Henry Thomas, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 24, 2000
01a01600 (E.E.O.C. Jul. 24, 2000)

01a01600

07-24-2000

Henry Thomas, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Henry Thomas v. Department of Veterans Affairs

01A01600

July 24, 2000

.

Henry Thomas,

Complainant,

v.

Togo D. West, Jr.,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A01600

Agency No. 950773

DECISION

Henry Thomas (complainant) timely initiated an appeal from a final agency

decision (FAD) concerning his claim for compensatory damages, issued

in accordance with a decision from this Commission.<1> The Commission

found that the agency had violated Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. when

it discriminated against complainant on the bases of his race (Black)

and disability (pulmonary condition, hypertension, visual problems). The

appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether complainant established that he is entitled

to compensatory damages beyond the $5,000.00 awarded by the agency.

BACKGROUND

On June 24, 1999, this Commission issued a decision finding that the

agency discriminated against complainant on the above-cited bases

when it did not select him for the position of GS-12 EEO Specialist in

October 1993 and subsequently canceled the position. The Commission

ordered the agency to conduct a supplemental investigation on the issue

of complainant's entitlement to compensatory damages. On November 12,

1999, the agency issued a FAD in compliance with this order. Therein,

the agency awarded complainant $5,000.00 in compensatory damages.

In granting this award, the agency noted that complainant did not claim

any pecuniary losses. The agency also found that only part of the damages

claimed by complainant were proximately caused by the discriminatory

conduct of the agency, noting that non-discriminatory work conditions

contributed to complainant's distress. The agency concluded that

the evidence supported an award of $5,000.00 for non-pecuniary losses.

It is this FAD from which complainant now appeals.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the agency's award is grossly

inadequate and does not fully compensate him for his non�pecuniary losses.

He argues, among other things, that he suffered the effects of the

agency's discrimination for more than five years, from his non-selection

in October 1993, to the promotion he received in August 1999 pursuant

to the Commission's order. He also argues that the agency unfairly

faulted him for not providing medical information, noting that there

is abundant evidence in the record as to his severe medical problems

and that such evidence is not required in assessing the amount of a

compensatory damages award. Finally, he alleges that $50,000.00 is

necessary to fully compensate him.

In response, the agency notes that complainant did not rebut any of

the underlying factual considerations and legal principles set forward

in the FAD and that the agency correctly reviewed damages awards in

similar cases in determining that $5,000.00 was an appropriate award.

The agency asks that its FAD be affirmed.

ANALYSIS AND FINDINGS

Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant

who establishes a claim of unlawful discrimination may receive, in

addition to equitable remedies, compensatory damages for past and future

pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses

(e.g., pain and suffering, mental anguish). 42 U.S.C. � 1981a(b)(3).

For an employer with more than 500 employees, such as the agency,

the limit of liability for future pecuniary and non-pecuniary damages

is $300,000. Id. The Supreme Court has recently confirmed that the

Commission possesses the legal authority to require federal agencies to

pay compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).

The particulars of what relief may be awarded, and the proof necessary to

obtain that relief, are set forth in detail in Compensatory and Punitive

Damages Available Under Section 102 of the Civil Rights Act of 1991,

EEOC Notice No. N-915.002 (July 14, 1992) (Compensatory Damages Notice).

Briefly stated, the complainant must submit evidence to show that the

agency's discriminatory conduct directly or proximately caused the losses

for which damages are sought. See Damiano v. United States Postal

Service, EEOC Request No. 05980311 (February 26, 1999). The amount

awarded should reflect the extent to which the agency's discriminatory

action directly or proximately caused harm to complainant and the extent

to which other factors may have played a part. See Compensatory Damages

Notice, at 11-12. The amount of non-pecuniary damages should also

reflect the nature and severity of the harm to complainant, and the

duration or expected duration of the harm. Id. at 14. A complainant

is required to provide evidence that will allow an agency to assess the

merits of complainant's request for emotional distress damages. See Carle

v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).

Evidence of Injury and Causation

The Commission has found that complainant was discriminated against when

he was denied a promotion to a GS-12 position and when that position was

subsequently canceled. The record establishes, through testimony from

complainant and his wife, as well as letters from family friends, that

the agency's discriminatory treatment harmed complainant. Complainant

testified that when he was not selected for the EEO specialist position,

he was humiliated, and began suffering from insomnia, depression, a lack

of self-esteem, and a worsening of health conditions. Others confirmed

that complainant underwent a personality change after he did not receive

the GS-12 promotion, becoming less confident and withdrawing from his

family.

We find that based on the testimony provided and the fact that the agency

acknowledged a causal connection between the discriminatory treatment

complainant endured and some portion of the distress he suffered,

complainant has established that a portion of his harm was caused by

the agency's discriminatory conduct.

Calculation of Damages Payable

1. Pecuniary Damages

Complainant did not claim any pecuniary losses, past or future. Nor did

he furnish receipts for any treatment or costs incurred as a result

of the discriminatory conduct or any evidence that such costs will be

incurred in the future. The agency therefore correctly determined that

complainant should be awarded no pecuniary damages.

2. Non-pecuniary Damages

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

damages to be awarded. Non-pecuniary damages must be limited, however,

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

even where the harm is intangible. The existence, nature, and severity of

emotional harm must be proved. See Compensatory Damages Notice, at 11.

Emotional harm may manifest itself, for example, as sleepiness, anxiety,

stress, depression, marital strain, humiliation, emotional distress,

loss of self esteem, excessive fatigue, or a nervous breakdown. Id.

A proper award should take into account the severity of the harm and the

length of time that the injured party suffered the harm. See Carpenter

v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).

