01995242
10-11-2000
Joseph Milder, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Joseph Milder v. Department of Veterans Affairs
01995254
October 11, 2000
.
Joseph Milder,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995254
Agency No. 95-1671
Hearing No. 260-96-8043X
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his compensatory damages claim in relation to a 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> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
On January 15, 1999, the Commission found that complainant was subjected
to reprisal for a grievance that raised claims of discrimination in
connection with denial of advanced sick leave in December, 1992, a
progress review in February, 1993 and non-selection for hiring in May,
1995.<2>
The complainant asserts that he is entitled to compensatory damages in
an unspecified amount due to the agency's retaliatory conduct.
Background
Complainant worked at the Department of Veterans Affairs, Police
and Security Department (agency) as a Police and Security Officer,
GS-4, from September 20, 1981 until March, 1993. From March, 1993 to
November 5, 1993, complainant worked in a Housekeeping position in the
Environmental Service Section (EMS). Prior to his employment with the
agency, complainant was a military Police Officer serving in the United
States Air Force.
Since 1989, complainant's first-line supervisor (S1) was in charge
of scheduling shifts which were rotated among the Police Officers. In
1991, complainant filed a union grievance complaining of the alleged
unfair treatment complainant received in the scheduling of shifts
by S1. Complainant complained that he was taken out of the scheduled
rotation and given less desirable shifts. The complaint was resolved by
the agency allowing the senior officer to pick the shifts. Complainant
was the senior officer at the time.
In October, 1992, S1 again changed complainant's work schedule and took
him out of the scheduled rotation. Complainant consequently filed a second
grievance on this matter. Also in October, 1992, shortly following the
filing of the grievance, complainant suffered a �nervous breakdown� as a
result of the alleged stress caused by his supervisors. He was diagnosed
as suffering from clinical depression and went on medical leave because
he could not perform his job duties.
In November, 1992, complainant gave his second-line supervisor (S2)
a letter from his psychiatrist (P1), which stated that complainant
was being treated for depression and may be able to return to work in
mid-December, 1992. On November 25, 1992, complainant submitted to S2,
the Chief of Police, a request for advanced sick leave. In his request,
complainant stated that he was requesting 92 � hours advanced sick leave
and that he should be able to return to work by mid-December, 1992.
On December 8, 1992, P1 wrote to S2 advising him that complainant was
recovering from depression and, additionally, had a learning disability.
It was P1's opinion that complainant should not return to the highly
stressful situation associated with his previous job placement.
The agency denied complainant's sick leave on December 14, 1992.
Complainant returned to work in January, 1993.
On or about February 3, 1993, S1 wrote out a negative Progress Review and
indicated that complainant �needs improvement.� Prior to this incident,
complainant had always been rated �Fully Successful.� Complainant spoke
with his Union Representative who was able to get the Progress Review
removed from his Personnel file.
The record also shows that in February, 1993, S1 publicly shouted at
complainant in front of his fellow officers during a staff meeting.
Complainant was extremely upset by the incident and went to see the
agency's staff psychologist (P2). Just prior to complainant filing
a formal complaint, the Union President called complainant to resolve
the matter. The matter was resolved by complainant being reassigned to
the EMS Section. Complainant believed this assignment was temporary
while he was recovering from his depression. However, a few agency
witnesses understood that it was a permanent reassignment. On March 4,
1993, complainant began his Housekeeping position.
In July, 1993, P1 sent a letter to Personnel stating that complainant was
able to return to his Police Officer duties, his depression was treated
and over, and he had a learning disability for which he took Retilin.
Complainant was advised by Personnel that he had to apply for a Police
Officer position which was vacant. Complainant submitted an application.
Complainant was one of four candidates qualified for the Police Officer
position, however the position was never filled and eventually canceled.
In April or May, 1995, the Police Officer position was re-posted as
a permanent part-time position and a permanent full-time position.
Complainant applied for both positions. The full-time position was
subsequently canceled. Complainant and Candidate 1 (C1) were the only
candidates for the part-time position. C1 was selected.
