01a40981
08-04-2005
Roy A. Shobert, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Roy A. Shobert v. Department of the Air Force
01A40981
August 4, 2005
.
Roy A. Shobert,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A40981
Agency No. 9V1M97334
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision awarding complainant the sum
of $2,000 in non-pecuniary compensatory damages following a decision by
the Equal Employment Opportunity Commission finding that the agency had
engaged in unlawful employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. For the following reasons, the Commission
modifies the agency's final decision on compensatory damages.
The record reveals that complainant filed a formal EEO complaint
in August 1997 alleging that he was discriminated on the basis of
disability and in reprisal for prior EEO activity when he was not
returned to full duty status until January 1998. The Commission found
no discrimination on the basis of reprisal but found complainant had
been subjected to disability discrimination when the agency regarded
complainant as having a substantially limiting impairment, placed him
on light duty for nearly nine months, and issued complainant a notice
proposing to place him on enforced leave for an indefinite period
due to his inability to perform the essential duties of his position.
Shobert v. Department of the Air Force, EEOC Appeal No. 01991157 (August
28, 2002). The Commission ordered, in pertinent part, that the agency
conduct a supplementary investigation regarding complainant's entitlement
to compensatory damages. Id.
The agency's compensatory damages decision found complainant was not
entitled to pecuniary compensatory damages and further noted that
complainant did not request pecuniary damages. The agency awarded
complainant $2,000 in non-pecuniary damages. On appeal, complainant
contests the agency's non-pecuniary damages award.
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 EEOC
Notice No. N 915.002, Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (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. Guidance 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.
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.
In the instant case, complainant submitted a declaration indicating that,
as a result of the agency's discriminatory conduct, he suffered from
emotional distress, humiliation and severe anxiety from April 1997 up
to and beyond January 1998. Complainant also submitted documentation
from his doctor indicating that complainant was to attend two to
three psychotherapy sessions, and reporting that complainant suffered
from multiple symptoms, including suffering from job distress, feeling
anxious or tense, being sad or discouraged, having difficulty sleeping,
feeling hopeless, losing his appetite, feeling quick to anger, worrying
without reason, and having disturbing thoughts. Complainant's friend
submitted a statement which stated that complainant had changed during
the period in question, noting that complainant seemed more withdrawn,
somber, and easily angered. Complainant's mother submitted a statement
noting that he had become unhappy at work and reclusive at home.
After a careful review of the record, we concur with the agency's finding
that complainant failed to demonstrate that he was entitled to pecuniary
damages. We note that complainant did not request pecuniary damages.
With respect to non-pecuniary damages, we find that the agency's award
of non-pecuniary damages is not consistent with the amounts awarded in
similar cases, given the level of harm experienced by complainant.
In determining compensatory damages, the Commission strives to make
damage awards for emotional harm consistent with awards in similar cases.
A number of Commission decisions have awarded non-pecuniary damages in
cases which we compare to complainant's. Bradley v. United States Postal
Service, EEOC Appeal No. 01A22995 (April 23, 2003) (awarding $10,000
in non-pecuniary damages based on stress and emotional harm resulting
from the agency's disability discrimination); Howard v. Department of
Defense, EEOC Appeal No. 07A10098 (September 30, 2002) (awarding $10,000
in non-pecuniary damages based on complainant's testimony that her
professional reputation was harmed, that she was physically and socially
isolated from her co-workers, and that she suffered humiliation and
emotional distress due to the agency's discriminatory conduct); Rountree
v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995)
(awarding $8,000 in non-pecuniary damages where complainant suffered
from emotional distress, but the majority of complainant's emotional
problems were caused by factors other than the discrimination).
As such, the Commission awards non-pecuniary compensatory damages in the
amount of $10,000 since the record shows that complainant experienced
emotional distress, anxiety, embarrassment, and adverse effects on his
social life for nearly nine months as a result of the agency's disability
discrimination. This amount is adequate to compensate complainant for
the harm shown to be causally related to the discriminatory conduct.
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. See Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989); US EEOC v. AIC
Security Investigations, Ltd., 823 F.Supp. 573, 574 (N.D. Ill. 1993);
Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November
13, 1995).
Therefore, based upon our review of the record, the Commission modifies
the agency's final decision. The agency is directed to take remedial
action in accordance with this decision and the Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days of the date this decision becomes final, the
agency shall pay complainant $10,000 in non-pecuniary compensatory
damages less any amounts already paid.
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 4, 2005
__________________
Date