07A30056
09-03-2003
Samuel M. Truell, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Samuel M. Truell v. Department of the Army
07A30056
September 3, 2003
.
Samuel M. Truell,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 07A30056
Agency No. BODVF097H0140
Hearing No. 110988288
DECISION
Following its January 2, 2003 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection
of the EEOC Administrative Judge's (AJ) order to pay the complainant
compensatory damages in the amount of $95,000.00. For the following
reasons, the Commission affirms the AJ compensatory damages determination
and reverses the agency's final order.
Complainant, a Deputy EO Advisor employed at the agency's U.S. Army
Reserve Command at Fort McPherson, Georgia facility, filed a formal EEO
complaint with the agency on July 1, 1997. He alleged that the agency
had discriminated against him on the bases of race (African-American)
and disability (mobility impairment) based on the agency's March 1997
failure to allow the complainant to compete for a GS-13 position for which
he was qualified. The AJ ruled in complainant's favor. The agency's final
order rejected the AJ's decision. On May 8, 2002, the Commission issued
a decision upholding the AJ's decision finding racial discrimination.
The Commission remanded the issue of compensatory damages to the hearings
unit. Following a hearing, the AJ determined that the complainant was
entitled to an award of $95,000. The agency disagreed with the AJ's
determination and filed this appeal. In its appeal, the agency argues
that the AJ erred by basing his ruling on a finding of constructive
removal, which the agency asserts was not raised by the complainant.
The complainant responds that the award is both appropriate and consistent
with the applicable case law.
The matter before us is a nonselection, and not constructive removal,
as the agency contends on appeal. Although the AJ mentioned that the
agency's actions led to the complainant's early retirement, we do not
construe this to mean that the AJ was basing the compensatory damages
determination on that conclusion. The decision awarding compensatory
damages is supported by the evidence. The record shows that the
complainant was a productive, well-adjusted individual prior to the
nonselection, but he lost interest in life after the discrimination. The
record specifically shows that the complainant suffered a loss of self
esteem, depression, grief, anguish, embarrassment, anger, stress, weight
loss, sleeplessness, withdrawal from friends, co-workers and family and a
general loss of enjoyment in life. Although his medical records pertain
primarily to back surgery, the sparse medical record further confirms
that he was suffering from workplace stress.
After a careful review of the record, we discern no basis to disturb the
AJ's findings. The evidentiary support for the non-pecuniary damages award
and the findings of fact are supported by the record, and the AJ correctly
applied the appropriate regulations, policies, and laws. Further the AJ's
award is consistent with awards made in similar cases. See, Hartley v.
Department of Agriculture, EEOC Request 05990563 (December 27, 2002)
($85,000 awarded for emotional and physical problems, including loss of
self-esteem, worry and stress) citing Bahaudin v. Department of the Army,
EEOC Appeal No. 01993594 (September 13, 2000) ($85,000 awarded where
complainant produced evidence that the agency's discriminatory actions
caused him to, among other things, become distant and wake up at night,
and not eat); and Bernard v. Department of Veterans Affairs, EEOC Appeal
No. 01966861 (July 17, 1998) ($80,000 where complainant, through his
own testimony and testimony of friends and family, presented evidence
that he experienced depression, and insomnia); and Finlay v. USPS,
EEOC Appeal No. 01942985 (April 29, 1997) ($100,000 for depression).
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 and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall pay the complainant $95,000 in compensatory
damages. The failure to pay the compensatory damages will be viewed
as noncompliance with an Order of this Commission. In addition, the
complainant may petition for enforcement. The petition for enforcement
must be filed with the Compliance Officer, at the address referenced
in the statement entitled "Implementation of the Commission's Decision."
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall pay to the complainant attorney's fees and
costs incurred in the prosecution of his complaint and the recovery of
the compensatory damages award ordered by the AJ, as well as evidence
that all ordered corrective action has been implemented. In addition,
complainant, through counsel, if any, shall submit a request for
attorney's fee and cost association with this appeal, in accordance with
the Attorney's Fees paragraph set forth below. No later than sixty (60)
calendar days after the agency's receipt of the attorney's fees and costs
petition, the agency shall issue a final agency decision addressing
the issues of attorney's fees and costs incurred by complainant in
connection with this appeal. The agency shall submit a copy of the
final decision to the Compliance Officer, as referenced below.
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 that the
corrective action has been implemented.
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.
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.
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
September 3, 2003
__________________
Date