05990028
07-20-2000
Christopher McGill, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Christopher McGill v. Department of Veterans Affairs
05990028
July 20, 2000
Christopher McGill, )
Complainant, ) Request No. 05990028
) Appeal No. 01955718
) Agency No. 9368733005
) 9368733006
Togo D. West, Jr., ) 9368733001
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Christopher
McGill v. Department of the Navy, EEOC Appeal No. 01955718 (September
3, 1998).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01955718 remains the Commission's final decision.
Although the agency argues that the evidence submitted by complainant
was insufficient to establish a nexus between the discriminatory action
at issue and his pain and suffering, we note that the doctor's letters
in the record establish that complainant's depression was caused in part
by his perceptions of workplace discrimination and that his condition had
deteriorated over the past four years, between 1991 and 1995. The agency
acknowledged that it issued complainant a discriminatory performance
rating in 1993. The doctor's letters submitted by complainant, along
with his testimony that the performance rating affected his health,
are sufficient to establish a causal nexus between the discriminatory
performance rating and complainant's pain and suffering.The agency
argues that the previous decision is contradicted by a companion
decision which found the same four doctor's letters to be insufficient
to establish a nexus between complainant's alleged pain and suffering
and the nonselection at issue therein. McGill v. Department of
the Navy, EEOC Appeal No. 01956384 (September 3, 1998). That case,
however, was decided on its own facts and our decision that there was
insufficient evidence to link the nonselection with complainant's pain
and suffering has no bearing on the question of whether complainant is
entitled to compensation in the instant case for damages resulting from
the discriminatory performance rating.
Finally, although the agency correctly notes that its statement in
response to complainant's appeal was timely received by the Commission,
we have reviewed this response and find that it does not justify altering
the compensatory damage award granted in the previous decision.
Accordingly, as the agency's request fails to meet the criteria set forth
in 29 C.F.R. � 1614.405(b), the agency shall comply with the Order issued
in the previous decision, as restated below. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
Within thirty (30) days of the date on which this decision becomes final,
the agency shall tender to complainant nonpecuniary compensatory damages
in the amount of $4,000.00
Within thirty (30) calendar days of the date on which this decision
becomes final, the agency shall request information for further
consideration of complainant's claim for past pecuniary damages incurred
as a result of its discrimination (i.e., reimbursement for prescriptions
and visits to doctor) beginning November 21, 1991 (post-act conduct).
Within thirty (30) days of receiving notice from the agency, complainant
shall provide evidence of his visits to the doctor, medication, and
other out-of-pocket medical expenses incurred.
Complainant is entitled to an award of reasonable attorney's fees incurred
with respect to the compensatory damages issue as provided below under
�Attorney's Fees.�
The agency is further directed to submit a report of compliance, as
provided in the section entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
July 20, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.