Franklin W. Jones, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01973551 (E.E.O.C. Apr. 14, 2000)

01973551

04-14-2000

Franklin W. Jones, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.


Franklin W. Jones v. Department of Defense

01973551

April 14, 2000

Franklin W. Jones, )

Complainant, )

) Appeal No. 01973551

v. )

) Agency No. 050692.47

William S. Cohen, )

Secretary, ) Hearing No. 310-93-5078X

Department of Defense, )

(Army & Air Force Exchange Service), )

Agency. )

)

DECISION

Complainant timely initiated an appeal from a final agency decision (FAD)

concerning his equal employment opportunity (EEO) complaint of unlawful

employment discrimination on the basis of sex (male) in violation of

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

et seq.<1> Complainant claims he was discriminated against when he was

not selected for the position of Chief, Affirmative Action Branch (Chief

position), UA-13, in April 1992, and when he was not selected to attend

any 1992 Executive Management Professional Development ("EMPD") classes.

This appeal is accepted in accordance with EEOC Order No. 960.001.

BACKGROUND

Complainant, a People Staffing Specialist, UA-12, with the agency's

Dallas, Texas facility, filed a formal complaint on June 5, 1992, alleging

discrimination as referenced above. The agency accepted the complaint

and conducted an investigation. At the conclusion of the investigation,

complainant requested a hearing before an Equal Employment Opportunity

Commission ("EEOC") Administrative Judge ("AJ"). Following a hearing,

the AJ issued a Recommended Decision (RD) concluding that complainant was

discriminated against when he was not selected for the position of Chief,

Affirmative Action Branch, UA-13, but not when he was not selected to

attend various Executive Management training classes in 1992. In its

FAD, the agency adopted the finding of no discrimination made by the AJ,

but rejected the AJ's discrimination finding in the selection for the

Chief position.

After complainant appealed the FAD, the Commission held that complainant

proved discrimination in both the selection for the Chief position

and the denial of his training requests. See Jones v. Department

of Defense, EEOC Appeal No. 01934309 (Oct. 28, 1994). The decision

concluded that complainant demonstrated that he had better education,

management experience, substantive experience, evaluation ratings, and

time in-grade than the selectee for the Chief position. The decision

also found that while selection for the training was to be based on

supervisory experience and candidate performance, the evidence showed that

women who were not supervisors or contenders for supervisory positions

and rated lower than complainant were permitted to attend the training.

To remedy the established discrimination, we ordered the agency to place

complainant in the Chief position, UA-13, or a comparable position with

back pay and to conduct a supplemental investigation for complainant's

claim of compensatory damages. The agency's subsequent request for

reconsideration was denied. See Jones v. Department of Defense, EEOC

Request No. 05950210 (Sept. 13, 1996).

On remand, complainant submitted three affidavits in support of his claim

for compensatory damages. Complainant's affidavit stated that due to

the discrimination, he suffered interference with family and marital

relations, digestive problems, headaches, anxiety, sleeplessness,

and exhaustion. From a financial standpoint, he stated that the

discrimination caused him have a reduction in disposable income because

of attorney's fees associated with the case. Additionally, complainant

stated that after the agency reorganized, he was forced to take early

retirement, because the reorganization would have required him to

work for one of the discriminating agency officials. Complainant

contended that the early retirement cost him $6,618.44 annually.

Complainant also asserts that if he had not been forced to retire,

he probably would have been promoted to the UA-14 grade level in 1995.

Complainant's wife submitted an affidavit stating that the discrimination

caused deterioration to their marital relationship and created new debts

requiring her to take minimum wage employment. One of complainant's

co-workers submitted an affidavit stating that after filing the complaint,

he observed that complainant experienced anxiety, frustration, marital

difficulties.

After evaluating the evidence, the agency issued a FAD finding that

complainant failed to establish entitlement to any pecuniary damages.

The FAD noted that complainant had received a promotion to the UA-13

level two and a half months after the selection at issue. However, the

agency found that complainant had proven that the discrimination caused

him emotional harm, and awarded him $2,000.00 in non-pecuniary damages.

Complainant now appeals the agency's compensatory damages determinations,

contending that the non-pecuniary award should have been at a minimum

$9,000.00 and asserting that he provided sufficient evidence to justify

a pecuniary award based on his financial hardship associated with the

discrimination. The agency responded by restating the position it took

in its FAD and requesting that we affirm its FAD.

ANALYSIS

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, 119 S.Ct. 1906 (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 evidence

that will allow an agency to assess the merits of his request for damages.

See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January

5, 1993).

Pecuniary Damages

Compensatory damages may be awarded for pecuniary losses that are

directly or proximately caused by the agency's discriminatory conduct.

See Compensatory and Punitive Damages Available Under Section 102 of

the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 8. Pecuniary

losses are out-of-pocket expenses incurred as a result of the agency's

unlawful action, including job-hunting expenses, moving expenses,

medical expenses, psychiatric expenses, physical therapy expenses, and

other quantifiable out-of-pocket expenses. Id. Past pecuniary losses

are losses incurred prior to the resolution of a complaint through a

finding of discrimination, the issuance of a full-relief offer, or a

voluntary settlement. Id. at 8-9. Future pecuniary losses are losses

that are likely to occur after resolution of a complaint. Id. at 9.

