16,000.00 in non-pecuniary
damages to a complainant who testified to his emotional distress,
depression and marital troubles and provided a short statement from a
psychotherapist indicating that the complainant was experiencing stress
caused by his work situation. See Olsen v. Department of Defense,
EEOC Appeal No. 01956675 (September 18, 1998).
In determining the amount of non-pecuniary damages to which complainant
in the case at hand is entitled, the Commission has considered that
complainant has suffered from the effects of the discrimination for
approximately five years. We have considered the nature and severity of
the discrimination, as well as the nature and severity of complainant's
emotional distress and the fact that a large portion of the distress he
suffered was caused by the agency's discriminatory action. Finally, we
have taken into consideration amounts awarded in similar cases and the
goals of compensatory damages. Based on these factors, the Commission
finds that complainant is entitled to non-pecuniary damages in the amount
of $25,000.00
CONCLUSION
Based upon our review of the record, and for the foregoing reasons, we
hereby MODIFY the FAD. The Commission finds that complainant is entitled
to receive an award of compensatory damages in the amount of $25,000.00,
all of which constitutes compensation for non-pecuniary damages.
ORDER
The agency is ORDERED to take the following remedial actions:
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall issue a check to complainant in the amount
of $25,000.00. The agency is further directed to submit a report of
compliance, as provided in the statement below entitled �Implementation
of the Commission's Decision.� The report shall include evidence that
the corrective action has been implemented.
2. Since 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 is entitled to
an award of reasonable attorney's fees incurred in the processing of
his compensatory damages claim. 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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
July 24, 2000
__________________
Date
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.