01990136
06-11-1999
Antonio Vereb, Appellant, v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Antonio Vereb v. Department of Justice
01990136
June 11, 1999
Antonio Vereb, )
Appellant, )
)
v. ) Appeal No. 01990136
)
Janet Reno, )
Attorney General, )
Department of Justice )
(Immigration and Naturalization )
Service), )
Agency. )
)
DECISION
INTRODUCTION
On January 7, 1998, Antonio Vereb (hereinafter referred to as appellant)
filed an appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the agency's December 3, 1997,
final decision. The record does not indicate when appellant received
the agency's decision. Accordingly, the appeal is timely filed (see
29 C.F.R. �1614.402(a)) and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue presented in this appeal is whether the agency properly
determined the amount of compensatory damages due to appellant.
BACKGROUND
In Vereb v. Janet Reno, Attorney General, Department of Justice
(Immigration and Naturalization Service), EEOC Appeal No. 01945011
(January 26, 1996), the Commission found that the agency discriminated
against petitioner on the basis of sex when it did not select him as a
new hire for the position of Immigration Inspector, GS-5/7, on April 10,
1992.<1> The Commission ordered, inter alia, that the agency "conduct a
supplemental investigation...to determine whether appellant is entitled
to compensatory damages for mental anguish."<2> Order, Paragraph C.
On February 29, 1996, appellant submitted a claim for compensatory
damages, seeking $300,000.00, plus actual expenses. In a letter
dated May 14, 1996, the Immigration and Naturalization Service (INS)
denied appellant's claim for compensatory damages, and appellant was
given a right of appeal to the agency's Complaint Adjudication Office.
On December 3, 1997, the agency issued a decision and found that appellant
was entitled to compensatory damages in the amount of $1,000.00.
Appellant's Submissions
Appellant sought reimbursement for transportation and medication as
well as compensatory damages for mental distress. His submission in
support consisted of his attorney's letter, his statement, a report
from a psychiatrist, and letters from six friends and associates.<3>
His claim provided the following information:
1. In his covering letter, appellant's attorney stated that appellant
claimed monetary reimbursement for:
� 22 trips to a Department of Veterans Affairs (VA) clinic in McAllen,
Texas, $818.40 (120 miles per trip at $.31 per mile);
� two trips to the VA hospital in San Antonio, Texas, for "stress tests
for the related chest pains," $434.00 (700 miles per trip at $.31 per
mile) and $120.00 ($60.00 per night) for lodging and meals;
� "time away from other endeavors" (unspecified); and
� medication for 46 months, $3,726.00 (average of $81.00 per month).
No further information or documentation was provided, e.g., dates of
events, appellant's receipts for gas, lodging and meals; reasons or
justification for travel; receipts for medication; or an explanation
of what "other endeavors" appellant pursued or would have pursued.
Also, while the attorney states that "some expenses [were] covered by
third parties," he does not provide further information on appellant's
reimbursement of costs.
2. In his letter dated February 28, 1996, appellant described his previous
employment with the agency.<4> He stated that at the time of the 1990
RIF, he was offered a GS-5 position but believed that he should have been
offered a GS-7 position as were less qualified employees, and because he
did not receive a higher grade, he ended his employment with the agency.
He stated that this treatment by the agency "started to give me emotional
problems," and he began to see a VA psychiatrist after the 1990 RIF.
He stated that he has been "under psychotherapy and medication ever
since" and that his "symptoms got progressively worse each time I was
not selected for a position with INS."
With regard to the April 1992 nonselection, he stated that his symptoms
worsened when he read the investigation report wherein the selecting
official stated that appellant was on an "ego thing" and that the
selectee had more potential. Also, appellant stated that he suffered
"another set back to my emotional and physical health" when the EEO
counselor allegedly urged him not to file a complaint. He also stated
that "it troubled [him] greatly" and he felt "emotionally distressed"
that the agency's investigation did not examine what he believed was
collusion among agency officials to discriminate against him.
Appellant described his symptoms as "depression, anxiety, panic
attacks, bouts of crying in front of my wife, immediate supervisor,
and psychiatrist" as well as severe chest pains. Also, he stated that
he worried a lot about his ability to perform in a job and continued to
be concerned that the agency had never taken disciplinary action against
those involved in the selection. In addition, he said that he stopped
working on his house, which had been a favorite hobby. No dates or time
periods were given nor was any association made between these symptoms
and the April 1992 event.
