0120070384
06-19-2009
Agency.
Lamont T. Rowan,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070384
Agency No. 200L06032003103403
DECISION
The Commission accepts complainant's October 23, 2006 appeal, pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
MODIFIES the agency's October 12, 2006 final decision.
ISSUE PRESENTED
Whether the agency erred in its determination that complainant was not
entitled to any compensatory damages.
BACKGROUND
This is the second appeal in this case. In its previous decision, the
Commission found that the agency discriminated against complainant on
the basis of sex when he was redirected from his regular duties as a
Motor Vehicle Operator to pull weeds on facility grounds on at least
six occasions. Lamont T. Rowan v. Department of Veterans Affairs,
EEOC Appeal No. 01A45684 (December 16, 2005), req. for recon. den.,
EEOC Request No. 05A60365 (March 21, 2006). The Commission's order of
relief directed the agency, inter alia, to process complainant's request
for compensatory damages.
The agency conducted a supplemental investigation regarding complainant's
entitlement to compensatory damages. Complainant initially sought the
maximum amount of compensatory damages, but later specified that he was
seeking $175,000 in non-pecuniary damages. In addition, complainant
requested $700 for the cost of his psychologist and $300 for the costs
of medications as past pecuniary damages. For future losses, complainant
claimed $28,800 in future pecuniary damages. This amount included $7,000
per year in therapy.
Complainant offered evidence that as a result of the agency's conduct, he
was stressed, irritable, unable to sleep, had nightmares of being fired,
and was made to feel worthless. Complainant's request was supported by
affidavits from two doctors, his supervisor, his brother, his mother,
and himself. The record contains statements from a doctor who stated his
opinion that complainant's emotional dysfunction began around the time of
his employment at the VA hospital. The record also includes statements
regarding the cost of therapy and some documentation that complainant
would benefit from such treatment. A second doctor similarly stated
that complainant was suffering from stress coming from his employment.
The affidavit of complainant's supervisor (Exhibit C, dated May 22,
2006) stated that complainant confided about the treatment he was
receiving, his inability to sleep, and his nightmares of being fired.
The report of one of the two doctors stated that complainant had developed
multiple physical problems, including insomnia, headaches, nightmares,
concentration difficulties, and depressive disorder. Complainant stated
that the weed-pulling incident made him feel like he was "treated like
a slave." The affidavit of complainant's brother stated that complainant
felt that he was made to look worthless. The affidavit of complainant's
mother stated that complainant had lost a good deal of his self-esteem.
AGENY'S DECISION
On October 12, 2006, the agency issued a final decision rejecting
complainant's request for compensatory damages, including future
pecuniary relief. The agency denied that the requested damages were
causally connected to the agency's discriminatory actions, and found
that the documentation submitted by complainant was inadequate to support
his request for damages.
CONTENIONS ON APPEAL
On appeal, complainant argues that the agency erred in refusing to award
damages and that he record is sufficient for the Commission to reverse the
agency's final decision and award him compensatory damages in accordance
with the order of relief set forth in EEOC Request No. 05A60365.
Complainant requests the Commission to award the appropriate relief,
based on the record.
The agency offers no brief in response, and relies on the record.
ANALYSIS AND FINDINGS
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). The law authorizes an award of compensatory
damages for all post-Act pecuniary losses, and for no-pecuniary losses
including, but not limited to, emotional pain, suffering, mental anguish,
loss of enjoyment of life, and loss of health. In this regard, the
Commission has authority to award such damages in the administrative
process. See, e.g., Stokes v. Department of Homeland Security, EEOC
Appeal No. 0120071802 (December 10, 2008). To receive an award of
compensatory damages, a complainant must demonstrate that he or she 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). 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, a 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, EEOC Appeal
No. 01934157. 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. Carle, EEOC Appeal No. 01922369 (January 5, 2993).
Statements from others, including family members, friends, and healthcare
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. Non-pecuniary damages must be limited to
the sums necessary to compensate the injured party for the actual harm
and should take into account the severity of the harm and the length of
time the injured party has suffered from the harm. See, e.g., Coffee
v. Department of Defense, EEOC Appeal No. 0720090012 (March 13, 2009).
Non-pecuniary damages constitute the sums necessary to compensate
an injured party for actual harm, even where the harm is intangible.
Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984).
As noted above, complainant has requested a total of $1,000 for past
pecuniary damages. The amount to be awarded for past pecuniary losses can
be determined by receipts, records, bills, cancelled checks, confirmation
by other individuals, or other proof of actual losses and expenses.
