01975647
03-20-2000
Ronald Boswell, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Ronald Boswell v. Department of the Air Force
01975647
March 20, 2000
Ronald Boswell, )
Complainant, )
) Appeal No. 01975647
v. )
) Agency No. 5U950001000
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD),
concerning the agency's award of compensatory damages.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405).
BACKGROUND
Complainant, a Maintenance Mechanic Foreman, with the agency's Reese
Air Force Base, Lubbock, Texas, filed a formal complaint on May 3, 1995,
alleging racial discrimination in the selection process for the position
of Maintenance Mechanic Supervisor. The agency accepted the complaint
and conducted an investigation. At the conclusion of the investigation,
complainant requested a hearing before an Equal Employment Opportunity
Commission ("EEOC") Administrative Judge ("AJ"). Following a hearing,
the AJ issued a Recommended Decision (RD) concluding that complainant
was discriminated against during selection for the Maintenance Mechanic
Supervisor position. Specifically, the AJ found that the selecting
official was influenced by a management official with discriminatory
animus toward Blacks. However, because the agency redid the selection
using a board of four individuals not associated with the prior selection,
utilizing objective criteria and eventually selecting the same individual,
the AJ concluded that complainant was not entitled to be placed in the
Maintenance Mechanic Supervisor position. To remedy the discrimination,
the AJ recommended that the agency: (1) revise its selection process
to a merit-based method that would eliminate discriminatory selection
practices; (2) post a notice describing the discrimination and ensuring
against future discrimination; (3) award reasonable attorney's fees;
and (4) award compensatory damages.
In its FAD, the agency adopted the AJ's discrimination finding as to the
selection process for the position. As remedy for the discrimination,
the FAD ordered the agency to offer complainant priority consideration
for the next available position for which he is qualified, to take
corrective action to ensure against future discrimination, and to provide
to complainant a written guarantee against future discrimination or
retaliation. Finally, the FAD provided complainant sixty days to submit
evidence to support compensatory damages. After receiving complainant's
compensatory damages evidence, the agency issued a separate FAD concluding
that based on the evidence presented, complainant was entitled $350.00
in compensatory damages.<2>
On appeal, complainant contends that the agency erred in its compensatory
damages determination and that he provided sufficient evidence to justify
a non-pecuniary award of $300,000. Complainant further contends that
aside from its compensatory damages findings, the agency failed to
provide any of the other equitable relief outlined in the original FAD.
The agency responded by restating the position it took in both of its
FADs and requesting that we affirm both FADs.
ANALYSIS
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-Act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages
do not include back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII. To receive an award of
compensatory damages, a 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. Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994), req. for reconsid. denied, EEOC Request No. 05940927
(December 11, 1995); EEOC's Enforcement Guidance: Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) ("Guidance").
A complainant is required to provide objective evidence that will allow
an agency to assess the merits of his request for damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
A. Pecuniary Damages
Compensatory damages may be awarded for pecuniary losses that are
directly or proximately caused by the agency's discriminatory conduct.
See Guidance at 8. Pecuniary losses are out-of-pocket expenses incurred
as a result of the agency's unlawful action, including job-hunting
expenses, moving expenses, medical expenses, psychiatric expenses,
physical therapy expenses, and other quantifiable out-of-pocket expenses.
Id. Past pecuniary losses are losses incurred prior to the resolution
of a complaint through a finding of discrimination, the issuance of
a full-relief offer, or a voluntary settlement. Id. at 8-9. Future
pecuniary losses are losses that are likely to occur after resolution
of a complaint. Id. at 9.
In this case, other than fees paid to his attorney, complainant has
failed to provide any objective evidence of pecuniary damages. There are
no receipts, records, bills, canceled checks, or other proof of actual
losses and expenses.
B. Non-pecuniary Damages
Non-pecuniary damages constitute the sums necessary to compensate
the injured party for actual harm, even where the harm is intangible.
Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). The
award should take into account the severity and duration of the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995). Non-pecuniary and future pecuniary damages are limited
to an amount of $300,000.00. The Commission notes that for a proper
award of non-pecuniary damages, the amount of the award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F. 2d 827, 848 (7th Cir. 1989)).
Applying the above legal standards, we agree with the agency that
complainant submitted sufficient unrebutted evidence to establish that
he suffered emotional harm as a result of the agency's discrimination.
The record contains several instances where witnesses describe the effect
the discrimination had on complainant's mental and physical health.
Complainant's hearing testimony and statement in support of compensatory
damages indicate that he experienced interference in relationships
with family and friends, suffered increased headaches, and became a
generally rude and unpleasant person. The statements of family and
friends support complainant's claim. We find that this uncontroverted
evidence establishes complainant's entitlement to compensatory damages.
See Sinott v. Department of Defense, EEOC Appeal No. 01952872 (September
19, 1996)(stating that a complainant's own testimony, along with the
circumstances of a particular case, can establish mental or emotional
harm).
