01A03707
08-15-2003
Ramesh C. Rastogi, Complainant, v. Kenneth Y. Tomlinson, Chairman, Broadcasting Board of Governors, Agency.
Ramesh C. Rastogi v. Broadcasting Board of Governors
01A03707
August 15, 2003
.
Ramesh C. Rastogi,
Complainant,
v.
Kenneth Y. Tomlinson,
Chairman,
Broadcasting Board of Governors,
Agency.
Appeal No. 01A03707
Agency Nos. OCR-95-14
OCR-95-94-1
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant is not entitled to any compensatory damages.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a General Engineer. Complainant sought EEO counseling and
subsequently filed a formal complaint in July 1994, alleging that the
agency discriminated against him on the basis of reprisal for prior EEO
activity when he received a rating of "Fully Successful" on his 1993-94
performance appraisal. On June 19, 1995, complainant raised a second
claim of reprisal when he received a rating of "Fully Successful" on
his 1994-95 performance appraisal.
The consolidated complaint was appealed to the Commission and docketed
as EEOC Appeal No. 01964020. In our previous decision, we found that
the agency discriminated against complainant on the basis of reprisal
as to the 1994-95 performance appraisal, however, not as to the 1993-94
performance appraisal. Among other things, the previous decision ordered
the agency to conduct a supplemental investigation so to determine if
complainant is entitled to compensatory damages.
The agency conducted the supplemental investigation and complainant
submitted his documentation in support of his claim for compensatory
damages. In particular, complainant created a spreadsheet illustrating
his expenses. The spreadsheet contained complainant's requests
for pecuniary damages for the medical expenses incurred since 1993.
Specifically, complainant listed visits with various physicians and
counselors (Physician 1-4) and prescriptions for his depressive disorder.
Complainant also listed on the spreadsheet dates he was depressed and
stayed home from work from 1993 through 1999. Complainant claimed that
he should receive $256,000 for pain and suffering.
In its FAD, the agency concluded that complainant was not entitled to any
award for compensatory damages. As to past pecuniary damages, the FAD
found that complainant did not provide evidence of a causal connection
between his medical condition and the discrimination. The FAD noted that
several entries occurred prior to the date of the discriminatory act.
Further, the FAD stated that complainant's depression was a pre-existing
condition which was not caused by the performance appraisal. The FAD
found no connection between the discriminatory rating and the medical
attention complainant needed when he passed out at work because the
incident predated the appraisal. Although complainant provided receipts
for visits to a physician (Physician 1), the FAD noted that they were
not for complainant but for another individual. The FAD also determined
that complainant did not provide supporting evidence as to his claim
for future pecuniary losses. Finally, the FAD found that complainant
was not entitled to his requested non pecuniary damages. In particular,
the FAD noted that complainant provided no information as to the nature
and severity of the harm caused by the 1994-95 performance rating.
On appeal, complainant contends that he is entitled to the damages listed
on the spreadsheet. He argues that he has been diagnosed with depressive
disorder and tells of the time he collapsed at work, lacerating his chin
and bruising his left leg and right arm. He states that the receipts
for Physician 1 are under his wife's name and that her insurance does
not cover him. Complainant informs the Commission that Physician 3 is
a family psychotherapist. He also contends that the prescriptions were
issued by Physician 4 who diagnosed his condition and the supplements
are taken to avoid the side effects of the prescription drugs.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her 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 particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in the Commission's
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) (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. EEOC Notice No. N 915.002 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.
Pecuniary Damages
Pecuniary losses are out-of-pocket expenses that are incurred as a result
of the employer's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
Complainant stated without specificity that he incurred several medical
expenses due to the agency's discriminatory action.
Upon review, the Commission finds that complainant failed to establish a
nexus between his medical expenses and the agency's discriminatory action.
Complainant provides the Commission with a list of appointments without
comment. As to the medications and supplements, complainant does not
explain how they are connected to the 1994-95 appraisal. The Commission
finds that the list of appointments and expenses alone do not establish
the requisite nexus between the alleged harm and the discrimination.
Accordingly, we find that complainant is not entitled to past pecuniary
damages.
As to his request for future pecuniary damages, again, complainant merely
lists on the spreadsheet estimates for future medical appointments and
medication without explanation. The Commission finds that complainant
failed to establish that he would incur these expenses as a result of
the agency's discriminatory action. Therefore, we deny complainant's
request for future pecuniary damages.
Non-Pecuniary
In Carle v. Department of the Navy, the Commission explained that
�objective evidence� of non-pecuniary damages could include a
statement by the 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. The 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. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995).
Complainant requested $ 256,000 in non-pecuniary compensatory damages.
Complainant stated that he was diagnosed with depressive disorder and
even collapsed at work on September 30, 1994, due to the stress of the
work environment. He also noted that he is unable to relax and enjoy
the company of others and calls himself emotionally numb with no feelings
of pleasure, happiness, or relaxation.
The Commission finds that complainant has not shown a nexus between the
September 30, 1994 collapse at work and the 1994-95 performance appraisal
in that the collapse predated the discriminatory event. As noted,
complainant listed dates when he left work due to his depression and
visited his physicians. Several of these dates occurred prior to the
discriminatory action. Again, we find no nexus for those dates that
occurred prior to the performance appraisal. Further, the record
indicates that complainant was diagnosed for depression prior to the
discriminatory action. Therefore, we find that complainant's depressive
disorder was not caused by the 1994-95 performance appraisal.
However, we find that complainant has shown that the performance appraisal
affected him. Complainant stated that he was humiliated and harassed
due to the performance appraisal. There is one incident listed on the
spreadsheet for the day complainant received the performance appraisal.
On that day, complainant indicated that he was depressed and went home.
We find that complainant has shown the emotional effect of the agency's
discrimination. Based on the evidence reviewed above, we conclude that
complainant has established that he experienced emotional distress which
was caused by the agency's retaliation against him for engaging in prior
EEO activity when he was issued a rating of Fully Successful for his
work performance.
Upon review of the Commission's case precedent, we find his request for
$256,000.00 in non-pecuniary damages to be excessive. Taking into account
the evidence of non-pecuniary damages submitted by the complainant, the
Commission finds that complainant is entitled to non-pecuniary damages in
the amount of $ 500.00. This amount takes into account the severity and
duration of the harm suffered, and is consistent with prior Commission
precedent. See Jojola-Jemison v. United States Postal Service, EEOC
Appeal No. 01970027 (October 8, 1998) (awarding $ 500 in non-pecuniary
damages where harassment resulting in marital strain, injury to personal
and professional standing, depression, sleeplessness, anxiety, loss of
self-esteem, and damage to general health); Gross v. United States Postal
Service, EEOC Appeal No. 01980733 (November 19, 1999) (awarding $750 for
non-pecuniary damages where the agency issued complainant a Notice of
Removal that was later reduced to a 14-day suspension, which resulted in
emotional distress); Bates v. Department of the Air Force, EEOC Appeal
No. 01985401 (October 31, 2000) (granting $2,000.00 in non-pecuniary
damages for pain suffering, humiliation, loss of enjoyment of life and
harm to complainant's professional reputation experienced due to an
"Unacceptable" performance rating).
CONCLUSION
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
reverses the agency's final order denying complainant compensatory
damages.
ORDER
The agency is ORDERED to, within thirty (30) days of the date on
which this decision becomes final, tender to complainant non-pecuniary
compensatory damages in the amount of $ 500.00.
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.
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 (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
August 15, 2003
__________________
Date