0120102682
12-20-2011
Johnny W. Lovett, Jr., Complainant, v. Leon E. Panetta, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Johnny W. Lovett, Jr.,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 0120102682
Agency No. DECA000772008
DECISION
On May 28, 2010, Complainant filed an appeal from the Agency’s May 3,
2010, final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following
reasons, the Commission MODIFIES the Agency’s final decision.
ISSUE PRESENTED
The issue presented is whether the Agency’s order of compensatory
damages was proper.
BACKGROUND
On August 5, 2008, Complainant filed a formal EEO complaint, alleging
harassment based on disability and in reprisal for prior protected
activity when: (1) he was subjected to a hostile work environment at
Redstone Arsenal Base in Alabama; and, (2) in the summer of 2008, he
was not selected for a Store Director position at Arnold Air Force Base.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a final decision
(FAD) pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that he was subjected to disability
based discrimination or retaliation. However, due to the degree of
hostility to which Complainant was subjected at Redstone, the Agency
acknowledged that the responsible manager, who remained on its payroll,
needed management training and ordered her to attend said training.
Complainant filed an appeal to the Commission. In Lovett v. Dept. of
Defense (Defense Commissary Agency), EEOC Appeal No. 0120092291
(November 17, 2009), we affirmed the FAD as to its determination that
Complainant did not establish that he was discriminated against on
the basis of disability. However, we found that the Agency retaliated
against Complainant for engaging in prior protected EEO activity by not
selecting him for the Store Director position at the Arnold Air Force
Base Commissary in or about June 2008.
Among other remedies, we ordered the Agency to:
(1) offer Complainant in writing, the position of Store Director or a
position of equal grade and pay, duties, responsibilities, and benefits,
at the Arnold Air Force Base Commissary, retroactively effective to the
date he would have entered into the subject position;
(2) provide back pay, with interest, and other benefits due to
Complainant; and
(3) conduct a supplemental investigation into Complainant’s entitlement
to compensatory damages, including providing Complainant an opportunity
to submit evidence of pecuniary and non-pecuniary damages.
By letter dated January 14, 2010, the Agency offered Complainant
placement in the position that he would have been in, but for the
unlawful retaliation. In response, on January 22, 2010, Complainant’s
counsel rejected the offer, stating: “I am sure you are aware by
other documentation that has been provided to you that as a result of
the action of the employer which resulted in the EEOC case, Mr. Lovett
became disabled and is no longer able to fulfill the position and has
been determined by the Commissary System to be disabled.”
The Agency subsequently conducted a supplemental investigation on
Complainant’s entitlement to compensatory damages, as ordered,
and issued a FAD on damages (FAD2) on May 3, 2010. FAD2 awarded
Complainant $13,000 in non-pecuniary damages, noting that Complainant had
other stressors in his life, which pre-dated the Agency’s unlawful
retaliation. Specifically, FAD2 stated that “[t]he record showed
approximately 80 percent of your symptoms are attributable to claims
on which you did not prevail or were never plead. In light of the fact
that most of your symptoms are attributable to events other than your
non-selection, your pre-existing stressors, your pre-existing health
problems, and EEOC awards in cases with similar circumstances, the Agency
finds that $13,000 is an appropriate amount to compensate you for your
pain and suffering.”
FAD2 also found that Complainant was entitled to $2,000 in pecuniary
damages based on “the possibility that some of the medical bills [he]
incurred during the June 24 to November 17, 2008 timeframe could be
related to the reprisal discrimination.” We note that FAD2 did not
award Complainant anything for the loss of his potential future earnings,
despite his request for those future wages because he was now disabled
and unable to work.
It is from FAD2 that Complainant now appeals.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, indicated, through his
attorney, that he is entitled to a larger award of non-pecuniary damages.
In his brief, he stated that:
Mr. Lovett had truly had many stressors in his life, many of which were
delineated in the DeCA opinion; however, the record is clear that up
through June of 2008, he remained fully functional. Despite all the
problems he had encountered in his work and despite all the history he
had of trauma, he was still hanging in there, still together, still
performing, still working. There was a position coming open back at
Arnold as director for which he had the experience and background and had
worked and held the same position and that was his hope. That was what he
looked forward to - to regain his dignity. And then without just reason,
his hopes were crushed. It was the straw that broke the camel’s back
figuratively speaking. Everything else, all the pressures that he had
resisted and overcome, piled in on him when this hope of that position
fell through.
