07a00023
08-10-2000
Kelvin Booker, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance Accounting Service), Agency.
Kelvin Booker v. Defense Finance Accounting Service
07A00023
August 10, 2000
Kelvin Booker, )
Complainant, )
) Appeal No. 07A00023
v. ) Agency Nos. DFAS-DE-DENV-97-003;
) DFAS-DE-DENV-96-027
) Hearing Nos. 320-97-8213X;
William S. Cohen, ) 320-97-8481X
Secretary, )
Department of Defense, )
(Defense Finance Accounting Service), )
Agency. )
______________________________________)
DECISION
Following its March 31, 2000 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).<1> On appeal,
the agency requests that the Commission affirm its rejection of an
EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the bases of his race (Black), sex (male) and in
retaliation for prior EEO activity. The agency also requests that the
Commission affirm its rejection of the AJ's order to pay complainant
$195,000.00 in damages for emotional harm sustained as a result of the
agency's actions.
Complainant, a Management Analyst employed by the Defense Finance
Accounting Service, filed two formal EEO complaints with the agency
on July 25, 1996 and October 25, 1996, alleging that his position was
reclassified and he was disciplined in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<2> At
the conclusion of the investigation, complainant was provided a copy of
the investigative report and requested a hearing before an AJ.<3>
Following a hearing, the AJ found that complainant established: (1)
a prima facie case of race, sex and reprisal discrimination when his
position was reclassified from a GS-09 to a GS-07 position in August
1996; and (2) a prima facie case of race and reprisal discrimination when
the agency issued him an "Order To Restrain Contact" in August 1996.<4>
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its actions by stating that it did not have the workload
required to support a GS-09 position and that complainant and his
supervisor needed to be separated due to the increased tension in
their relationship. The AJ concluded that complainant established
that more likely than not, the reasons provided by the agency were a
pretext for discrimination. In reaching this conclusion, the AJ found
that management's testimony regarding both the reclassification and the
"Order to Restrain Contact" was internally inconsistent, not credible
and evasive. The AJ specifically found that management's perception
of complainant as a "troublemaker" with a "reputation" was because of
his prior EEO activity. The AJ ordered the agency to take corrective
action and to pay complainant $195,000.00 in damages for emotional
harm, including the effects of increased alcohol consumption, extreme
depression, despondency and inclination towards suicide as a result of
the agency's discriminatory actions.
The agency's final order rejected the AJ's decision. On appeal, the
agency argues that the AJ erred in his interpretation of the facts and
misconstrued the testimony presented by management during the hearing.
The agency argues that even if the Commission finds that discrimination
occurred, the complainant did not provide adequate evidence to sustain
an award of compensatory damages and, in the alternative, that the AJ's
award of $195,000.00 is excessive.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405(a)), all post-hearing factual findings by an AJ will be
upheld if supported by substantial evidence in the record. Substantial
evidence is defined as �such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.� Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, we discern no basis to disturb
the AJ's finding of discrimination. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws. While we note the agency's obvious
disagreement with the AJ's conclusions, we are not persuaded the agency's
re-characterization of the evidence. Thus we turn to the issue of
compensatory damages.
A. Legal Standards for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes his or her 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 this
agency, the limit of liability for future pecuniary and non-pecuniary
damages is $300,000.00. Id. In West v. Gibson, 527 U.S. 212 (1999),
the Supreme Court held that the Commission has the authority to award
compensatory damages in the federal sector EEO process.
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in EEOC's
Enforcement Guidance, Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (Guidance).
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. Id. at 11-12, 14; Rivera v. Department. of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded
should reflect the extent to which the agency's discriminatory action
directly or proximately caused harm to the complainant and the extent
to which other factors may have played a part. Guidance at 11-12.
The amount of non-pecuniary damages should also reflect the nature and
severity of the harm to the complainant, and the duration or expected
duration of the harm. Id. at 14.