In this case, other than fees paid to his attorney, complainant has

failed to provide any corroborating evidence of pecuniary damages.<2>

While he cites his accruing $11,000.00 of credit card debt, complainant

does not demonstrate a nexus between agency's actions and this debt,

especially in light of the fact that he was promoted to the UA-13 level

only two and half months after the selection in issue.

As for complainant's claim regarding early retirement, we find that he

failed to provide credible evidence demonstrating that he could not work

under the Vice-President of Human Resources, an official who participated

in the decision making for the underlying discriminatory selection. It is

understood that filing a discrimination complaint can cause uncomfortable

working relationships within an agency. However, Title VII protects

individuals who participate in the EEO process by requiring that the

agency not retaliate against such individuals. See Section 704(a) of

Title VII, 42 U.S.C. �2000e-3(a). In this case, we find that complainant's

retirement was a personal choice and not an event or occurrence caused

by the agency's discriminatory conduct. Complainant merely claims that

it was uncomfortable to work under the Vice-President of Human Resources

and has failed to provide any credible evidence demonstrating why the

working relationship would be impracticable.

Non-Pecuniary Damages

Non-pecuniary damages constitute the sums necessary to compensate

the injured party for actual harm, even where the harm is intangible.

Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). The

award should take into account the severity and duration of 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 nonpecuniary 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 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 the above legal standards, we agree with the agency that

complainant submitted sufficient unrebutted evidence to establish that

he suffered emotional harm as a result of the agency's discrimination.

The record contains several instances where witnesses attest to

the effect the discrimination had on complainant's mental health.

Complainant testified that he experienced interference with family and

marital relations, digestive problems, headaches, anxiety, sleeplessness,

and exhaustion as a result of the discrimination. Like the FAD, we find

that this uncontroverted evidence establishes complainant's entitlement

to compensatory damages. See Sinott v. Department of Defense, EEOC

Appeal No. 01952872 (September 19, 1996)(stating that an complainant's

own testimony, along with the circumstances of a particular case, can

establish mental or emotional harm).

While there is no dispute that complainant is entitled to non-pecuniary

damages, the parties differ on the appropriate amount necessary to

remedy the discrimination. Complainant contends that at a minimum,

he should receive $9,000.00 and the agency contends that $2,000.00

properly compensates complainant for the underlying discrimination.

We note that the Commission has awarded compensatory damages in cases

somewhat similar to complainant's. Butler v. Department of Agriculture,

EEOC Appeal No. 01971729 (April 15, 1999)($7,500 in non-pecuniary damages

based on complainant's testimony regarding his emotional distress); Hull

v Department of Veteran Affairs, Appeal No. 01951441 (Sept. 18, 1998)

($12,000 in non-pecuniary damages based on complainant's testimony of

emotional distress due to retaliatory harassment); Miller v. United

States Postal Service, EEOC Appeal No. 01956109 (January 23, 1998),

($7,500.00 in non-pecuniary damages where the complainant produced scant

evidence to support his claim); Roundtree v. Department of Agriculture,

EEOC Appeal No. 01941906 (July 7, 1995) ($8,000 in non-pecuniary damages

where medical evidence testimony was provided regarding complainant's

emotional distress, but the majority of complainant's emotional problems

were caused by factors other than the discrimination).

In the present case, the evidence concerning emotional or mental harm

comes from complainant, his wife, and a co-worker. After analyzing

the evidence which establishes the stress and emotional discomfort

sustained by complainant and upon consideration of damage awards reached

in comparable cases, the Commission finds that complainant is entitled

to an award of non-pecuniary damages in the amount of $7,500.00.

This amount takes into account the severity and duration of the harm

done to complainant by the agency's failure to select him for the Chief

position and to provide him with EMPD training. The Commission notes

that complainant endured 16 months of emotional distress due to the

agency's discrimination.<3> The Commission further notes that this

amount meets the goals of not being motivated by passion or prejudice,

not being "monstrously excessive" standing alone, and being consistent

with the amounts awarded in similar cases. See Cygnar, 865 F.2d at 848.

CONCLUSION

Accordingly, based on a thorough review of the record, and for the

foregoing reasons, we AFFIRM the FAD's finding of no pecuniary damages.

However, we REVERSE the FAD in so far as it failed to provide the

appropriate amount of non-pecuniary damages.

ORDER (C1092)

We hereby ORDER the agency to, within thirty (30) days of the date on

which this decision becomes final, tender to complainant non-pecuniary

compensatory damages in the amount of $7,500.00.

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 must include evidence that the corrective action

has been implemented.

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).

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/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.

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:

April 14, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 will be reimbursed for reasonable attorney's fees. See 29

C.F.R. � 1614.501(e).

3 This period began in January 1992, when complainant was denied

training, and ended in May 1993, when complainant received the training.

It includes the two and half month period (May 1992 to August 1992), in

which the discriminatory selection occurred and complainant's selection

to an equivalent UA-13 position.

While complainant claimed distress for the five years spent in the

EEO process, we further note that the Commission has held that a

complainant may not recover compensatory damages for stress associated

with prosecution of an EEO complaint. See Rountree v. Department of

Agriculture, EEOC Appeal No. 01941906 (July 7, 1995), affirmed, EEOC

Request No. 05950919 (February 15, 1996) .