Complainant maintained that, “The record shows that in June of 2008,
when he was not selected for this position, he fell apart. He sought at
that time psychiatric treatment and has been determined by his treating
psychiatrist [TP], that he is [too] disabled to return to his work and
in fact it's unsafe for him to do so.” Complainant emphasizes that
he did not seek psychiatric treatment until July 2008, just after the
retaliatory non-selection occurred.
In addition, Complainant noted that during this period of time, because
of the financial loss and strain, and the emotional stress, he lost [his]
girlfriend of 12 years. According to Complainant, his former girlfriend
felt that he had changed and was not the same anymore. Complainant felt
that she was correct.
The Agency presents no new arguments in response to the appeal.
ANALYSIS AND FINDINGS
Compensatory Damages
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the CRA,
codified as 42 U.S.C. § 1981a, authorizes an award of compensatory
damages as part of the “make whole” relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended. Section 1981a(b)(3) limits the total amount of compensatory
damages that may be awarded to 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 persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. § 1981a(b)(3)(D).
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in Enforcement Guidance:
Compensatory and Punitive Damages Available Under § 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002, (July 14, 1992) (Guidance).
Non-pecuniary Damages
In Carle v. Dep’t of the Navy, the Commission explained that evidence
of non-pecuniary damages could include a statement by Complainant
explaining how he or she was affected by the discrimination. EEOC Appeal
No. 01922369 (January 5, 1993). Statements from others, including family
members, friends, and health care providers could address the outward
manifestations of the impact of the discrimination on the complainant. Id.
Complainant could also submit documentation of medical or psychiatric
treatment related to the effects of the discrimination. Id. Non-pecuniary
damages must be limited to the sums necessary to compensate the injured
party for the actual harm and should take into account the severity of
the harm and the length of the time the injured party has suffered from
the harm. Carpenter v. Dep’t of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995).
In 2007, Complainant, against his wishes, was reassigned to a lower
level position, despite his seniority and work experiences to Redstone
Arsenal in Huntsville, Alabama. This required that he, a single father,
commute approximately 160 miles, away from his teen-age son who had
recently been severely burned and scarred in a fire. Complainant felt
he was harassed in that location, and although the Commission found
no evidence that the harassment was discriminatory in nature, as noted
above, the Agency ordered the responsible manager at Redstone to undergo
management training.
The record indicates that subsequent to the retaliatory non-selection,
Complainant experienced, among other symptoms: hypertension, depression,
stress, anxiety, headaches, chest pain, stomach cramps, sleep problems,
nightmares, flashbacks, irritability, anger, a lack of interest in
social activity, and thoughts of violence toward management and himself.
Complainant was pronounced unable to work, by his psychiatrist, because of
his homicidal ideations, among other symptoms. Complainant subsequently
filed for disability retirement. Undoubtedly, many of these symptoms were
present before the Agency retaliated against Complainant relative to
the non-selection. As noted above, Complainant was under a high level
of stress during his tenure at the Redstone Arsenal. However, we are
persuaded that the retaliatory non-selection significantly exacerbated
Complainant’s symptoms, as his hopes of escaping what he felt was an
intolerable situation at Redstone Arsenal were not realized. In fact,
FAD2 recognizes that the reprisal discrimination could have exacerbated
his emotional and physical condition. FAD2, at 2. We also note that
he sought psychiatric help in July 2008, shortly after his retaliatory
non-selection occurred in late June 2008. This also supports his
contention that the non-selection exacerbated his pre-existing problems.
