0120100118
07-11-2012
Richard G. Chavez, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Richard G. Chavez,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120100118
Agency No. CREES200201273
DECISION
On October 14, 2009, Complainant filed an appeal from the Agency's September 16, 2009, final decision, concerning his entitlement to non-pecuniary compensatory damages stemming from the Agency's violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Specifically, the Agency awarded him $15,000.00 in non-pecuniary compensatory damages, while Complainant requested $175,000.00. The Commission accepts the appeal, pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
1. Whether the Agency erred in awarding Complainant $15,000.00 in non-pecuniary compensatory damages for sending a retaliatory email that disclosed to senior officials that he had filed an EEO complaint, thereby raising concerns about him co-chairing an employee advisory council.
BACKGROUND
Complainant worked as an Equal Opportunity Specialist, GS-14, with the Cooperative State Research, Education, and Extension Service, Civil Rights Staff, in Washington, D.C. In 2002, the Agency's Secretary appointed Complainant to co-chair the American Indian/Alaska Native Employee Advisory Council.
In a December 3, 2002 email, Complainant's supervisor disclosed Complainant's prior EEO activity to senior officials in his office and on the Advisory Council. The email stated: "[Complainant,] it is regrettable that you distractedly viewed our meeting on November 13, 2002, as hostile and retaliatory because of your civil rights complaint."
One of the email recipients, the Executive Assistant to the Advisory Council, was concerned that this information "had the potential to create a negative perception with the [Advisory Council] following [Complainant's] appointment as Co-chair." Report of Investigation (ROI), Exhibit (Ex.), at 2. The Executive Assistant immediately contacted Complainant, who had to meet with him to explain the background, history, and details of Complainant's pending EEO complaint. Id.
In Chavez v. Dep't of Agriculture, EEOC Appeal No. 0120062643 (Sept. 26, 2008), the Commission found that the supervisor's email and the Executive Assistant's response constituted reprisal for prior EEO activity. The Commission ordered the Agency, in relevant part,1 to conduct a supplemental investigation on compensatory damages and then issue a final decision.
Determination of Non-pecuniary Compensatory Damages
In his claim for compensatory damages, Complainant requested, in relevant part, $175,000.00 in non-pecuniary compensatory damages. He argued that this amount was warranted because this incident resulted in over seven years of lost self-esteem, enjoyment of life, sleep, and libido. Throughout this time, he experienced anger, anxiety, depression, fatigue, and fear of the future. For supporting evidence, Complainant offered his own testimony, as well as the testimony of his wife and friends.
In its final decision, the Agency awarded Complainant $15,000.00 in non-pecuniary compensatory damages. The Agency found that Complainant suffered emotional harm in the immediate aftermath of the December 3, 2002 incident, because he was concerned that the retaliatory actions had diminished his chances to serve on the Advisory Council. But his emotional distress should have been mitigated after he learned that he could continue serving as co-chair of the Advisory Council. Because Complainant did not allege that his supervisor engaged in further acts of discrimination or reprisal, the Agency found Complainant's continued fears about what his supervisor might do to him to be general and speculative in nature.
Due to the lack of sufficient evidence to establish the duration and severity of the emotional harm, and the absence of medical documentation to show that Complainant received treatment for his mental and emotional state, the Agency found it appropriate to award him $15,000.00.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the supporting affidavits were sufficient to establish:
* the nature of his emotional distress (loss of self-esteem, loss of enjoyment of life, loss of sleep, anger, anxiety, depression, fatigue, loss of libido, and fear of the future)
* the severity of his distress (sleeping only 2 to 3 hours a night for the past 7 years, inability to care for himself and attend to financial matters, cessation of activities that he used to enjoy with his wife, family, and friends)
* the long duration of the harm (the supporting statements used words such as "continued," and referred to the present tense).
He argues that the absence of medical documentation should not diminish the strength of his claim to compensatory damages.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo an agency's final decision that is issued without a hearing under 29 C.F.R. � 1614.110(b). 29 C.F.R. � 1614.405(a).