3. In a one-page, handwritten report dated February 16, 1996,
a VA psychiatrist stated that appellant had been a patient at the
outpatient clinic since 1990, with visits every three to six months.
The psychiatrist's report noted that appellant's initial complaints began
"after he found himself unemployed from the INS [in 1990]," consisted
of "depression, insomnia, anxiety, and chest pains," and that these
symptoms have remained "constant." The VA clinic diagnosed appellant as
suffering from "dysthimia with anxiety and panic attacks disorder" and
prescribed medication. The report concluded that appellant's thoughts are
"centered around how his separation from his INS job affected his life."
The April 1992 event was not mentioned.
4. Appellant submitted six brief statements from friends and associates
written in February 1996. In general, these statements reported that
appellant experienced mental and physical difficulties following his
separation from the agency in 1990, wherein he believed he had been
treated unjustly and for which he began professional counseling. Most of
the statements, however, failed to connect his depressed condition to
the April 1992 nonselection. Only one statement specifically referred to
appellant's nonselection for the position of Immigration Inspector, but
that individual did not know appellant in 1992 and relied on appellant's
ascription of his depressed condition to that event.
The Agency's Decision
The agency first considered appellant's claim for $5,098.40 in past
pecuniary damages for travel, lodging, and medications. The agency
denied appellant's request because he failed to submit documentation
in support and to establish causation. Specifically, the agency noted
that appellant did not present documents establishing his expenditures.
Moreover, because the psychiatrist's report did not demonstrate a causal
nexus to the April 1992 nonselection, travel to the VA clinic was not
supported. Finally, the agency found that no information or documents
justified or explained travel to San Antonio.
Next, the agency examined appellant's claim for nonpecuniary damages.
In considering this claim, the agency compared appellant's submission
and the demonstrated extent, nature, and severity of the harm alleged
therein to other cases decided by the Commission and the Courts where
awards of nonpecuniary compensatory damages were made. Based on its
review, the agency concluded that, at best, appellant's evidence
established entitlement to no more than a modest award, in that,
appellant's statement showed that he suffered some mental distress.
The agency concluded, however, that appellant failed to clearly establish
the underlying causation and that it could not distinguish the harm
appellant suffered as a result of the April 1992 discrimination from
the effects of the 1990 RIF. Asserting that it was responsible only
for the mental distress caused by its discriminatory actions, i.e.,
the 1992 nonselection, the agency found that the nonselection was only
a contributing factor to his overall mental condition and awarded him
$1,000.00 in nonpecuniary compensatory damages. The agency rejected
any obligation for appellant's mental distress due to the 1990 RIF or
for distress due to his participation in the EEO process.
In his appeal brief, appellant argues that the 1990 RIF, which he
perceived as "inequitable and also discriminatory," was the "start of his
feelings of anxiety and depression which led him to seek [psychiatric]
treatment." Further, appellant contends that when he applied and was
not selected for other positions with the agency, "he perceived that
there was discrimination which depressed him even further" and that the
agency's discrimination continues "even through today by the withdrawal
of the offer of employment."<5>
ANALYSIS AND FINDINGS
Legal Standard for Award of Compensatory Damages
The Civil Rights Act of 1991 (CRA) authorizes awards of compensatory
damages as relief for intentional discrimination in violation of Title
VII. 42 U.S.C. �1981a. The Commission has held that compensatory damages
are recoverable in the administrative process. See Jackson v. USPS,
EEOC Appeal No. 01923399 (November 12, 1992), req. to recon. den.,
EEOC Request No. 05930306 (February 1, 1993); Turner v. Department of
the Interior, EEOC Appeal No. 01956390 (April 28, 1998). See generally,
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. N915.002 (July 14, 1992) (Notice).
In claiming an award of compensatory damages, a complainant must
demonstrate through appropriate evidence and documentation that he has
been harmed as a result of the agency's discriminatory action; the extent,
nature, and severity of the harm that he suffered; and the duration or
expected duration of the harm. Rivera v. Department of the Navy, EEOC
Appeal No. 01934156 (July 22, 1994), req. to recon. den., EEOC Request
No. 05940927 (December 11, 1995); Notice at 11-12, 14; see also, Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
For claims seeking pecuniary damages, such objective evidence should
include documentation showing actual, out-of-pocket expenses for
all actual costs and an explanation of the expense, e.g., medical
and psychological billings, other costs associated with the injury
caused by the agency's actions, and an explanation for the expenditure.