In support of his claim for increased non-pecuniary damages, Complainant
provided a letter written to the Agency where his attorney describes
the emotional and financial problems that he has experienced:
During this period of time, he suffered with and continues to suffer
with the depression and humiliation that came from the treatment that he
received and the status that was lost in the process. He had had a long
career first with the military and then with the Defense Commissary System
and was proud of his position and accomplishments and then suddenly, due
to this situation, he was unemployed and out of funds. It is extremely
difficult to verbalize the psychological and emotional effect that places
on one, but I guess it's best said by the fact of the necessitated
ongoing treatment by [the psychiatrist]. During this period of time,
he needed an additional student loan for [his] son… His son was not
employed so he had to be the one to seek and obtain the student loan
for him as his father; however, he was denied the loan because of his
indebtedness and lack of employment.
Complainant claimed that he has been “low-balled” in the Agency’s
Order of Remedies, while the Agency argues that only $13,000 in
non-pecuniary damages are warranted. After a thorough review of the
record, we find, for the reasons set forth above, that an award of $13,000
is inadequate, and that $50,000 is appropriate to compensate Complainant
for his pain and suffering resulting from the unlawful retaliation.
We point out that non-pecuniary compensatory damages are designed to
remedy harm and not to punish an agency for its discriminatory actions.
See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 311-12
(1986) (stating that compensatory damages determination must be based
on the actual harm sustained and not the facts of the underlying case).
The Commission notes that this award is not “monstrously excessive”
standing alone, is not the product of passion or prejudice, and is
consistent with the amount awarded in similar cases.
In examining other cases awarding non-pecuniary compensatory damages
in similar circumstances, we find that the amounts awarded, even with
a deduction for pre-existing conditions, were higher than the $13,000
awarded by the Agency in this case. In Carlson v. Dep’t of Justice,
EEOC Appeal No. 01A51437 (April 27, 2005), we awarded Complainant
$30,000, for a finding of discrimination based on reprisal, where
Complainant testified that he experienced depression, anger, alienation,
humiliation, embarrassment, and a loss of status, and his therapist,
wife, and other family members confirmed his symptoms. In other cases
finding discrimination based on reprisal where the employee described
feelings of shame, humiliation, low-self esteem, and a loss of status,
the Commission has awarded amounts between $25,000 and $60,000,
depending on the time periods involved and other factors. See, e.g.,
Levy v. Dep’t of Veterans Affairs, EEOC Appeal No. 01A01561 (May 12,
2003) ($60,000); Arreola v. Dep’t of Justice, EEOC Appeal No. 01A03342
(January 17, 2002) ($50,000); Arizola v. Dep’t of Homeland Security,
EEOC Appeal No. 07A30132 (February 4, 2004) ($50,000); Holliday v. Dep’t
of Agriculture, EEOC Appeal No. 01A03047 (June 12, 2002) ($50,000);
Washington v. Dep’t of Veterans Affairs, EEOC Appeal No. 07A50033
(March 25, 2005) ($25,000).
Pecuniary Damages
Pecuniary losses are out-of-pocket expenses that are incurred as
a result of the employer's unlawful action. Typically these damages
include reimbursement for medical expenses, job-hunting expenses, moving
expenses, and other quantifiable out-of-pocket expenses. Enforcement
Guidance: Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14,
1992), at 14. Past pecuniary losses are losses incurred prior to the
resolution of a complaint through, among other things, a finding of
discrimination. Id. at 8-9. Future pecuniary losses are losses that are
likely to occur after resolution of a complaint. Id. at 9. For claims
seeking pecuniary damages, such objective evidence should include
documentation of out-of-pocket expenses for all actual costs and an
explanation of the expense, e.g., medical and psychological billings,
other costs associated with the injury caused by the agency's actions,
and an explanation for the expenditure. Id. at 9.
Complainant requested $3,962 for medical bills. He provided copies of
medical bills to substantiate his claim. The Agency only awarded him
$2,000 of what he requested on the grounds that not all of the treatments
were for symptoms arising out of the retaliation. We note, however,
that all the medical bills arose after Complainant’s non-selection.
Furthermore, the Agency, without indicating which bills it believes were
unrelated to the discriminatory non-selection, simply disallowed $1,962.
