07a50033
03-25-2005
Larry C. Washington, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Larry C. Washington v. Department of Veterans Affairs
07A50033
March 25, 2005
.
Larry C. Washington,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 07A50033
Agency No. 2003-0362-2002101064
Hearing No. 330-2003-08117X
DECISION
The agency issued a December 8, 2004 notice of final action declining
to implement the relief ordered by an EEOC Administrative Judge with
regard to a finding of discrimination based on reprisal in complainant's
complaint of unlawful employment discrimination.
Complainant filed a formal complaint with the agency dated February 15,
2002, alleging that he was subjected to discrimination on the bases of
age and in reprisal for prior protected activity when: (1) on November
15, 2001, panel members for the Upward Mobility position, VN 2001-237-HQ,
Program Support Clerk, GS-303-4, Target Veterans Service Representative,
GS-996-5/7/9/10, screened him out of the most qualified candidate
pool that subsequently resulted in his non-selection; (2) management
intentionally failed to send complainant via electronic mail the
vacancy for VA#394-02-362-01-225, Claims Assistant, GS-998-05,TGS-06,
which subsequently resulted in his non-selection; (3) on October 8,
2002, complainant received notification that management failed to promote
him to the position of VA#2002-269-HO, Veterans Service Representative,
GS-996-05, GS-05/7/10/11; (4) on April 29, 2003, complainant applied for
the position of Veterans Claim Assistant, GS-998-5, Target 6 or GS-998-6
under VN 394-03-362-233-214 and was not selected; and (5) on October 23,
2003, complainant applied for the position of Veterans Claims Assistant,
GS-998-5, Target 6, with a full performance level of GS-6, under VN
394-04-362-05-14 and was not selected.
Following the investigation of his complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ). A hearing was held on
August 12, 2004, and the AJ subsequently issued a bench decision on August
25, 2004, finding that complainant was subjected to discrimination on the
basis of reprisal when he was non-selected for the position of Veterans
Service Representative (VSR), GS-996-05/7/10/11 on October 8, 2002.<1>
The AJ ordered complainant to submit any evidence of damages resulting
from the acts of discrimination by September 13, 2004, and allowed the
agency to respond to complainant's request for damages and costs by
October 4, 2004.
On October 18, 2004, the AJ issued a decision awarding complainant the
following relief with regard to his complaint of unlawful non-selection:
The agency shall promote complainant to the position of Veterans
Service Representative, GS-5, retroactive to September 20, 2002, a GS-7,
retroactive to September 20, 2003, and a GS-9, retroactive to September
20, 2004. The agency is further ordered to provide any and all training
and/or a mentor available for the position;
The agency shall determine the appropriate amount of back pay (with
interest, if applicable), and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501 for the period beginning September 20, 2002,
to the present;<2>
The agency shall compensate complainant $25,000.00 for non-pecuniary
damages;
The agency shall compensate Attorney A in the amount of $4,000.00
in attorney's fees and Attorney B in the amount of $4,417.20 for
attorney's fees;
The agency shall post written notices for ninety days in conspicuous
places at their respective agencies that discrimination has been found
on this complaint; and
The agency shall take immediate steps to provide training to all
officials involved in this case on the current state of the law
on employment discrimination, including discrimination based upon
retaliation in the workplace, and goals behind the law requiring equal
employment opportunities for all.
The agency issued its final order on December 8, 2004, accepting the AJ's
finding of discrimination and rejecting the compensatory and attorney's
fees awards provided for by the AJ. The agency simultaneously filed
the present appeal.
On appeal, the agency argues that the AJ erred in awarding complainant
back pay and the pay difference between the VSR position to which he was
non-selected and the Veterans Claims Assistant (VCA) position to which
he was subsequently selected. The agency claims that complainant should
be offered a promotion to the VSR position and should receive back pay
for the VSR wages he did not receive prior to his selection to the VCA
position and should thereafter receive the difference in pay between
the VSR and VCA positions up until the period he accepts, rejects,
or allows the offer of promotion to expire. The agency contends that
if complainant turns down the offer of promotion to the VSR position,
he will no longer be entitled to receive the pay difference between the
VSR position and his current VCA position. Otherwise, the agency argues,
complainant could seek indefinite entitlement to the difference in wages
between the VSR and VCA positions.
