Kelvin Booker, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Finance Accounting Service), Agency.

Equal Employment Opportunity CommissionAug 10, 2000
07a00023 (E.E.O.C. Aug. 10, 2000)

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.