01A32890
07-15-2004
Joseph W. Caneva, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Department of Defense Education Activity), Agency.
Joseph W. Caneva v. Department of Defense
01A32890
July 15, 2004
.
Joseph W. Caneva,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Department of Defense Education Activity),
Agency.
Appeal No. 01A32890
Agency No. DE-FY00-06
Hearing No. 100-A1-7245X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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.
Complainant alleged that he was discriminated against on the basis
of sex (male) when he was not selected for the position of Supervisory
Management Specialist, GS-201-14, in the agency's Europe Area. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant was serving a one-year term as a
AD-1701 Professor of National Security Matters at the agency's Naval
War College (�facility�). While teaching at the facility, complainant
retained his position as a Personnel Management Specialist, GS-201-14,
with the agency. Complainant applied for the position at issue, located
in Wiesbaden, Germany and with a closing date of December 1, 1999,
but the Selecting Official (female) selected a female applicant (S1).
Believing he was the victim of discrimination, complainant sought EEO
counseling and field a formal complaint with the agency on June 6, 2000.
The EEOC Administrative Judge (AJ) held a hearing in the instant case,
and found that the agency's articulated reasons for S1 being selected for
the position were a pretext for discrimination based on sex. Pursuant to
his finding of discrimination, the AJ ordered that complainant be paid
$10,000.00 in non-pecuniary compensatory damages. While the AJ noted
that complainant did not request non-pecuniary damages, he found that
complainant's wife testified that he was disappointed he was not selected
for the position at issue, he was despondent and did not sleep well.
Complainant's wife stated that he was under stress after he was not
selected and considered leaving the government. The AJ also noted that
complainant stated he was extremely depressed when he found out that S1
was selected. The record established that complainant's relationship
with his wife were strained. In awarding complainant $10,000.00 in
non-pecuniary damages, the AJ noted that complainant presented no medical
evidence that he required medication, nor did he indicate the frequency or
length of time applicable to the adverse effects of the discrimination.
The AJ also ordered the agency to pay complainant $1,609.23 in past
pecuniary damages. The AJ further ordered the agency to appoint
complainant to the next available Supervisory Personnel Management
Specialist, GS-201-14 position, in addition to determining whether
complainant was due back pay and front pay, and providing training to the
management official(s) responsible for discriminating against complainant.
However, the AJ found that attorney's fees were not warranted, as there
was no evidence that he was represented by an attorney. The agency's
final order implemented the AJ's decision in full.
On appeal, complainant contends that the AJ erred in the remedies portion
of his decision when he: (1) failed to grant complainant pecuniary
damages associated with a move at his own expense; (2) the relief granted
complainant does not constitute make whole relief; (3) the FAD did not
precisely determine the relief warranted. We note that complainant has
not challenged the AJ's finding of discrimination, nor has he challenged
the AJ's remedies with regard to calculation of back pay or front pay,
training for the responsible management officials or attorney's fees.
Hence, complainant only challenges the AJ's award of pecuniary and
non-pecuniary compensatory damages. The agency has not responded to
complainant's appeal in the instant case.
After a careful review of the record, we find the AJ's award of $10,000.00
in non-pecuniary damages, and the AJ's award of $1,690.23 in pecuniary
damages was appropriate. To receive an award of compensatory damages,
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), request for reconsideration 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. N 915.002
at 11-12, 14 (July 14, 1992).
An award of compensatory damages for non-pecuniary losses, including
emotional harm, should reflect the extent to which the respondent
directly or proximately caused the harm, and the extent to which other
factors also caused the harm. The Commission has held that evidence from
a health care provider is not a mandatory prerequisite for recovery
of compensatory damages. Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995). Courts also have held that
"expert testimony ordinarily is not required to ground money damages
for mental anguish or emotional distress." Sanchez v. Puerto Rico Oil
Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita,
883 F.2d 842, 875 (10th Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512
n. 12 (7th Cir.), cert. denied, 454 U.S. 897 (1981). A complainant's own
testimony, along with the circumstances of a particular case, can suffice
to sustain his/her burden in this regard. See U.S. v. Balistrieri,
981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993)
(housing discrimination). Nonetheless, the absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases.
Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
The Commission notes that damage awards for emotional harm are difficult
to determine and that there are no definitive rules governing the
amount to be awarded in given cases. A proper award must meet two goals:
that it not be "monstrously excessive" standing alone, and that it be
consistent with awards made in similar cases. See Cygnar v. City of
Chicago, 865 F.2d 827, 848 (7th Cir. 1989). Further, Federal courts have
awarded compensatory damages in a wide range of amounts depending on the
facts of the particular case, and the supporting evidence presented. See,
e.g., Kuntz v. City of New Haven, 3 AD Cases 1590, 1592 (D.C. Conn. 1993),
aff'd. without opinion, 29 F.3d 622 (2d Cir. 1994), cert. denied sub nom.,
City of New Haven v. Kuntz, 155 S.Ct. 667 (1994) (award of $500.00 for
emotional distress based on testimony that plaintiff was "disappointed",
"cranky" with family and friends, "embarrassed" at not having been
promoted, and had many sleepless nights); Jackson v. Pool Mortgage
Co., 868 F.2d 1178 (10th Cir. 1989) ($24,421.00 award for depression,
muscle spasms, stomach pain, and hair loss following termination). In
addition, the Commission has awarded compensatory damages based on
the extent of the damages proved. See Wimberly v. USPS, EEOC Appeal
No. 01A23646 (May 29, 2003), request for reconsideration denied, EEOC
Request No. 05A30980 (September 22, 2003) ($8,500 awarded for stress,
embarrassment, humiliation, and financial difficulties following the
denial of reasonable accommodation where there was evidence of other
contributing factors); Williams v. USPS, EEOC Appeal No. 01985775 (August
30, 2001) ($8,000 awarded based upon testimony that complainant felt bad
about himself when he was denied accommodation, and lost self-esteem,
experienced mental anguish, injury to his character, and marital
difficulty, but that other factors contributed to his condition).
Based upon the foregoing, and considering the nature and severity of
the harm to complainant, and the actual duration of the harm, we find
that the agency's award of $10,000.00 in non-pecuniary compensatory
damages is appropriate. As found by the AJ, complainant stated that
following his non-selection for the position at issue, complainant's
wife stated that he was very despondent upon not being selected for
the position and did not sleep well. Hearing Transcript (HT) at 12.
She further stated at the hearing that complainant had a high level of
stress after he learned that he had not been selected. Id. Complainant
stated at the hearing that he became extremely depressed after learning
that he had not been selected for the position. HT at 120. He further
stated that he was depressed about not being able to live and work in
Europe, and his relationship with his wife suffered. HT at 117, 120.
Although the AJ noted that complainant presented no medical evidence
of depression or that he required medication, nevertheless, the hearing
testimony shows that the non-selection changed complainant's personality,
such that complainant experienced a loss of enjoyment
of life, inability to focus, difficulty sleeping, and depression.
The amount awarded by the AJ takes into account the severity of the harm
suffered, and is consistent with prior Commission precedent. See Mullins
v. United States Postal Service, EEOC Appeal No. 01954362 (May 22, 1997)
($10,0000.00 award where complainant's depression and other emotional and
mental disorders were direct result of sexual harassment and reprisal);
Jones v. Department of Defense, EEOC Appeal No. 01973551 (April 14, 2000)
($9,000.00 award based on complainant's statements of the interference
with family and marital relations, anxiety, sleeplessness and exhaustion
resulting from the agency's discrimination); Guerra v. United States
Postal Service, EEOC Appeal No. 01982149 (July 19, 2000) ($10,000.00
award for physical and emotional harm in the form of exacerbation of
physical impairments, and stress caused by a supervisor's inappropriate
sexual behavior, solicitation and continued harassment).
