01993378
03-29-2001
John R. Hardee, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
John R. Hardee v. Department of the Navy
01993378
March 29, 2001
.
John R. Hardee,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01993378
Agency No. DON-97-00146-N04
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
The Agency issued a �interim decision� on September 24, 1998, finding
that the agency discriminated against complainant when it terminated
him on November 21, 1996, as alleged.<1> The interim decision required
the agency to provide the following to complainant:<2> (1) back pay from
the date of termination to the date complainant refused reinstatement;
(2) attorney's fees and costs, if appropriate; (3) expungement of
complainant's personnel file regarding the termination; and (4) posting
of a notice of discrimination. In addition, the interim decision ordered
the agency to determine the appropriate amount of compensatory damages,
if any. Complainant did not appeal this decision.<3>
On December 15, 1998, the agency completed its award of back pay to
complainant in the total amount of $1,261.65 based upon a comparison
of similarly situated individuals. On February 11, 1999, the agency
issued a Final Agency Decision (FAD) awarding $7,500.00 to complainant in
compensatory damages. On March 16, 1999, complainant filed this appeal.
Complainant argues on appeal that the agency's back pay award was improper
and that the compensatory damages award was not calculated correctly.
Complainant asserts that he is entitled to back pay from the date of
termination to the date �this claim is resolved.� With respect to
compensatory damages, complainant is seeking $300,000.00 for suffering
from TMJ and kidney disorder pain, stress and mental anguish, loss of
future earning capacity, defamation, embarrassment, and damage to his
credit as a result of the agency's intentional discriminatory acts.
The agency disputes complainant's assertions.
Compensatory Damages
In the FAD, the agency noted the following evidence provided by
complainant in support for his claim for compensatory damages: (1)
Medical records from the Department of Veteran Affairs dating from
May 30, 1997 to October 15, 1998, documenting recurring kidney stones
and arthritis in complainant's knees and back. However, complainant
provided no invoices or bills for office or hospital visits, diagnostic
procedures, or medicine; (2) Medical documentation from the Department of
Veterans Affairs, dating from December 10, 1996 to September 17, 1997, for
Temporomandibular Joint (TMJ) Disorder. However, complainant submitted no
invoices or bills for office or hospital visits, diagnostic procedures,
or medicine; (3) Miscellaneous receipts for postage and office supplies;
and (4) statements from family members, friends, and co-workers dated
March, 1997 and October 1998, attesting to the physical and emotional
effects of the agency's action on complainant. Complainant provided no
medical documentation in support of his claim for emotional distress.
With respect to complainant's claim for pecuniary damages, the FAD
determined that since complainant did not submit evidence of expenses
incurred related to his medical treatment (despite being advised to do
so) he was not entitled to compensation for any past, present or future
medical expenses. In addition, with respect to complainant's claim for
loss of future earning capacity, the FAD determined that complainant
was not entitled to such a remedy. According to the evidence of record,
complainant was cleared to return to his bartender position as of December
11, 1996. In addition, the record shows that complainant refused the
agency's reinstatement offer. Since there was no evidence in the record
indicating that complainant was medically unable to return to work, or
that his two-month hiatus from his bartending position negatively affected
his future earning capacity, the agency determined that complainant was
not entitled to such a remedy.
With respect to complainant's claim for non-pecuniary damages, the FAD
determined that the medical records submitted contained no documentation
linking complainant's physical problems to his termination. Since all
of complainant's medical problems pre-dated the agency's discriminatory
action, the FAD found it impossible to establish causation of specific
symptoms without expert testimony. Accordingly, the FAD determined
that complainant failed to prove entitlement to an award of compensatory
damages for non-pecuniary losses related to physical pain and suffering.
With respect to emotional harm, the FAD noted that the record contained
statements from complainant, his father, friends and co-workers supporting
his contention that complainant experienced mental distress. The FAD
concluded, however, that these letters focused on complainant's suffering
great stress by being consumed with working on his EEO complaint.