We find the Agency’s actions to be improper and shall increase the
award to $3,962, the full amount to which Complainant requested.1
Loss of future earning capacity
The Commission has awarded future pecuniary damages for the loss of
future earning capacity where an employee has shown that his or her
future earning power has been diminished as a result of the agency's
discrimination. See Moore v. U.S. Postal Serv., EEOC Appeal No. 0720050084
(March 6, 2007) (awarding future pecuniary damages for the loss of future
earning capacity for a period of two years); Hernandez v. U.S. Postal
Serv, EEOC Appeal No. 07A30005 (July 16, 2004) (compensating the
complainant for his lost earning capacity from the date of the AJ's
decision until his sixty-fifth birthday); Brinkley v. U.S. Postal Serv,
EEOC Request No. 05980429 (August 12, 1999) (awarding 6 years of future
pecuniary damages for complainant's loss of future earning capacity,
totaling $152,034.00). Proof of entitlement to damages for loss of
future earning capacity involves evidence suggesting that an individual's
injuries have narrowed the range of economic opportunities available to
her. Brinkley, EEOC Appeal No. 05980429. Generally, the party seeking
compensation for loss of earning capacity needs to provide evidence to
demonstrate with reasonable certainty or reasonable probability that the
earning capacity has been impaired and there must be evidence “which
will permit the [fact finder] to arrive at a pecuniary value for the
loss.” Id. (quoting Carpenter v. Dep’t of Agric., EEOC Appeal
No. 01945652 (July 17, 1995)).
Complainant states in his claim for compensatory damages, the following:
“… in addition to the loss of the prior income from the position,
he will lose the difference between what he will draw as disabled from
disability retirement and what he would have made had he been able to
accept the position and work as the store director at Arnold Air Base.”
Just before the non-selection, Complainant went on leave due, at least in
part, to stress related to his work environment. However, at that point,
there was no indication that he was too disabled to return to work when
he felt ready to do so. oThe record evidence indicates that very soon
after Complainant learned he was not selected for the Store Director
position which would have allowed him to be closer to his teen-age son
and lessen his commute, Complainant became unable to return to work.
It was not until after the non-selection occurred, that Complainant was
pronounced unable to return to work by a mental health professional.
Specifically, the record shows that Complainant’s psychiatrist
determined in August 2008, that Complainant could not return to work
because of his mental/psychological condition and the threat he could
impose on the workplace. The psychiatrist reiterated the restriction
in November 2008, February 2009, May 2009 and December 2009.2 By
December 2009, Complainant had been approved for disability retirement
(incidentally, noting on his application, that he had become disabled for
his position in June 2008, which is when the non-selection occurred).
Complainant’s earning capacity has clearly been diminished in that
his disability retirement payments will be less than the salary he would
have earned if selected as a Store Director in June 2008.
Accordingly, as a remedy, we order the Agency to calculate Complainant's
loss of future earning capacity from January 22, 2010 (when he rejected
the offer to be placed in the Store Director position through the date
when he would have become eligible for retirement. We note that any
future pecuniary damages paid to Complainant must be offset by the
amount of any wage replacement benefits he receives through disability
retirement. In addition, we note that under Title VII, awards for loss of
future earning capacity are subject to the statutory cap for compensatory
damages - in this case $300,000.00. 42 U.S.C. § 1981a(b)(3)(D).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we MODIFY FAD2.
We REMAND this matter to the Agency, for further processing in accordance
with the ORDER below.
ORDER
To the extent it has not already done so, the Agency is ordered to do
the following within (sixty) 60 days of this decision becoming final
unless otherwise indicated below:
(1) Pay Complainant a total of $50,000 in non-pecuniary damages.
(2) Pay Complainant a total of $3,962 in pecuniary damages.
(3) Calculate (and pay Complainant for) Complainant’s loss of future
earning capacity from January 22, 2010 through the date when he would
have become eligible for retirement.
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 above corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
____12/20/11______________
Date
1 The Agency did not argue that $3,962 was not the actual amount
of Complainant’s medical expense or that he submitted evidence to
substantiate that amount.
2 For example, the psychiatrist wrote: “Strongly advised not to go
back to work due to being at high risk for hurting people,” (May 6,
2009) and “Strongly advised not to go back to work because his severe
stressors and his multi-axial diagnosis make him at high risk from being
homicidal and suicidal at this time.” (December 9, 2009).
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0120102682
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102682