With regard to complainant's claim for past pecuniary damages, the
Commission agrees with the AJ that complainant is entitled to $1,690.23
for moving expenses related to his nonselection. Complainant alleges
that he should have been compensated for all expenses related to his
move from Newport, Rhode Island to his official position at agency
headquarters in Arlington, Virginia following the non-selection,
such as telephone connection service, long distance service, utility
start-up costs. Complainant also sought reimbursement for vehicle
tax bills assessed by the state of Virginia. We concur with the AJ's
finding that complainant has failed to proffer evidence demonstrating
that he would not also have had to incur similar expenses if he had
been selected for the position at issue and moved to Germany. Further,
despite complainant's numerous contentions, we concur with the AJ's
finding that complainant is not entitled to living quarters allowances
applicable to being posted in Germany, since he did not actually incur
the expense of living overseas. Kimura v. Dept.of Transportation, EEOC
Appeal No. 01A14784 (Feb. 12, 2002)(complainant is not entitled to recover
a Cost of Living Allowance or Post Allowance for the period of time he
would have been living overseas had he not been discriminated against).
While complainant alleges that the agency failed to demonstrate that
he would have experienced certain expenses had he been selected for the
position in Germany, we find that the AJ correctly noted that the burden
is on complainant to demonstrate that the expenses he incurred in Virginia
would not have been incurred but for the discrimination. Further, we note
the AJ's finding that complainant did not submit any documentation about
future pecuniary damages. Thus, complainant is entitled to an award of
$1,690.23 in past pecuniary damages.
Complainant also alleges on appeal that as of May 14, 2003, he had
not received a job offer from the agency, despite the Commission's
order stating that he was to be offered the next available Supervisory
Personnel Management Specialist, GS-201-14 position, or a substantially
equivalent position in Germany or at any other office mutually agreed
to by complainant and the agency. To the extent that the AJ's order
has not been complied with by the agency, the Commission will restate
the AJ's order in the instant decision such that the agency will comply
with the order to the extent it has not already complied.
ORDER
To the extent these actions have not already been done, the agency is
ORDERED to take the following remedial action:
1. Within thirty (30) calendar days of this decision becomes final,
the agency shall appoint complainant to the next available Supervisory
Personnel Management Specialist position, GS-201-14, or a substantially
equivalent position, in Wiesbaden, Germany or any other office mutually
agreed to by complainant and the agency. Complainant shall be given a
minimum of thirty (30) days from the receipt of the offer to accept or
decline the offer. Failure to accept the offer within the time period
set by the agency will be considered a rejection of the offer, unless
complainant can show that circumstances beyond his control prevented a
response within the time limit. Complainant's personnel records shall
be adjusted to reflect his seniority in the position as of the date when
the position was filled by the Selectee.
2. The agency shall determine the appropriate amount of back pay and
front pay, with interest, and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date of the final decision. The front pay shall be awarded until
complainant has been placed in the appropriate position, as stated above.
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, front 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 of the agency's receipt
of this decision for the amount the agency determines 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."
3. The agency shall provide training in the obligations under Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. to the agency management official(s) responsible for the
discriminatory nonselection of complainant. The agency shall address
the management officials responsibilities with respect to eliminating
discrimination in the workplace and management responsibilities under
Title VII.
4. The agency shall pay complainant $10,000.00 in non-pecuniary
compensatory damages and $1,690.23 in past pecuniary damages, less any
amounts already paid. Such payment shall be made within thirty (30)
days of the date this decision becomes final.
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 evidence that corrective action has
been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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) (1994 & Supp. IV 1999). 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 Wiesbaden, Germany office and
its Arlington, Virginia Headquarters, copies of the attached notice.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
July 15, 2004
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions,
or privileges of employment.
The agency's facilities in Wiesbaden, Germany and Arlington, Virginia,
(hereinafter referred to as "facilities") support and will comply with
such Federal law and will not take action against individuals because
they have exercised their rights under law.
The facilities have been found to have discriminated against an employee
on the basis of sex when the employee was not selected for a position.
The facility was ordered to: (1) appoint the employee to the next
available position comparable to the position he was not selected for; (2)
determine the proper amounts of back pay and front pay to be paid to the
employee; (3) provide training to the responsible management official(s);
(4) pay the employee $10,000.00 in non-pecuniary compensatory damages
and $1,690.23 in past pecuniary damages; and (5) post this notice.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614