01a04204
03-30-2001
Thomas Parnofiello, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Thomas Parnofiello v. Department of Justice
01A04204
March 30, 2001
.
Thomas Parnofiello,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A04204
Agency No. I936339
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his claim for compensatory damages following a finding that
he had been discriminated against in violation of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791, et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly determined
that complainant was entitled to an award of compensatory damages in
the amount of $2,000.00.
BACKGROUND
Complainant was a GS-11 Senior Border Patrol Agent with the agency's
Immigration and Naturalization Service, Miami Area Border Patrol
Station in Pembroke Pines, Florida. Complainant suffered from Brain
Stem Atrophy, a degenerative nerve disease. In March 1992, the agency
announced a vacancy for an I/V Seizure Officer position. In July
1992, the Selecting Official (SO) chose the Selectee for the position
at issue over complainant. Complainant asserted that the SO should
have selected him because he was more than qualified for the position.
Complainant filed his formal complaint alleging discrimination based on
the non-selection as well as two other claims.
The agency accepted the complaint for investigation and, when complainant
requested a final agency decision (FAD), the agency issued one finding
no discrimination on all claims. Complainant appealed the FAD to
the Commission. In Thomas Parnofiello v. Department of Justice, EEOC
Appeal No. 01966451 (June 30, 1999), the Commission found that the agency
discriminated against complainant with respect to his non-selection for
the position of I/V Seizure Officer but also found that the agency did not
discriminate against complainant on the remaining claims. Specifically,
the previous decision found that the agency's articulated reason for
not selecting complainant was pretext for discrimination based on his
disability and ordered remedial action. The Commission ordered the
agency to conduct a supplemental investigation regarding complainant's
claim for compensatory damages.
On October 6, 1999, the agency informed complainant that in order to
determine the amount of compensatory damages due, he should provide
evidence of alleged damages. On November 18, 1999, complainant submitted
a claim for compensatory damages in the amount of $3,125.00 in pecuniary
damages and $300,000.00 in non-pecuniary damages resulting from the
disability discrimination. In his statement, complainant noted that
when the vacancy announcement was made, he felt as if that was his
chance to remain with the agency. After the incident in question,
complainant stated �I stopped using my cane against doctor's orders
because of all the harassment that was being applied on me.� Complainant
contends that this was the reason he slipped and fell in July 1993, which
resulted in an injury to his back and neck. At that point, complainant
resigned from the agency and moved away from his family and friends.
Complainant also contends that he began feeling depressed and isolated
which lowered his self esteem. He states that he has gone through so
much humiliation because he wanted to remain as a Border Patrol agent.
Complainant provided additional statements from witnesses who described
the deterioration of complainant's emotional state. Complainant also
included evidence regarding his psychiatric treatment. Complainant's
psychiatrist noted that he gets frustrated over the fact that he no
longer works for the agency. Complainant requested reimbursement in
the amount of $3,125.00 for visits to his psychiatrist.<1>
The agency issued its final decision (FAD) on May 3, 2000. In it,
the agency determined that complainant is not entitled to any pecuniary
damages he requested. In particular, the agency found that complainant
failed to show a causal connection between the losses he suffered and
the agency's failure to select him for the I/V Seizure Officer position.
The agency concluded that complainant's losses stemmed from additional
factors including the injury he sustained after a slip and fall on
the job on July 21, 1993, and his decision to leave the agency on
July 23, 1993. The agency found that complainant began seeing the
psychiatrist because of his departure from the agency and not because
of the I/V Seizure Officer position. As to complainant's claim for
non-pecuniary losses, the agency found that complainant provided
sufficient evidence to show that he suffered some emotional distress
because of the agency's discriminatory action. The agency, however,
noted that most of complainant's evidence indicated that his injuries
and depression also stemmed from other incidents such as his injury, his
departure from the agency, and the Vietnam War. Based on the agency's
review of the complainant's evidence, the agency found that complainant
was entitled to some non-pecuniary damages. The agency compared prior
Commission decisions on compensatory damages to the evidence provided by
complainant as to the nature and severity of the discrimination suffered
as well as the symptoms experienced by complainant. Based upon the
facts of the case at hand and prior decisions by the Commission, the
agency found that $2,000 was the appropriate award for non-pecuniary
damages in this matter. From this FAD, complainant appeals.
On appeal, complainant contends that the agency has failed to comply
with the previous decision in refusing to compute back pay, pay his
medical expenses, and compute compensatory damages in good faith.<2>
The agency notes that complainant failed to present any new evidence to
substantiate his appeal and asks the Commission to affirm its decision.
