Christopher McGill, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
05990028 (E.E.O.C. Jul. 20, 2000)

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.