Daniel Vereen, Complainant,v.John H. Dalton, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01984409 (E.E.O.C. Mar. 9, 2000)

01984409

03-09-2000

Daniel Vereen, Complainant, v. John H. Dalton, Secretary, Department of the Navy, Agency.


Daniel Vereen v. Department of the Navy

01984409

March 9, 2000

Daniel Vereen, )

Complainant, )

)

v. ) Appeal No. 01984409

)

John H. Dalton, ) Agency No. DON-96-444-006

Secretary, )

Department of the Navy, )

Agency. )

_____________________________________)

DECISION

Daniel Vereen (complainant) filed an appeal with this Commission from a

final decision of the Department of Navy (agency) concerning his complaint

of unlawful employment discrimination, in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et

seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 701 et

seq.<1> This appeal is accepted in accordance with 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented on appeal is whether the agency properly calculated

the amount of non-pecuniary compensatory damages to which complainant

is entitled.

BACKGROUND

Complainant (a former Painter, WG-4102-09 in the Painting/Sandblasting

Ship, Waterfront Services Division, Repair Department, Trident Refit

Facility, Kings Bay, Georgia) filed an EEO complaint on November 19, 1993,

claiming discrimination based upon physical disability (blood disorder)

and race (Black), when he was not accommodated at his grade level and

not provided pay retention.

Following an investigation, a hearing took place before an EEOC

Administrative Judge (AJ) who recommended a finding of discrimination

when the agency failed to accommodate complainant at his grade level

or provide him with retained pay. By letter dated August 25, 1995,

complainant was issued an Interim Agency Decision which adopted the AJ's

recommended decision.

In accordance with the AJ's recommendation, the agency was required

to place complainant in a position at the WG-09 grade level or in a

similar position as of the date he was downgraded, commensurate with

his physical limitations. Complainant was also informed of his right

to compensatory damages and was provided with an opportunity to submit

evidence and argument in support of the requested relief.

Complainant requested $30,000.00 in compensatory damages based on his

statement that he suffered from bad headaches, an abnormal heart beat,

sleeping problems, mental anguish and loss of enjoyment of life over a

three-year period. Complainant also submitted documentation listing:

(1) $339.67 and $1,405.70 in expenses incurred at two different medical

facilities for his blood disorder; and (2) $1,930.00 from a psychiatric

facility for treatment of depression.

The agency issued its Final Agency Decision (FAD) on August 25,

1995 awarding the following pecuniary damages: (1) $1,965.00 for

medical costs associated with complainant's depression; (2) mileage

reimbursement of 563 miles to visit his physicians; (3) 744.5 hours

of leave restored. The agency also awarded non-pecuniary damages of

$10,000.00 for complainant's negative feelings about life, bad headaches,

abnormal heart beats, sleeping problems, mental anguish, family problems

and loss of enjoyment of life for three years.

The agency denied the portion of complainant's claim involving his blood

disorder since he allegedly failed to show (1) it occurred subsequent to

the discriminatory incidents in issue and (2) it was aggravated because

of the discrimination.

In his appeal, complainant argues that he should have received

non-pecuniary damages associated with his blood disorder (an additional

$20,000.00) because it was allegedly caused by the agency's intentional

discrimination. Complainant states that the intentional discrimination

made his "illness one that will last for a life time."<2>

ANALYSIS AND FINDINGS

Section 102(a) of the 1991 Civil Rights Act authorizes an award

of compensatory damages for all post-Act pecuniary losses, and for

non-pecuniary losses, such as, but not limited to, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life,

injury to character and reputation, and loss of health. In this regard,

the Commission has authority to award such damages in the administrative

process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages

do not include back pay, interest on back pay, or any other type of

equitable relief authorized by Title VII. To receive an award of

compensatory damages, a complainant must demonstrate that he 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), req. for reconsid. denied, EEOC Request No. 05940927

(December 11, 1995); Compensatory and Punitive Damages Available Under

Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at

11-12, 14 (July 14, 1992). A complainant is required to provide objective

evidence that will allow an agency to assess the merits of a complainant's

request for emotional distress damages. See Carle v. Department of the

Navy, EEOC Appeal No. 01922369 (January 5, 1993).

There are no definitive rules governing the amount of non-pecuniary

damages to be awarded. However, non-pecuniary damages must be limited

to the sums necessary to compensate the injured party for actual harm,

even where the harm is intangible, See Carter v. Duncan - Higgins, Ltd.,

727 F.2d 1225 (D.C. Cir. 1984), and should take into account the severity

of the harm and the length of time that the injured party has suffered

the harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652

(July 17, 1995). Non-pecuniary and future pecuniary damages are limited

to an amount of $300,000.00. The Commission notes that for a proper

award of non-pecuniary damages, the amount of the 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 Damiano v United States Postal Service, EEOC

Request No. 05980311 (February 26, 1999); Ward - Jenkins v. Department

of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar

v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).

Applying this legal standard, we agree with the agency's $10,000.00 award

for complainant's non-pecuniary damages in this matter. The uncontested

record indicates that the discriminatory conduct was the proximate cause

of the depression that complainant suffered which lasted approximately

three years. However, the record does not support a finding that the

discrimination caused or aggravated complainant's blood disorder.