While there is no dispute that complainant is entitled to non-pecuniary
damages, the parties differ on the appropriate amount necessary to remedy
the harm caused by the discrimination. Complainant contends that he
should receive $300,000.00 (the statutory maximum monetary award).
The agency offers that $350.00 properly compensates complainant for
any harm caused by the discrimination. We note that the Commission has
awarded compensatory damages in cases somewhat similar to complainant's
case in terms of the harm sustained. Butler v. Department of Agriculture,
EEOC Appeal No. 01971729 (April 15, 1999)($7,500 in non-pecuniary damages
based on complainant's testimony regarding his emotional distress);
Hull v Department of Veteran Affairs, Appeal No. 01951441 (Sept. 18,
1998)($12,000 in non-pecuniary damages based on complainant's testimony of
emotional distress due to retaliatory harassment); Miller v. United States
Postal Service, EEOC Appeal No. 01956109 (January 23, 1998)($7,500.00
in non-pecuniary damages where the complainant produced scant evidence
to support his claim); Benson v. Department of Agriculture, EEOC Appeal
No. 01952854 (June 27, 1996)($5,000.00 in non-pecuniary damages where the
complainant, his relatives, and his colleagues testified regarding the
embarrassment and humiliation suffered as a result of the discrimination).
In the present case, the evidence concerning emotional and physical harm
comes from complainant, his wife, children and friends. After analyzing
the evidence which establishes the physical and emotional discomfort
sustained by complainant and upon consideration of damage awards reached
in comparable cases, the Commission finds that complainant is entitled to
an award of non-pecuniary damages in the amount of $5,000.00. We find
this case analogous to the above-mentioned Benson case with respect to
the evidence of severity and duration of the harm. While the agency
correctly points out that the relevant period of discrimination was from
January 9, 1995 (the date of the discriminatory selection) to April 17,
1995 (the date the independent board selected the original selectee for
the position), we note that the harm suffered by complainant does not
necessarily end once the discrimination ends. The agency is liable for
the actual harm suffered by complainant. See Guidance at 11-12, 14.
In reviewing the evidence, we find that complainant's physical and
emotional harm began in January 1995 and ended the summer of 1995.
We further note that this award meets the goals of not being motivated by
passion or prejudice, not being "monstrously excessive" standing alone,
and being consistent with the amounts awarded in similar cases. See
Cygnar, 865 F.2d at 848.
Insofar as complainant contends that the agency failed to provide the
relief outlined in the initial FAD, the Commission affirms the initial
FAD's finding of discrimination and the relief outlined in the decision.
As a result, we will make the FAD's relief provisions part of the order
in this decision. If the agency fails to comply with our order below,
complainant can file a petition for enforcement to seek redress for
the noncompliance.
CONCLUSION
Accordingly, based on a thorough review of the record, and for the
foregoing reasons, we AFFIRM the FAD which found discrimination. However,
we MODIFY the FAD addressing compensatory damages because it failed to
provide the appropriate amount of non-pecuniary damages.
ORDER (C1092)
To the extent that it has not already done so, the agency is ORDERED to
take the following remedial action:
1. Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to complainant non-pecuniary compensatory
damages in the amount of $5,000.00.
2. The agency shall offer complainant priority consideration for the
next available position for which he is qualified. The Commission has
previously interpreted the phrase "priority consideration" as follows:
"Priority consideration is commonly understood to mean that complainant
must be considered before any formal action to recruit for the vacancy,
and must be give[n] bona fide consideration on her own merit, without
competition with other potential candidates. Priority consideration does
not guarantee selection...." Bishop v. Department of Transportation,
EEOC Request No. 05910148 (Apr. 10, 1991) (citation omitted).
3. The agency shall commit to complainant in writing that it will cease
from engaging in the unlawful employment practices, that it will not
engage in similar unlawful employment practices, that it will provide
complainant a work place free from hostility, offensive conduct and
abuse, and that it will take no reprisal against complainant for filing
and pursuing this or any other EEO action.
4. The agency is directed to conduct EEO training for the management
staff at the Air Force Base. The agency shall address these employees'
responsibilities with respect to eliminating discrimination in the
workplace and all other supervisory and managerial responsibilities
under equal employment opportunity law.
5. 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 must include evidence that the corrective action
has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Reese Air Force Base 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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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:
March 20, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2 In support of his compensatory damages claim, complainant submitted
excerpts from his testimony at the hearing, a personal statement, and
statements from his wife, three children and two friends. Complainant
stated that due to the discrimination, he suffered interference in
relationships with family and friends, experienced increased headaches,
and became a generally rude and unpleasant person. Complainant's wife
stated that the discrimination caused deterioration to their marital
relationship and caused her husband to suffer headaches. Complainant's
children stated that during the summer of 1995, their father appeared
uncharacteristically stressed and irritable. Finally, complainant's
friends stated that during 1995, complainant became a very stressed and
irritable person.