In Carle v. Department. of the Navy, the Commission explained
that �objective evidence� of non-pecuniary damages could include a
statement by the complainant explaining how he or she was affected
by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993).
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could
also submit documentation of medical or psychiatric treatment related
to the effects of the discrimination. Id. However, evidence from a
health care provider is not a mandatory prerequisite to establishing
entitlement to non pecuniary damages. Sinnott v. Department of Defense,
EEOC Appeal No. 01952872 (September 19, 1996).
The Commission applies the principle that �a tortfeasor takes its victims
as it finds them.� Wallis v. United States Postal Service, EEOC Appeal
No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button
Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). The Commission also
applies two exceptions to this general rule. First, when a complainant
has a pre-existing condition, the agency is liable only for the
additional harm or aggravation caused by the discrimination. Second, if
the complainant's pre-existing condition inevitably would have worsened,
the agency is entitled to a reduction in damages reflecting the extent to
which the condition would have worsened even absent the discrimination;
the burden of proof being on the agency to establish the extent of this
entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United
States, 668 F.2d 98 (2d Cir. 1981); Finlay v. United States Postal
Service, EEOC Appeal No. 01942985 (April 29, 1997). The Commission
notes, however, that complainant is entitled to recover damages only
for injury, or additional injury, caused by the discriminatory removal.
Terrell v. Department. of Housing and Urban Development, EEOC Appeal
No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002 at 12.
Non-pecuniary damages are available 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). Emotional harm will not be
presumed simply because the complainant is a victim of discrimination.
See Guidance at 5. The existence, nature, and severity of emotional
harm must be proved. Id. The method for computing non-pecuniary
damages should typically be based on a consideration of the severity and
duration of harm. Carpenter v. Department of Agriculture, EEOC Appeal
No. 01945652 (July 17, 1995); Guidance at 8. We note that for a proper
award of non-pecuniary 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)).
B. Complainant's Evidence
Complainant testified that he was very hurt and confused by the way
his supervisors treated him. He testified that on a daily basis he
was either being written up, receiving oral reprimands or having his
work sabotaged. His home life deteriorated, and his alcohol consumption
increased. Complainant also testified that he became argumentative with
his girlfriend and refused to communicate with her.
Complainant's brother (CB) testified that at the time of the
reclassification and discipline, he communicated daily with
complainant who began drinking heavily. CB stated, for example, that
he and complainant would start a conversation during the day about an
incident giving rise to complainant's stress and that later that evening
complainant would typically call, "really going on about this situation
and you could tell that he was intoxicated." H.T. at 454. CB testified
that complainant's self esteem was at rock bottom; that he believed he
was completely unworthy; and that there were numerous threats of suicide.
H.T. at 451-52, 455. CB testified to three suicide attempts: one in
which complainant ingested fingernail polish and bleach; one in which
he cut an artery under his elbow wherein "blood spewed out of his arm
like a fountain;" and one in which he overdosed on prescription drugs.
H.T. at 457-461. All three incidents resulted in complainant being
taken to the hospital. CB further testified that their parents raised
them with a work ethic which demanded that if they do a job, they do it
right; that complainant took a lot of pride in his job; that it meant
very much to him. H.T. at 462.
Complainant's co-worker (CW) testified that complainant was extremely
depressed and at times despondent at work. She stated that everybody
in the work area expressed some degree of concern for him. CW further
testified that she received a phone call at home from complainant, who
had never called her before, wherein he was very despondent and upset,
"trying to figure out how everything could have just fallen apart."
When CW's husband came home, she transferred the complainant to her
husband who had worked as a crisis hot line worker. He concluded that
complainant was suicidal, and CW coaxed complainant into meeting her
at a hospital where he was admitted for observation for approximately
three days. H.T. at 54-56.
