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.