ANALYSIS AND FINDINGS
Legal Standards for an Award of Compensatory Damages
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).
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.
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. Contrary to the assertion
of the agency in this case, however, a complainant is not required to
submit evidence from �a certified medical practitioner recognized by
the agency� in order to establish entitlement to compensatory damages.
The Commission applies the principle that �a tortfeasor takes its victims
as it finds them.� Wallis v. United States Postal Serv., EEOC Appeal
No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button
Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). The Commission also
applies two exceptions to this general rule. First, when a complainant
has a pre-existing condition, the agency is liable only for the
additional harm or aggravation caused by the discrimination. Second, if
the complainant's pre-existing 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 being 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. United States
Postal Serv., EEOC Appeal No. 01942985 (April 29, 1997). The Commission
notes, however, that complainant is entitled to recover damages only
for injury, or additional injury, caused by the discriminatory act.
Terrell v. Department of Housing and Urban Development, EEOC Appeal
No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002 at 12.
Nexus Between Alleged Harm and Discrimination
After careful consideration of all the evidence of record, the Commission
finds that the agency correctly determined that complainant established
a nexus between the alleged harm and the discrimination for his claim of
non-pecuniary damage. The record indicates that complainant suffered
emotional harm pursuant to the agency's decision not to select him for
the I/V Seizure Officer position. In his statement, complainant contends
that he felt that the position at issue was his chance to remain at
the agency. He had previously been detailed to the position for four
months and was never notified of any problems or any wrong doings.
One of the complainant's daughters also noted in her statement that her
father was denied a promotion at work and it related to him becoming
emotionally despondent. Accordingly, the Commission finds that the
agency properly determined that complainant established a nexus between
the alleged harm and the discrimination and therefore, is entitled to
an award of non-pecuniary damages.
As to complainant's claim of past pecuniary damage, the Commission
finds that the agency properly determined that complainant failed to
establish a nexus between his alleged pecuniary losses to the agency's
discriminatory action. The record indicates that complainant has
been under the care of his psychiatrist since September 1995, over
three years after the discriminatory incident. In complainant's own
statement, he discusses the problems he has had with his self esteem,
severe depression, and isolation since he left the agency on July
23, 1993. He also noted that he was hospitalized in July 1998 and he
caught a severe case of malaria while serving in Vietnam. Further,
the psychiatrist's noted that complainant is being treated for severe
depression and anxiety and indicated that his feelings of frustration
were due to in part to the fact that he was no longer with the agency.
The Commission concludes that the psychiatrist's statements do not
refer to the agency's discriminatory action. The statements provided
by complainant's witnesses, instead, point to his departure from the
agency and a myriad of other events outside of the discriminatory action
which have resulted his mental condition. Upon review of the record,
we find that complainant has indicated that he suffers from severe
medical problems, but he has failed to establish a nexus between his
depression and the agency's failure to select him for the I/V Seizure
Officer position. Accordingly, the Commission concludes that complainant
is not entitled to any award of pecuniary damages.
Non-pecuniary Damages
As to the award of compensatory damages, complainant requested $300,000.00
in non-pecuniary damages. After careful consideration of all the
evidence of the record, it is the decision of the Commission that, given
Commission awards in similar cases, complainant's request for $300,000.00
in non-pecuniary damages is excessive. Taking into account the evidence
of non-pecuniary damages submitted by complainant, the Commission finds
that the agency appropriately determined that complainant is entitled
to non-pecuniary damages in the amount of $2,000.00. This amount takes
into account the severity and duration of the harm done to complainant
by the agency's failure to select him from the I/V Seizure Officer
position. Finally, this amount 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 Weatherspoon v. Department of Agriculture, EEOC Appeal No. 01966395
(March 4, 1999) (awarding complainant $1,000.00 in non-pecuniary
damages in a non-promotion case where complainant indicated that she
experienced anguish, humiliation, and torment based upon the incident);
see also Harris v. Department of Agriculture EEOC Appeal No. 01966746
(December 11, 1998) (awarding $2,000.00 in non-pecuniary damages where
complainant indicated that the agency's discriminatory action resulted
in low self-esteem and depression).
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal and the agency's response, the Commission affirms the
agency's final decision to award complainant $2,000.00 in compensatory
damages.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 30, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant included a ledger for visits from September 28, 1995 through
November 11, 1999.
2 The Commission will limit its discussion to the issue of compensatory
damages. Complainant's claim that the agency has refused to compute back
pay was the subject matter of EEOC Petition No. 04A00021 (February 13,
2001).