The Commission found reprisal with respect to the denial of advanced
sick leave in December, 1992, the negative Progress Review in February,
1992 and the non-selection in May, 1995 and ordered the agency to (1)
retroactively promote petitioner to the position of Police Officer
GS-5, or a substantially similar position, retroactive to May 11, 1995;
(2) determine the appropriate amount of back pay, interest, and other
benefits due petitioner; (3) conduct a supplemental investigation into
what compensatory damages petitioner may be entitled to as a result of
the reprisal discrimination; (4) award attorney's fees; and (5) take
corrective, curative and preventive action to ensure that reprisal
discrimination does not recur, including training to the responsible
management officials. In an effort to comply with our order, the agency,
inter alia, conducted a supplemental investigation into the issue of
compensatory damages. Following an investigation, the agency issued an
FAD which determined that complainant was not entitled to compensatory
damages. It is this decision from which complainant now appeals.
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 evidence
that will allow an agency to assess the merits of a complainant's request
for compensatory damages. See Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993). In addition, compensatory damages may
be only be awarded for past pecuniary losses, future pecuniary losses,
and non-pecuniary losses which are directly or proximately caused by the
agency's discriminatory conduct. Rountree v. Department of Agriculture,
EEOC Appeal No. 01941906 (July 7, 1995).
The record indicates that complainant, complainant's wife, complainant's
daughters, two of complainant's former co-workers in the Police and
Security Department, two of complainant's former supervisors in the EMS
Section, a former EEO counselor, an employee relations specialist, and
the agency attorney who represented the agency at the hearing provided
affidavits on the issue of compensatory damages.
In the FAD, the agency denies any award of compensatory damages because
complainant failed to prove that his damages were proximately caused by
the agency's retaliatory conduct.<3> Specifically, the agency found
that complainant's medical/psychological problems antedated December,
1992 (the date of the first incident of discrimination). The agency
notes that the only affidavits that date the changes in complainant's
personality are those of complainant and his wife. Both individuals
state that the emotional problems began before December, 1992 and even
as far back as 1991. The agency psychologist compared complainant as he
had examined him in 1989 with complainant as he examined him in October,
1992, with a later contact on November 30, 1992.<4> Thus, the agency
found that complainant's psychological problems were not caused by its
retaliatory actions.
In addition, the agency determined that complainant failed to produce
evidence that his pre-existing medical/psychological problems were
exacerbated by the denial of sick leave, the progress review or the
non-selection. The agency notes that complainant was represented by
an attorney who was notified in writing that �if the medical condition
existed prior to the discrimination, [complainant] must submit medical or
other credible evidence indicating whether or not the condition worsened
as a result of the discrimination, the length of time he had the condition
prior to the discrimination, and the type of medical treatment received
for the condition, and who provided the treatment.� The agency also
noted that testimony, mainly from complainant and his wife, indicated
that complainant suffered from embarrassment and mental distress over
not having a job. However, the agency found that the evidence indicates
that such embarrassment and distress was the result of complainant's
voluntary resignation in November, 1993, rather than any retaliatory
action by the agency.
The agency also found that there was no pecuniary loss suffered due to the
retaliatory conduct and that complainant's financial and credit problems
were the result of his voluntary resignation (not at issue herein).
In addition, even if the complainant had successfully proven that
his financial difficulties were the proximate cause of the retaliatory
conduct of the agency rather than his voluntary resignation, the agency,
nevertheless, found that complainant failed to present evidence supporting
a specific value of such loss. For example, the complainant failed to
present a value of the alleged deterioration of his home,<5> or the value
of the damaged pipes<6> that were caused by the failure of complainant
to afford propane for his central heating.
For the reasons set forth above, the agency determined that complainant
failed to prove entitlement to any compensatory damages.
After a review of the record in its entirety, the Commission finds that
the agency's decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Accordingly, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM the
agency's final decision finding complainant not entitled to compensatory
damages because the preponderance of the evidence of record does not
establish that complainant's damages were proximately caused by the
retaliatory conduct of the agency.
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:
October 11, 2000
______________________________
Carlton M. Hadden, 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Commission did not find disability discrimination.
3 In addition, the agency noted that much of complainant's evidence
deals with compliance and new reprisal issues (i.e., claims about
actions, failure to act or other incidents which allegedly occurred
after complainant was placed back into his position as ordered by the
Commission), rather than issues relevant to his compensatory damages
claim.
4 The only medical/psychological evidence in the record that post-dates
the initial retaliatory act (December, 1992) shows complainant's mental
health improving.
5 The agency suggested that this could have been done by providing copies
of the tax assessments on the house.
6 The agency suggested that this could have been done by providing repair
bills or estimates.