John P. Gilvin, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 30, 2003
01a23823 (E.E.O.C. Oct. 30, 2003)

01a23823

10-30-2003

John P. Gilvin, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


John P. Gilvin v. Department of Veterans Affairs

01A23823

10/30/03

.

John P. Gilvin,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A23823

Agency No. 99-3583

DECISION

Complainant timely initiated an appeal concerning an award of compensatory

damages from his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission AFFIRMS the agency's final decision.

In a complaint dated March 16, 1999, complainant alleged that the

agency discriminated against him on the basis of disability (Depression,

Post Traumatic Stress Disorder, back strain), and reprisal (prior EEO

activity) when, on the same day, he was terminated from his position

as a Staff Nurse. In a final agency decision dated November 5, 2001,

the agency concluded that complainant established he was discriminated

against on the basis of disability.<2> On appeal, we affirmed the

agency's final decision, and remanded the matter to the agency for an

investigation into complainant's entitlement to compensatory damages.

See Gilvin v. Dept. of Veteran's Affairs, EEOC Appeal No. 01A21312

(September 25, 2003).

In its second final decision, the agency determined that complainant

established he suffered greatly as a result of the discrimination.

Indeed, complainant testified that as a result of the agency's actions,

complainant was diagnosed with bipolar disorder, became despondent and

suicidal as a result of his financial concerns and inability to care for

his family. However, the agency also determined that other factors,

unrelated to the discrimination also contributed to the complainant's

emotional distress. To compensate complainant for his emotional distress

which he established was causally related to the discrimination, the

agency awarded complainant $50,000 in non-pecuniary damages. As for

pecuniary damages, the agency concluded that complainant failed to

present sufficient evidence, such as receipts, of the out of pocket

expenses and financial hardship he suffered because of the discrimination.

Complainant appealed the agency's final decision, but did not submit

any contentions on appeal. The agency asks that we affirm the FAD.

Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant

who establishes unlawful intentional discrimination under either

Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42

U.S.C. � 2000e et seq. or Section 501 of the Rehabilitation Act of 1973

(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. may receive

for past and future pecuniary losses (i.e., out-of-pocket expenses) and

non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of

this "make whole" relief. 42 U.S.C. � 1981a(b)(3). In West v. Gibson,

527 U.S. 212 (1999), the Supreme Court held that the Commission has the

authority to award compensatory damages in the federal sector EEO process.

The particulars of what relief may be awarded, and what proof is necessary

to obtain that relief, are set forth in detail in EEOC's Enforcement

Guidance, Compensatory and Punitive Damages Available Under Section 102

of the Civil Rights Act of 1991 (July 14, 1992) ("Enforcement Guidance").

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. Department 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. Enforcement Guidance

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.

We find that the agency properly determined that complainant suffered

harm because of its discriminatory conduct, and complainant has provided

sufficient evidence to justify the $50,000 awarded by the agency in

this case. Complainant proved, through his own testimony, the report of

his treating physicians and psychologists that he experienced stress,

anger, and frustration for over two years; his relationships with his

family were strained; and he became suicidal. The evidence revealed

complainant was devastated as to his inability to provide financially

for his family, and as a result, his termination was a factor that led

to the separation from his common law wife. Based upon the testimony

in the case, as well as an examination of Commission precedent, we find

that the agency's award of $50,000 was appropriate, given that factors

other than the discrimination in this case contributed to complainant's

emotional distress.

Accordingly, we affirm the agency's final decision, and remand the matter

to the agency in accordance with the order below.

ORDER (C0900)

The agency is ordered to take the following remedial action:

To the extent that the agency has not already done so, within thirty

(30) days from the date this decision becomes final, the agency shall

pay complainant $50,000 in non-pecuniary compensatory damages.

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 verifying

that the corrective action has been implemented.

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

10/30/03

Date

1There is no evidence in the record as to the date complainant received

the agency's final decision.

2The FAD also found complainant failed to establish he was subjected

to discrimination when: (1) from March 2, 1998 to March 27, 1998, he

was allegedly reassigned to light duty as the charge nurse; (2) on or

about May 28, 1998, he allegedly received a low appraisal rating from

his supervisor; and (3) on or about July 9, 1998, he was assigned light

duty as an escort in the Police and Security Service.