"The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. . . . The Commission will review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes a 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 EEOC Notice No. 915.002, Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992). Briefly, 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. Dep't. 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 Complainant and the extent to which other factors may have played a part. EEOC Notice No. 915.002, at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to Complainant, and the duration or expected duration of the harm. Id. at 14.
Non-pecuniary Damages
Non-pecuniary losses are losses that are not subject to precise quantification: emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.002 at 10 (July 14, 1992). Non-pecuniary damages are limited to the amount 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.2 Carpenter v. Dep't. of Agric., EEOC Appeal No. 01945652 (July 17, 1995).
To demonstrate non-pecuniary damages, a complainant can submit objective evidence, as well as other types of evidence, including:
* a statement by the complainant, explaining how the discrimination affected the complainant;
* statements from others, including family members, friends, and health care providers, that address the outward manifestations of the impact of the discrimination on the complainant; and
* documentation of medical or psychiatric treatment related to the effects of the discrimination.
See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).
In his statement, Complainant testified that in the days immediately following the retaliatory email, he felt humiliated, ashamed, and embarrassed, and was unable to sleep because he feared he would be removed from the Advisory Council, thanks to the impermissible concerns raised in the email amongst the council members. The affidavits of Complainant, his wife, and friends, state that Complainant suffered "unbearable" emotional pain and mental anguish (humiliation, embarrassment, feeling of worthlessness), and for all these years has suffered loss of enjoyment of life (friends thought he was depressed, no more joy in walking home with wife, no more playing ball with grandchildren, no more attending art performances and exhibits; loss of sexual drive), and loss of health (fatigue and exhaustion resulted in him not paying attention to his health, sleeping only 2 to 3 hours each night).
Complainant states that the harms have persisted all these years because he has seen "indicators" of how his supervisor can manipulate people and procedures to keep himself "in the loop," even when there is a clear conflict of interest. Complainant's Verified Statement, at 2. He remains very fearful of his supervisor: "I am so tormented that I am not sure when, where or how this will all end. I am worried of what else will happen to me and my family, what other discriminatory and devious ways I will be subjected to by the confirmed discriminator." Id.
Compensatory damages are available to the extent necessary to compensate a victim, but only for an agency's intentional discrimination in the workplace. Under the facts of this case, the intentional discrimination comprised of one retaliatory email by Complainant's supervisor and the response by a member of the Advisory Council, which led to questions and uncertainty about Complainant's future participation in this council. We find that for the days immediately following those retaliatory acts, Complainant suffered acute emotional pain and mental anguish and slept little as he coped with the uncertainty surrounding his leadership status as co-chair of the Advisory Council.
However, we find it unlikely that any emotional or physical harm attributable to the retaliatory email and Advisory Council's response was likely to extend beyond the date that Complainant learned he would remain as the co-chair of the Advisory Council. Complainant's appellate brief acknowledges that he has not suffered any subsequent discriminatory acts in the years since the retaliatory events at issue here. His emotional distress stems from a fear that his supervisor could discriminate against him again in the future.
Upon review, we find little evidence to indicate that Complainant suffered additional attributable harms after learning that his place on the Advisory Council was secure. Although Complainant's wife stated that Complainant has been to "innumerable" doctor's visits due to his ongoing medical problems, the record contains no medical documentation or testimony from any of Complainant's physicians or psychiatrists, explaining what specific physical or mental conditions Complainant currently has, how long those ailments have persisted, and what factors may have caused those conditions. Complainant's wife states that Complainant "has started seeing a licensed psychiatrist," implying that he had not seen one for the many years after the discriminatory events.
Because we find that the emotional and physical harm (intense feelings of embarrassment and humiliation and lack of sleep for several nights) actually attributable to the retaliatory email and Advisory Council persisted for only a short time, we determine that the Agency's award of $15,000 in non-pecuniary compensatory damages is appropriate.
