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) .