In fact, the evidence in the record shows that complainant's blood

disorder actually improved during the period of discrimination.

Accordingly, we find that complainant was not entitled to compensatory

damages with regard to his blood disorder.

In the present case, it is undisputed that the entire evidence concerning

emotional or mental harm comes from complainant's affidavit and a

letter from his physician. Complainant affirmed that he felt bad toward

his life, suffered from bad headaches, abnormal heart beats, sleeping

problems, mental anguish, and loss of enjoyment of life for three years.

In addition, complainant affirmed that he was separated from his wife

and daughter for two years, suffered family problems and had to cancel

his insurance. Complainant's physician confirmed he had become "severely

depressed with insomnia, anorexia, obsess[ed] about work with worries

of financial problems that his family [was] experiencing" during the

period of discrimination. The record is devoid of evidence which would

show that complainant's emotional or mental harm lasted longer than three

year or could be expected to last longer than three years. While we find

appellant's testimony credible, we also find that this evidence does not

rise to the level of severity meriting a large non-pecuniary award. The

Commission generally awards large non-pecuniary awards in cases where an

appellant establishes severe emotional harm and/or a long-term injury. See

Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April

29, 1997) ($100,000 in non-pecuniary damages for severe psychological

injury over four years which was expected to continue for an indeterminate

period of time); Wallis v. United States Postal Service, EEOC Appeal

No. 01950510 (November 13, 1995) ($50,000.00 in non-pecuniary damages

for aggravation of pre-existing emotional condition, where effects were

expected to last at least seven years).

We note that there have been several recent Commission decision which

have awarded non-pecuniary damages for emotional distress. In Mullins

v. United States Postal Service, EEOC Appeal No. 01954362 (May 22,

1997), the Commission ordered an award of $10,000.00 in non-pecuniary

compensatory damages where the evidence established that the complainant's

depression (which included features of pessimism, helplessness, loss

of concentration, poor memory, anxiety, tension, difficulty with trust,

paranoia, feelings of alienation, low self-esteem, withdrawn behavior,

loss of initiative, resentment, and hostility) was directly related to the

emotional damage the complainant suffered in her work environment as a

result of the sexual harassment and reprisal. In White v. Department

of Veteran Affairs, EEOC Appeal No. 01950342 (June 13, 1997), the

Commission ordered an award of $5,000.00 in non-pecuniary damages where

the complainant's testimony and his psychologist's report indicated

that the harassment the complainant endured led complainant to suffer

from anxiety, depression, emotional fatigue, occasional nightmares,

and insomnia. In Rountree v. Department of Agriculture, EEOC Appeal

No. 01941906 (July 7, 1995), affirmed, EEOC Request No. 05950919 (February

15, 1996), the Commission ordered an award of $8,000.00 in non-pecuniary

damages where the complainant's statement and psychologist's report

indicated that some of the complainant's emotional distress, including

feelings of inadequacy, failure, and depression, were the result of a

discriminatory performance appraisal and the denial of bonus pay based

on that appraisal. In Benson v. Department of Agriculture, EEOC Appeal

No. 01952854 (June 27, 1996), the Commission affirmed the agency's award

of $5,000.00 in non-pecuniary damages where the complainant, his

relatives, and his colleagues offered testimony regarding the

embarrassment and humiliation that the complainant suffered at work

as a result of the denial of promotional opportunities, a suspension,

and other adverse actions.

Having carefully considered the facts of this case, the Commission

agrees with the agency and finds that complainant is entitled to

non-pecuniary damages in the amount of $10,000.00. In reaching this

amount, the Commission has considered a number of factors. For example,

we considered the nature and severity of the discrimination, as well as

the nature and severity of complainant's emotional distress and related

symptoms. Finally, we considered the amounts awarded in similar cases.

Based upon all of these considerations, we find that $10,000.00 is a

proper award for the emotional distress that complainant has suffered.

Lastly, with respect to complainant's requests related to his pecuniary

damages award, since we find the evidence of record does not support the

finding that complainant will likely suffer any future reoccurrence of his

depression or related symptoms, he is not entitled to additional pecuniary

damages, now or in the future, related to this claim. Complainant also

seeks assurances that he will be compensated in the event that the

agency retaliates against him in the future. Should the agency retaliate

against complainant, or otherwise discriminate against him, in the future,

complainant would be entitled to file a new EEO complaint and seek damages

associated with such discriminatory treatment. However, complainant is

not entitled to any additional remedies or assurances of future remedies

with respect to the discriminatory conduct at issue herein.

Accordingly, and for the reasons set forth above, the Commission hereby

AFFIRMS the agency's final decision finding that complainant is entitled

to $10,000.00 in non-pecuniary compensatory damages.

ORDER

If it has not already done so, within fifteen (15) days of the date on

which this decision becomes final, the agency shall tender to complainant

non-pecuniary compensatory damages in the amount of $10,000.00. Proof of

payment must be sent to the Compliance Officer, as referenced below,

even if the agency has already tendered payment.

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).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

3/9/00

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

Date

1 On 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.

2 Complainant also states on appeal that while he agrees with the amount

of the pecuniary damages award, he wants assurances that he will receive

additional compensation if the agency retaliates against him in the

future or if his symptoms of depression reoccur.