The FAD did not credit these letters in any substantial way since it
found that complainant is not entitled to emotional distress associated
in participated in the EEO process. However, the agency did determine
that complainant, through his own testimony, established that he suffered
some degree of emotional harm immediately following his termination.<4>
In addition, friends and family testified that complainant was depressed
and refrained from associating with others immediately following his
termination. In addition, the FAD noted that complainant testified
that he almost lost his house and had to borrow money from his father.
In support of his claim, complainant provided a promissory note to his
father for $5,000.00 at eight percent interest and a letter from the
Oakwood Acceptance Corporation dated December 12, 1996, referring to
delinquencies on complainant's mobile home account. The letter noted
that delinquencies existed since November 1, 1996. While the agency
found that complainant suffered some emotional harm from his termination,
it also determined that by refusing to accept the unconditional offer
of reinstatement, complainant failed to mitigate the negative emotional
and financial effects of the agency's discriminatory termination.
Finally, the agency concluded by finding that the mental and financial
difficulties that complainant suffered prior to the termination were
exacerbated by the termination, causing a short-term further deterioration
of his condition. Upon review of comparable damages awards the agency
determined that a compensatory damages award of $7,500.00 was appropriate
in this case. Citing Wooten v. United States Drug Administration, (EEOC
Appeal No. 01960727 (August 28, 1997) (pursuant to awarding damages
in the amount of $10,000, EEOC determined that the agency's actions
were short in duration (two months) and not particularly egregious
(termination initiated and then cancelled), and that the degree to which
appellant's condition was aggravated was unclear; White v. Veterans
Affairs, EEOC Appeal No. 01950342 (June 13, 1997) (pursuant to awarding
$5,000 in non-pecuniary damages, EEOC determined that the record contained
only brief testimony of the appellant and even briefer reports by her
psychologist) comparing to Terrell v. Housing Urban Development, EEOC
Appeal No. 01961030 (October 25, 1996) (pursuant to awarding $25,000 in
non-pecuniary damages covering a period of twenty months, EEOC determined
that the emotional harm lasted until the point that the appellant no
longer needed to take medication for his condition).
Back pay
With respect to its back pay award, the agency argues that entitlement to
back pay is terminated when complainant refused the unconditional offer
of reinstatement. Citing Richardson v. United States Postal Service,
EEOC Request No. 05880040 (June 15, 1988), citing Ford Motor Company
v. EEOC, 458 U.S. 219 (1982). Accordingly, the agency provided back
pay to complainant during the period between the termination and the
refusal to be reinstated.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final and
interim decisions because the preponderance of the evidence of record
indicates that the calculations by the agency with respect to both back
pay and compensatory damages were correct.
ORDER (D0900)
To the extent the agency has not done so already, it is ordered to take
the following remedial action:
1. The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant between
the period December 11, 1996 and February 10, 1997, pursuant to 29
C.F.R. � 1614.501, no later than sixty (60) calendar days after the date
this decision becomes final. The complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision.�
2. Expunge any reference to complainant's termination from the position
of Bartender at the Activity, in any Navy personnel records.
3. Award complainant non-pecuniary 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 shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
POSTING ORDER (G0900)
The agency is ordered to post at its Marine Corps Air Station, Cherry
Point, North Carolina facility copies of the notice provided by the agency
in its �Interim Decision� dated September 24, 1998. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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 (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 29, 2001
__________________
Date
1 Prior to the issuance of the interim order, the agency offered
complainant reinstatement separate from his pending EEO complaint.
However, complainant refused to come back to work.
2 Since complainant had previously rejected reinstatement, the interim
decision did not order reinstatement.
3 We will not penalize complainant for failing to appeal this decision
since the agency improperly failed to issue a �Final Agency Decision�
with appeal rights. Accordingly, we find complainant's appeal timely
with respect to all issues raised on appeal.
4 Complainant testified to feelings of anger, humiliation and distress
following the termination.