This result is consistent with recent cases. In Minor v. U.S. Postal Serv., EEOC Appeal No. 0120103711 (May 17, 2012), the complainant requested $250,000 in non-pecuniary compensatory damages for one act of retaliation by his supervisor. The complainant asserted in his affidavit that his supervisor's conduct was humiliating, threatening, abusive, stressful, demeaning, and caused him anxiety, emotional distress, and physical pain. He asserted that the action caused him mental anguish and loss of enjoyment of life.
Beyond his affidavit, the complainant in Minor did not provide any other objective evidence to help support these claims. The Commission found an award of $1,500 for non-pecuniary compensatory damages to be appropriate. It determined that this award was consistent with previous retaliation cases in which the complainants either provided little evidence linking the alleged emotional distress to the discrimination or provided limited and non-descriptive testimony concerning emotional pain.
In contrast, the Commission increased an EEOC Administrative Judge's award of $12,000 in non-pecuniary damages to $75,000 in Regist v. Dep't of Veterans Affairs, EEOC Appeal No. 0120093445 (Feb. 4, 2010). There, the complainant' supervisor emailed a superior: "I also want you to understand that [the complainant] continues to file EEO complaints on harassment in the workplace." The complainant testified that his supervisor's treatment was humiliating and embarrassing. He could not sleep, saw a psychiatrist about a dozen times, and started taking blood pressure medication due to high blood pressure. The AJ awarded $12,000 in non-pecuniary damages for a year's worth of stress, inability to sleep, continual worry, and a deep sense of humiliation.
Upon review, the Commission found that the complainant in Regist was entitled to $75,000 in non-pecuniary compensatory damages. In addition to the AJ's findings that the complainant was subjected to months of constant humiliation, felt unwanted and rejected, his blood pressure rose requiring medication, he had trouble sleeping, and he received psychiatric counseling, the Commission found that the supervisor enclosed the complainant in a small office space with no ventilation or windows for about two months, which made him claustrophobic. The supervisor further embarrassed the complainant when he was publicly ordered him to remove his chaplain's shirt and collar. The Commission also found the supervisor had damaged the complainant's professional reputation by reporting in an email that the complainant continued threatening reprisals.
We determine that this case is more similar to Minor than to Regist, due to the lack of other objective evidence to show that Complainant suffered sustained and significant harm from a particular incident of retaliation. Unlike the complainant in Regist, Complainant has not presented sufficient evidence that he suffered medical ailments as a direct result of the retaliatory act, that he saw a psychiatrist throughout this ordeal, or that he suffered permanent or long-lasting harm to his professional reputation among his peers, since it appears he remained co-chair of a prominent Advisory Council and subsequently went on a detail assignment elsewhere. Therefore, we find insufficient evidence in the record to warrant increasing the amount of non-pecuniary compensatory damages beyond the $15,000 awarded by the Agency.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision, awarding, in relevant part, $15,000 in non-pecuniary compensatory damages.
ORDER
1. If the Agency has not already done so, within sixty (60) calendar days of the date this decision becomes final, pay Complainant $15,000.00 in non-pecuniary compensatory damages.
The Agency must submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation that the 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.
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 (S0610)
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 (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
___7/11/12_______________
Date
1 The Commission also ordered the Agency to provide 8 hours of EEO training to the responsible management officials; consider taking disciplinary action against the agency officials; post copies of an attached notice; and award attorney's fees. Complainant does not challenge any of the Agency's actions regarding these other orders.
2 The Commission applies the principle that "a tortfeasor takes its victims as it finds them." See Wallis v. U.S. Postal Serv., EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Mach, Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). But there are two exceptions. First, when a complainant has a preexisting condition, the Agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if the complainant's preexisting condition inevitably would have worsened, the Agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof is on the Agency to establish the extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay v. U.S. Postal Serv., EEOC Appeal No. 01942985 (Apr. 29, 1997). Therefore, a complainant is entitled to recover damages only for injury, or additional injury, caused by the discrimination. See Terrell v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 01961030 (Oct. 25, 1996); EEOC Notice No. N 915.002 at 12.
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0120100118
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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