Guidance, at 9. In this case, complainant has asserted entitlement to
$700 for the cost of visits with his psychologist and $300 for the cost
of medications. However, complainant has submitted no documentation
to substantiate this request. While complainant's representative also
asserts complainant's entitlement to these damages, there is no basis in
the record to credit the representative's assertions regarding the amount,
i.e., no showing that he has actual knowledge of the amounts involved.
Accordingly, we find that complainant has not established that he is
entitled to past pecuniary damages.
Complainant has also request $28,800 in future pecuniary damages for
anticipated medical expenses. We find, however, that complainant has
not substantiated his request for these damages. The evidence of record
does not provide a prognosis, or any indication as to the nature of
the treatment complainant will receive or the anticipated duration of
such treatment. In the absence of any substantiating documentation,
we find that complainant has not established that he is entitled to
future pecuniary damages.
We now turn to complainant's request for non-pecuniary relief. We find
that complainant has presented sufficient evidence to establish that
the agency's actions caused him emotional distress, humiliation,
sleeplessness, and loss of self-esteem.
We note the agency's argument that complainant had long-standing,
non-work-related medical issues when the discrimination occurred.
The Commission, however, applies the principle that "a tortfeasor takes
its victim as it finds him." Wallis v. United States Postal Service,
EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson
v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)).
The Commission 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. Unites States, 668 F.2d 98 (2d Cir. 1981)); Finlay
v. United States Postal Service, EEOC Appeal No. 01942985 (April 29,
10907). The Commission notes, however, that a complainant is entitled
to recover damages only for injury, or additional injury, caused by the
discrimination. Terrell v. Department of Housing and Urban Development,
EEOC Appeal No. 01961030 (October 25, 1996); Guidance, at 12.
We find that the discriminatory assignment to pull weeds exacerbated
an already-declining emotional state resulting from matters that, while
work-related, were not a part of the underlying finding of discrimination.
One of complainant's doctors stated that complainant's emotional
dysfunction began around the time complainant began his employment
with the agency. The additional injury that resulted from the agency's
discriminatory actions (directing complainant to pull weeds) included some
amount of complainant's stress, humiliation, anxiety, sleeplessness,
fears of termination, and depression. The agency has not offered
evidence that complainant's condition inevitably would have worsened,
but neither does complainant's evidence establish with any precision
the extent to which his pre-existing condition was exacerbated.
Based upon the foregoing, our review of the record, and Commission
precedent, we find that complainant is entitled to $10,000 in
non-pecuniary damages. An award of $10,000 takes into account, as best
may be discerned, the nature, severity, and duration of complainant's
suffering. This amount also is consistent with other non-pecuniary
compensatory damages awards given in similar cases and is not "monstrously
excessive" standing alone, nor derived from passion or prejudice. See,
e.g., Hedgpeth v. Department of the Interior, EEOC Appeal No. 01A52869
(September 7, 2006) ($10,000 awarded where complainant suffered
post-traumatic stress disorder and anxiety, profound depression with
suicidal tendency, fatigue, inability to sleep, frequent crying, and fear
that she would lose her job, with other contributing factors); Shobert
v. Department of the Air Force, EEOC Appeal No. 01A40981 (August 4, 2005)
($10,000 awarded where complainant experienced emotional distress,
humiliation, and severe anxiety for approximately two years, became
withdrawn, somber, easily angered, and reclusive); Eberly v. United
States Postal Service, EEOC Appeal No. 07A30085 (May 20, 2004) ($10,000
awarded where complainant experienced depression, sleeplessness, anxiety,
low self-esteem, and nightmares, but majority of symptoms were caused
by prior unrelated incident); Caros v. Department of Homeland Security,
EEOC Appeal No. 07A30094 (February 19, 2004)($10,000 awarded where
complainant experienced an exacerbation of physical ailments as well as
low self-esteem, depression, anxiety, and marital strain).
CONCLUSION
For the reasons stated above, the Commission concludes that complainant
is not entitled to past or future pecuniary damages, but is entitled to
an award of $10,000 in non-pecuniary damages. We therefore MODIFY the
agency's final decision with regard to compensatory damages and ORDER
the agency to take corrective action in accordance with this decision
and the Order of the Commission, below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within sixty (60) days of the date on which this decision becomes final,
the agency shall tender to complainant the sum of $10,000 in non-pecuniary
damages.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its Louisville, Kentucky Medical
Center 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 (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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 19, 2009
Date
7
0120070384
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013