Notice at 9. Examples of evidence in support of a claim for nonpecuniary
damages include statements from the complainant, from others, including
family members and co-workers, and from medical professionals. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
The absence of supporting evidence may affect the amount of damages
deemed appropriate. See Lawrence v. USPS, EEOC Appeal No. 01952288
(April 18, 1996).
Compensatory damage awards are limited to the sums necessary to
compensate a complainant for the actual harm suffered as a result
of the agency's discriminatory act. See Carter v. Duncan-Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Notice at 13. The agency is only
responsible for those damages that are clearly shown to be caused by the
agency's discriminatory conduct. Carle v. Department of the Navy, supra;
Fazekas v. USPS, EEOC Appeal No. 01954627 (April 7, 1997). An award of
compensatory damages for non-pecuniary losses, including emotional harm,
should reflect the extent to which the agency's discriminatory action
directly or proximately caused the harm and the extent to which other
factors also caused the harm. See Johnson v. Department of Interior,
EEOC Appeal No. 01961812 (June 18, 1998). Also, the amount of an award
should not be "monstrously excessive" standing alone, should not be
the product of passion or prejudice, and should be consistent with
the amount awarded in similar cases. See Cygnar v. City of Chicago,
865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations,
Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).
Finally, the Commission has held that a complainant may not recover
compensatory damages for stress associated with prosecution of an
EEO complaint. Rountree v. Department of Agriculture, EEOC Appeal
No. 01941906 (July 7, 1995), affirmed, EEOC Request No. 05950919 (February
15, 1996). Accordingly, an award of damages must be adjusted to reflect
the extent to which the injury was caused by the agency's action and the
harm experienced in pursuit of EEO complaints. Olsen v. Department of
Defense, EEOC Appeal No. 01956675 (July 29, 1998).
Appellant's Claim for Pecuniary Compensatory Damages
Through his attorney, appellant has claimed out-of-pocket monetary
expenses for travel and medications. This claim was presented in
appellant's counsel's covering letter to the agency and included no
documentation in support, such as, receipts for travel costs (gas
and lodgings), medical documents or records substantiating treatment,
receipts for medication, and any amounts reimbursed. Most significantly,
no explanation was offered for these amounts nor were they associated with
the April 1992 nonselection. Because appellant has not substantiated his
claim for monetary losses and has not provided receipts for his actual
expenses and an explanation for the expense, we find that the agency
correctly denied appellant's claim for pecuniary damages. See Carle
v. Department of the Navy, supra. Appellant was properly appraised of
the type of information and documentation needed to support a claim for
pecuniary compensatory damages, and his failure to submit proper evidence
renders his claim insufficient. In addition, we reject appellant's claim
for damages submitted through counsel rather than through a personal sworn
statement from appellant. See Browne v. Department of Agriculture, EEOC
Appeal No. 01944256 (July 17, 1995). Finally, appellant has failed to
offer evidence or an explanation to demonstrate the agency's liability,
that is, a causal connection to the agency's discriminatory act.
Appellant's Claim for Nonpecuniary Compensatory Damages
To receive an award of nonpecuniary compensatory damages, an appellant
must submit proof of injury and causation, that is, evidence of the
harm directly caused by the 1992 nonselection. Appellant's submission
in support of his claim is very general, and appears to be part of
a larger course of ongoing events, i.e., the 1990 RIF followed by
multiple rejections for INS vacancies. He does not specifically
address or describe the harm suffered as a proximate cause of the
1992 nonselection. Appellant's submission consisting of his personal
statement, psychiatrist's report, and letters from friends and associates
reveal that the genesis of appellant's emotional condition lay in the
agency's 1990 RIF when appellant was not offered what he considered to
be an acceptable position. Further, these documents aver that subsequent
events, that is, the agency's denial of other jobs for which he applied,
including the 1992 nonselection at issue herein, and his participation
in the EEO administrative process, including his current efforts to
obtain placement in the position, have added to his mental distress.
The discriminatory nonselection at issue herein was merely a single,
additional event in a chain of events that aggravated an extant condition,
already exacerbated by other past events and which would be further
intensified by future events.