Additionally, the agency argues that the AJ's award of $25,000.00 in
non-pecuniary damages was excessive. Specifically, the agency states
that the record shows that complainant had a pre-existing condition
of major depressive disorder. The agency notes that the record shows
that complainant was diagnosed with major depressive disorder due to
�multiple stressors� on July 16, 2002, approximately two months prior
to the non-selection at issue. Additionally, the agency notes that
a December 17, 2002 letter from complainant's psychiatrist shows that
complainant had been a patient of his since October 2002, was suffering
from depression �due to multiple stressors.� The agency claims that
the doctor did not directly attribute complainant's depression to
the non-selection and did not describe the severity of complainant's
depression. The agency acknowledges there is other evidence in the record
to support complainant's assertion that he suffered emotional harm as
a result of the October 8, 2002 non-selection, including complainant's
own statement and statements from two other witnesses.<3> The agency
states that the evidence submitted by complainant is sufficient to
show that the October 2002 non-selection exacerbated his pre-existing
condition of major depressive disorder. However, the agency argues
complainant failed to establish the severity of the exacerbation.
Based on the evidence submitted by complainant, the agency argues that
a lower compensatory damages award is appropriate.
Finally, the agency challenges the award of $4,000.00 in attorney's fees
for complainant's prior attorney, Attorney A. The agency notes that
the record does not contain a fee petition or affidavit from Attorney
A attesting to the nature of the work performed, her hourly rate, or
the number of hours of work expended for representation of complainant.
The agency notes that Attorney B stated that he reviewed the work expended
by Attorney A and the invoice for her services and determined her fee was
reasonable. However, the agency notes that Attorney B did not identify
the work performed by Attorney A or include Attorney A's invoice. Thus,
the agency argues that it does not have sufficient evidence upon which
to adjudicate the work performed by Attorney A.
The record contains a copy of the �Application of [Complainant] for Award
of Damages and Attorney's Fees and Request for Additional Relief� in
which complainant requests compensation for the pay difference between
his position and that of the VSR position that he had applied for but
was wrongfully denied.
As an initial matter, we find that as neither party disputes the AJ's
finding of discrimination, we hereby AFFIRM that determination.
Promotion and Back Pay
Upon review, we find that the AJ correctly found that as a result of the
discriminatory non-selection complainant should be retroactively promoted.
However, we slightly modify the retroactive promotion of complainant to
the position for which he was not selected or a substantially equivalent
position. Further, we find that the AJ correctly awarded complainant
back pay with interest and other benefits due from September 20, 2002,
to the present pursuant to 29 C.F.R. � 1614.501(c). Despite the agency's
contention, we find the AJ's award does not allow complainant to collect
back pay for time beyond which he accepts, rejects, or allows the agency's
offer of promotion to lapse.
Compensatory Damages
To receive an award of compensatory damages, complainant must demonstrate
that he has been harmed as a result of the agency's discriminatory action;
the extent, nature and severity of the harm; and the duration or expected
duration of the harm. See Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (December 11, 1995); Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992).
An award of compensatory damages for non-pecuniary losses, including
emotional harm, should reflect the extent to which the respondent directly
or proximately caused the harm, and the extent to which other factors
also caused the harm. The Commission has held that evidence from a
health care provider is not a mandatory prerequisite for recovery of
compensatory damages. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases.
See Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
After a careful review of the record, considering the nature of the
discriminatory actions and the nature of the harm to complainant, we
find the award of $25,000.00 in non-pecuniary damages was appropriate.
The AJ noted that complainant, in his statement, detailed that he suffered
from anxiety, irritability, mood swings, had fluctuating periods of
energy and motivation levels and appetite, had problems sleeping,
and had difficulty concentrating. The AJ found the letters from his
co-workers supported complainant's claim of mental anguish he described
and his depressive state. The AJ noted that complainant had to endure
embarrassment and humiliation for over a two-year period. The record
contains a December 17, 2002 letter from a psychiatrist which diagnosed
complainant with major depressive disorder due to multiple stressors.
The Commission has awarded similar compensatory damages in cases similar
to complainant's case: See Pachecano v. United States Postal Service, EEOC
Appeal No. 01A32170 (May 20, 2004) ($25,000.00 awarded in non-pecuniary
damages where complainant produced evidence indicating that the agency's
discriminatory non-selection caused him, among other things, moodiness,
alienation, anger, depression, solitude, and was a stressor in aggravating
his PTSD and Major Depressive Symptoms); Baker v. Department of Veterans
Affairs, EEOC Appeal No. 07A30075 (August 7, 2003) ($25,000.00 awarded
in non-pecuniary damages where complainant produced evidence that the
discriminatory non-selection caused her to be withdrawn and depressed
and was among the factors that contributed to her emotional distress).
Further, the amount of the award meets the goals of not being "monstrously
excessive" standing alone, not being the product of passion or prejudice,
and being consistent with the amount awarded in similar cases.