Finally, 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

Jackson v. United States Postal Service, EEOC Appeal No. 01972555

(April 15, 1999), citing Cyanar v. City of Chicago, 865 F. 2d 827, 848

(7th Cir. 1989).

In the case at hand, complainant testified to his humiliation, stress,

insomnia and other sleep problems, including nightmares and teeth

grinding, caused by the discriminatory non-selection. He noted

that after being denied the position in question, he had to continue

working under the supervisor who was responsible for his non-selection.

Complainant testified that the stress he felt due to the discrimination

caused his pre-existing medical conditions to worsen, stating that his

blood pressure increased, his hypertension became more severe, and at

one point he was placed in the hospital for recovery.

Complainant's wife supported complainant's descriptions, noting that the

discrimination her husband was subjected to destroyed his self-confidence,

and caused insomnia, nightmares, depression and anxiety. Both complainant

and his wife testified that his personality change affected the whole

family, causing marital problems and affecting complainant's relationship

with their children for several years. Complainant's sister-in-law

wrote that the problems complainant faced at work changed him from an

outgoing leader in the family, to a silent man who rarely participated

in family gatherings. A friend of the family wrote that complainant's

work environment caused him to become depressed and anxious. Complainant

and his wife agreed that ever since he received the GS-12 position in

August 1999 in accordance with this Commission's order, his emotional

and physical states have been improving.

After a thorough review of the record, we agree with the agency that a

portion of the harm complainant and others testified to was caused by

factors other than the agency's discriminatory conduct. Complainant and

his wife testified that his emotional distress and health problems

were exacerbated by work problems other than the discriminatory

non-promotion.

We also note that while complainant noted that his health problems were

exacerbated by the stress of discrimination, the only medical evidence in

the record is a medical report from 1988, making it difficult to determine

the extent to which his condition worsened after he was subjected to

discrimination. Complainant correctly notes on appeal that evidence

from a health care professional is not a mandatory prerequisite for

recovery of compensatory damages for emotional distress. See Lawrence

v. United States Postal Service, EEOC Appeal No. 01952288 (April 18,

1996). However, in cases involving pre-existing medical conditions,

medical information is useful in determining the extent to which the

discriminatory actions exacerbated the medical problems. See Hogeland

v. United States Department of Agriculture, EEOC Appeal No. 01976440 (June

14, 1999). With this in mind, we now turn to a review of non-pecuniary

damage awards in previous Commission decisions.

Several Commission decisions have awarded compensatory damages in cases

somewhat similar to complainant's. In Bernard v. Department of Veterans

Affairs, EEOC Appeal No. 01966861 (July 17, 1998), the Commission awarded

$80,000.00 to a complainant who was denied reasonable accommodation

and non-selected for a position. The complainant, through his own

testimony and testimony of friends and family, presented evidence that

he experienced symptoms of depression, as well as headaches, ringing

in his ears, vomiting, raised blood pressure, grinding of his teeth,

and insomnia over a five year period.

Sinnot v. Department of Defense, EEOC Appeal No. 01952872 (September 19,

1996), involved a complainant who endured 14 months of sexual harassment

and had suffered emotionally as a result. The Commission awarded

$20,000.00 in non-pecuniary damages for her emotional suffering based on

testimony from complainant, as well as her family and friends, describing

the harm she suffered, including the deterioration of her marriage.

In another case, Terrell v. Department of Housing and Urban Development,

EEOC Appeal No. 01961030 (October 25, 1996), the Commission awarded

$25,000.00 in non-pecuniary damages

to a complainant who was subjected to discrimination based upon sex

when he was not selected for a position in 1993. The complainant

testified to a number of emotional problems, including sleep problems,

frequent crying, embarrassment, mental anguish, loss of self-esteem,

introversion and disruptions in his relationships with his family and

friends. The complainant's psychiatrist determined that complainant

suffered depression and suicidal thoughts. In awarding $25,000.00 The

Commission found that the emotional harm lasted for approximately 18

months, but also noted that the majority of complainant's emotional

problems were not shown to be caused by the agency's adverse action.

In a more recent case, the Commission awarded $16,000.00 in non-pecuniary

damages to a complainant who testified to his emotional distress,

depression and marital troubles and provided a short statement from a

psychotherapist indicating that the complainant was experiencing stress

caused by his work situation. See Olsen v. Department of Defense,

EEOC Appeal No. 01956675 (September 18, 1998).

In determining the amount of non-pecuniary damages to which complainant

in the case at hand is entitled, the Commission has considered that

complainant has suffered from the effects of the discrimination for

approximately five years. We have considered the nature and severity of

the discrimination, as well as the nature and severity of complainant's

emotional distress and the fact that a large portion of the distress he

suffered was caused by the agency's discriminatory action. Finally, we

have taken into consideration amounts awarded in similar cases and the

goals of compensatory damages. Based on these factors, the Commission

finds that complainant is entitled to non-pecuniary damages in the amount

of $25,000.00

CONCLUSION

Based upon our review of the record, and for the foregoing reasons, we

hereby MODIFY the FAD. The Commission finds that complainant is entitled

to receive an award of compensatory damages in the amount of $25,000.00,

all of which constitutes compensation for non-pecuniary damages.

ORDER

The agency is ORDERED to take the following remedial actions:

Within thirty (30) calendar days of the date that this decision becomes

final, the agency shall issue a check to complainant in the amount

of $25,000.00. The agency is further directed to submit a report of

compliance, as provided in the statement below entitled �Implementation

of the Commission's Decision.� The report shall include evidence that

the corrective action has been implemented.

2. Since 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

his compensatory damages claim. 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).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

July 24, 2000

__________________

Date

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.