In delineating the sources of his mental distress, appellant makes
repeated reference to the 1990 RIF action when the agency failed to
offer him a suitable position. He also points to the statement of the
selecting official--made long after the nonselection, and to the agency's
implementation of the relief ordered by the Commission as factors that
caused him distress. He does not distinguish the harm experienced due
to the 1992 nonselection from the myriad other events that are not part
of our consideration herein but which have obviously caused him further
distress.
The statement of the psychiatrist did not refer to the 1992 nonselection,
and, instead, assigned the 1990 RIF as the initiating cause for his
treatment. The psychiatrist stated that appellant's symptoms have
remained "constant" since the beginning of his treatment and attached
no special significance to the 1992 nonselection or any events after
the 1990 RIF. He also noted that appellant's thoughts remain fixated
on the 1990 RIF and are the continuing reason for his treatment.
Of the letters from appellant's friends and associates, only one makes
a reference to the nonselection as a source for appellant's emotional
condition. That associate did not know appellant until 1993, however,
and his statement was based on appellant's description to him of his
(appellant's) mental distress. The letters from the other friends and
associates referred to appellant's depressed condition as a result of
the 1990 RIF action and subsequent unspecified actions by the agency.
In addition, two others discussed the stress caused by appellant's appeal
of this matter as the reason for his condition; one also referred to
appellant's complaint that the discrimination was based on age.
It is the claimant's responsibility to demonstrate that he was harmed
as a result of the agency's discriminatory action; the extent, nature
and severity of that harm; the duration of that harm; and the link or
connection of his distress to the agency's unlawful discrimination.
Fazekas v. USPS, supra. Appellant's submission meets these requirements
only to a limited extent. It clearly shows that the 1990 RIF was the
precipitating event for his mental distress and that the nonselection
was merely one incident in a series of events that added to and
aggravated that mental condition. Nevertheless, because appellant
has shown that he suffered some harm, he is entitled to an award of
nonpecuniary compensatory damages. Appellant's submission, however,
is much too general to afford the basis for more than a limited award.
Harmon v. Department of Transportation, EEOC Appeal No. 01950755
(February 2, 1998), citing Erebia v. Chrysler, 772 F.2d 1250, 1259 (6th
Cir. 1985). Also, appellant is not entitled to damages for that portion
of his mental distress caused by his participation in the EEO process.
Rountree v. Department of Agriculture, supra. Having carefully considered
the facts of this case and based on the evidence before us, the Commission
finds that the agency's award of $1,000.00 in nonpecuniary compensatory
damages is correct.
Our conclusion is not meant to diminish or dismiss appellant's suffering,
but the Commission must limit the award of damages to harm caused by the
discriminatory action of the agency. Here, appellant has not carried
his burden to demonstrate the harm suffered as a result of the April 1992
nonselection. Where an appellant fails to establish that his mental and
emotional distress were caused by the agency's discriminatory action,
he is not entitled to a significant award of nonpecuniary compensatory
damages for the alleged harm. Leperi v. Department of Agriculture, EEOC
Appeal No. 01964107 (April 2, 1998) (denied recovery where no medical
documentation submitted and physicians failed to link conditions to
work).
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 11, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant filed his formal complaint on May 11, 1992. After an
investigation, the agency issued a decision finding discrimination on
the basis of sex when appellant was not selected as a new hire for an
Immigration Inspector position and no discrimination on the other bases
and issues alleged. On appeal, the Commission affirmed the agency's
decision but modified the agency's relief. See infra.
2The Commission also directed that the agency offer appellant the
position at issue retroactive to the date of the selection, pay back pay
and other benefits, including interest, provide training for managers,
report on its compliance, post a notice, and provide attorney's fees.
Appellant has also filed a Petition for Enforcement with the Commission
concerning three matters identified in appellant's attorney's letter
dated June 3, 1998. The Commission is addressing those matters under
EEOC Petition No. 04980008.
3We note that appellant has been represented by the same attorney
throughout these proceedings and that appellant has not supplemented
his submission or provided additional material since his original
presentation.
4Appellant had worked at the agency as a Legalization Adjudicator,
GS-9, from June 1987 to April 1990, when his employment ended due to a
reduction-in-force (1990 RIF).
5See EEOC Petition No. 04980008.