On appeal, the agency argues that complainant did not provide adequate
evidence to support his claim for damages because: (1) on a checklist,
he indicated that he suffered from inconvenience, indignity, loss of
self esteem, depression, grief, isolation, and loss of enjoyment of
life; and (2) he provided his own testimony and that of his brother
and co-worker. The agency contends that complainant gave no detail
concerning the duration or severity of his emotional distress and that
it is implausible that his third divorce, his filing for bankruptcy and
his step father's death did not significantly contribute to his alleged
depression. We note that both complainant and his brother testified
that it was the all consuming and deteriorating situation at work which
was causing complainant to suffer emotionally and that the agency did
not provide any evidence, beyond its mere assertion, that complainant
must have been affected by other stressful circumstances
Several Commission decisions have awarded significant compensatory
damages. See generally Mack v. Department of Veterans Affairs, EEOC
Appeal No. 01983217 (June 23, 2000) ($185,000.00 in non-pecuniary damages
where complainant was stripped of all of his worldly goods, including his
home, which resulted in his being twice beaten and robbed, succumbing to
the lure of illegal drugs, and having increased depression and worsened
emphysema requiring multiple medications); Santiago v. Department of
the Army, EEOC Appeal No. 01955684 (Oct. 14, 1998) ($125,000.00 in
non-pecuniary damages where complainant suffered depression and other
emotional and mental disorders, and severe chest and stomach pains,
digestive problems, and incidents of shortness of breath); Finlay
v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997)
($100,000.00 in non-pecuniary damages where complainant experienced post
traumatic stress disorder, major depression, severe stress and various
physical problems); McCann v. Department of the Air Force, EEOC Appeal
No. 01971851 (October 23, 1998) ($75,000.00 in non-pecuniary damages
where complainant presented evidence of feelings of psychological
numbness, anger, insomnia, depression, flashbacks, nightmares, fear,
fatigue, diminished pleasure in activities, some social withdrawal,
less confidence on the job and a constant fear of unjustified job loss).
The AJ, who had the opportunity to observe the witnesses, considered the
severity of the harm caused by the agency's action; discounted the value
he assigned to it for any pre-existing condition that may have existed
or was exacerbated by other stress factors in his life; and determined
that $195,000.00 was a reasonable amount to compensate complainant.
Upon review, the Commission finds that although complainant did not
present evidence concerning the duration of his depression, his three
attempts at suicide and his voluntary hospitalization for observation
support the AJ's finding that the severity of the emotional harm sustained
by complainant warranted a large monetary award. We are unpersuaded by
the agency's argument that the credible testimony provided at the hearing
was insufficient to establish the causal relationship between the agency's
discriminatory action and complainant's emotional distress or that
other personal problems played a significant role in the deterioration
of complainant's emotional health. However, the Commission finds that
the AJ's award is excessive compared with awards given in cases where
complainants have experienced similarly severe emotional distress.
Accordingly, the Commission finds that complainant is entitled to
non-pecuniary damages in the amount of $150,000.00.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
reverses the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
ORDER below.
ORDER
1. The agency shall rescind the reclassification and place complainant
at the grade level he occupied prior to the discriminatory action,
and determine the appropriate amount of back pay and other benefits due
complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. 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 complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due.
2. The agency shall expunge the "Order to Restrain Contact" from
complainant's employment records no later than sixty (60) calendar days
after the date this decision becomes final.
3. The agency shall conduct training for its supervisory personnel at
its Denver, Colorado facility regarding their obligations under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
4. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall pay complainant $150,000.00 in non-pecuniary
compensatory damages.
5. 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 verifying
that the foregoing corrective actions have been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Denver, Colorado facility 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.
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.
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:
August 10, 2000
Date Carlton M. Hadden, 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 The Merit Systems Protection Board dismissed complainant's appeal for
lack of jurisdiction over the agency's decision to reclassify a position.
See MSPB Docket No. DE-0752-97-0564-I-1 (July 29, 1997).
3 The Hearing Transcript will be hereinafter referred to as H.T.
4 The Administrative Judge determined that complainant failed to establish
he was aggrieved by the agency's decision to have a security guard stand
outside the door of a room wherein complainant and the named responsible
management officials were meeting in May 1996.