Attorney's Fees
Upon review, we vacate the AJ's award of attorney's fees in the amount
of $4,000.00 awarded to Attorney A. EEOC Regulations provide that
�The amount of attorney's fees shall be calculated using the following
standards: The starting point shall be the number of hours reasonably
expended multiplied by a reasonable hourly rate.� 29 C.F.R. �
1614.501(e)(2)(ii)(B). In the present case, the record contains no
evidence that complainant presented a fee petition or affidavit from
Attorney A attesting to the nature of the work done on the case, the
number of hours spent working on the case, or the hourly rate charged for
her services. Thus, we are unable to determine whether the $4,000.00
awarded to Attorney A by the AJ was reasonable. The Commission shall
remand the issue regarding attorney's fees for Attorney A so that
complainant may be given the opportunity to provide to the agency a
verified statement of attorney's fees and costs as well as an affidavit
from Attorney A itemizing the charges.
CONCLUSION
The agency's final order concerning compensatory damages and back pay
is REVERSED. The agency's final order concerning attorney's fees for
Attorney A is VACATED. The matter is REMANDED to the agency for further
processing pursuant to the Order herein.
ORDER
Within 30 days of the date this decision becomes final the agency shall
take the following actions:
The agency shall promote complainant to the position of Veterans Service
Representative, GS-5, or a substantially equivalent position, retroactive
to September 20, 2002, a GS-7, retroactive to September 20, 2003, and a
GS-9, retroactive to September 20, 2004. The agency is further ordered to
provide any and all training and/or a mentor available for the position;
The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due complainant for the period
beginning September 20, 2002, to the time complainant is placed into
the Veterans Service Representative position, pursuant to 29 C.F.R. �
1614.501. Complainant shall cooperate in the agency's efforts to compute
the amount of back pay and benefits due and shall provide relevant
information requested by the agency. If there is a dispute regarding
the exact amount of back pay and/or benefits due, the agency shall issue
complainant a check for the undisputed amount within thirty calendar
days of the date that the agency determines the amount it believes due.
Complainant may petition for enforcement or clarification for the amount
in dispute.
The agency shall compensate complainant $25,000.00 for non-pecuniary
damages;
The agency shall notify complainant to provide a verified statement
of attorney's fees and costs as well as an affidavit from Attorney A
itemizing the charges from Attorney A, attesting to the nature of the
work performed, her hourly rate, and the number of hours or work spent
on complainant's case. Within 30 days of receiving the fee petition
or affidavit detailing Attorney A's services, the agency shall issue a
decision on attorney's fees in accordance with 29 C.F.R. � 1614.501(e).
Complainant shall be given 30 days, after receipt of the agency's
notification, to respond to the agency's request for attorney fee
information. If complainant fails to submit this information to the
agency, then the agency may issue a decision stating that complainant
is not entitled to attorney's fees for Attorney A.
To the extent it has not already done so, within thirty days of the date
this decision becomes final, the agency shall compensate Attorney B in
the amount of $4,417.20 for attorney's fees.
The agency shall post a copy of the attached NOTICE TO EMPLOYEES POSTED
BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION in accordance
with the provision herein entitled POSTING ORDER.
The agency shall take immediate steps to provide training to
all officials involved in this case on the current state of law on
employment discrimination, including discrimination based on retaliation
in the workplace, and goals behind the law requiring equal employment
opportunities for all.
The agency shall consider taking appropriate disciplinary action
against the responsible management official. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. If the agency decides to take
disciplinary action it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
Documentation of compliance with provisions 1 - 8 of this Order must be
sent to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Veterans Affairs Regional Office,
Houston, Texas facility copies of the attached notice. Copies of the
notice, after being signed by the agency's duly authorized representative,
shall be posted by the agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
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.
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 (R0900)
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, Director
Office of Federal Operations
March 25, 2005
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated _____________________ ,which
found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. has occurred at the Veterans
Affairs Regional Office, Houston, Texas (hereinafter �facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or PHYSICAL OR MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against
the individual affected by the Commission's findings on the basis of
retaliation. The agency has been ordered to remedy the discrimination
by: retroactively promoting complainant; paying back pay and other
benefits due; providing complainant compensatory damages; paying
attorney's fees, and providing training to all officials involved in
the case. The facility will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
___________________________
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1During the hearing, complainant withdrew issues (1), (2), (4) and (5)
and the age purview from his complaint.
2We note the AJ's decision incorrectly cited 29 C.F.R. � 1614.105 instead
of 29 C.F.R. � 1614.501.
3The agency notes that complainant submitted an affidavit from one
co-worker (Complainant's Exhibit C) which relates to a non-selection which
complainant subsequently withdrew from consideration during the hearing.