01A23506
08-07-2003
Tommy R. Stewart, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Tommy R. Stewart v. Department of Veterans Affairs
01A23506
August 7, 2003
.
Tommy R. Stewart,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23506
Agency No. 200L-2149
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleged that the agency had discriminated against him:
on the basis of age (September 11, 1939) when on December 22, 2000,
management did not select him for the position of Supervisory Hospital
Housekeeping Officer, and
on the basis of reprisal (EEO activity related to claim (1)) when on
April 17, 2001, management told complainant that he would not lead the
plan of action for improvement of the Environmental Management Service.
Complainant alleged that the agency's actions were in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The agency investigated the complaint. Following the
investigation, complainant requested an immediate final agency decision.
The agency issued its decision finding that complainant established
that he was discriminated against as alleged. As part of the decision's
order, a supplemental investigation was conducted in order to determine to
what extent complainant incurred any pecuniary and non-pecuniary losses.
Following the investigation, the agency issued its final decision (FAD)
at issue in this appeal. Complainant requested $1,633 in pecuniary losses
which the agency approved. As for non-pecuniary losses, complainant
sought $300,000. The agency found the request to be excessive and ordered
$5,000 based on the nature and severity of harm, the duration of the harm,
and the amount of damage awards in similar cases.
It is from this decision complainant appeals without comment. The agency
argues that complainant is not entitled to compensatory damages based
on his claims of discrimination in violation of the ADEA.
Initially, we must clarify that complainant's claim of reprisal is not
raised under Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The reprisal claim is based upon his
EEO activity as it related to claim (1) which alleged a violation of the
ADEA. The ADEA, like Title VII, prohibits retaliation for participating
in the EEO process and for opposing employment discrimination. Therefore,
in claim (2), complainant is claiming discrimination, not based on age,
but based on reprisal arising from protected activity under the ADEA.
We note that the Commission has previously determined that compensatory
damages are not available in federal sector complaints brought under the
ADEA, and therefore this remedy is not available to complainant in the
administrative process. Taylor v. Department of the Army, EEOC Request
No. 05930633 (January 14, 1994); Patterson v. Department of Agriculture,
EEOC Request No. 05940079 (October 21, 1994). Further, the Commission
has also found that compensatory damages are not available for reprisal
claims arising solely out of prior EEO activity related to the ADEA.
Falks v. Department of Treasury, EEOC Request No. 05960250 (September
5, 1996). Accordingly, we find that complainant is not entitled to
compensatory damages.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to reverse the agency's final decision
and deny complainant's request for compensatory damages.
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 7, 2003
__________________
Date
1 Complainant is still entitled to equitable relief such as back pay.