Kenneth W. Dodsonv.Department of Defense (National Imagery and Mapping Agency) 01995855 August 15, 2000 . Kenneth W. Dodson, Complainant v. William S. Cohen Secretary Department of Defense (National Imagery and Mapping Agency) Agency.

Equal Employment Opportunity CommissionAug 15, 2000
01995855 (E.E.O.C. Aug. 15, 2000)

01995855

08-15-2000

Kenneth W. Dodson v. Department of Defense (National Imagery and Mapping Agency) 01995855 August 15, 2000 . Kenneth W. Dodson, Complainant v. William S. Cohen Secretary Department of Defense (National Imagery and Mapping Agency) Agency.


Kenneth W. Dodson v. Department of Defense (National Imagery and Mapping

Agency)

01995855

August 15, 2000

.

Kenneth W. Dodson,

Complainant

v.

William S. Cohen

Secretary

Department of Defense

(National Imagery and Mapping Agency)

Agency.

Appeal No. 01995855

Agency Nos. 94-02, 94-04, 94-05, 94-06, 94-07

DECISION

On July 2, 1998, the complainant filed an appeal with this Commission

from a final decision of the agency dated June 11, 1998<1> concerning his

complaint of unlawful employment discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.

The appeal is timely and is accepted under 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified as 29 C.F.R. � 1614.405).<2>

The issue presented is whether the agency properly found that the

complainant did not prove he sustained any compensatory damages.

The complainant filed multiple complaints, alleging in relevant part,

that he was discriminated against regarding: the issuance of a letter

of reprimand in November 1993 (complaint 94-02); the manner in which the

agency revoked his security clearances in December 1993 (complaint 94-04);

being reassigned in December 1993 (complaint 94-05); receiving a letter

directing him to report for a psychological examination in December 1993

(complaint 94-06); and a letter rescinding the psychological examination

and reciting the reassignment being sent to his mother's home (complaint

94-07). These matters were ultimately appealed to the Commission, which

found reprisal discrimination.<3> Thereafter, the Commission denied the

agency's request for reconsideration.<4>

After finding discrimination, the Commission remanded the complaint

back to the agency for, in relevant part, development of the record

on the issue of compensatory damages. On remand, the agency sent the

complainant a letter asking him to give evidence on compensatory damages

and explaining how to do this.

The complainant responded by asking for $500,000 in compensatory damages.

The response gave no information on the severity or duration of emotional

injuries.<5> Previously, the complainant stated he was humiliated

when he was publicly escorted out of the building after his security

clearances were revoked. The agency's final decision of June 11,

1998 found that the complainant failed to prove he was entitled to

compensatory damages.<6>

Compensatory damages may be awarded for nonpecuniary losses, the type

of losses at issue here, that are directly or proximately caused by

the agency's discriminatory conduct. Nonpecuniary losses are losses

that are not subject to precise quantification including emotional pain

and loss of health. Compensatory and Punitive Damages Available Under

Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002

(July 14, 1992).<7>

An award of compensatory damages for nonpecuniary losses should reflect

the nature and severity of the harm and the duration or expected duration

of the harm. Further, a complainant must establish a nexus between the

harm and the discrimination found.

The Commission denied a complainant's claim for nonpecuniary damages

where a complainant offered no specific or anecdotal evidence to support

an injury. McGill v. Department of the Navy, EEOC Appeal No. 01956384

(September 3, 1998) (complainant stated without corroborating evidence

that his non-selection for a collateral duty position resulted in a

loss of enjoyment of life). In Jojola-Jemison v. United States Postal

Service, EEOC Appeal No. 01970027 (October 8, 1997) a complainant was

discriminatorily harassed between 1990 and April 1992 when she was stared

at by her supervisor while casing mail, causing her to feel humiliated.

The complainant testified that as a result of the supervisor's conduct

she had severe anxiety and depression. In awarding $500 in nonpecuniary

damages, the Commission reasoned that there were intervening events which

caused emotional distress, and the complainant did not submit any medical

evidence that the emotional distress was attributable to the humiliation

she experienced by being closely scrutinized by her supervisor.

In Jojola-Jemison, the Commission awarded $500 for feelings of humiliation

that occurred over a five month period.<8> The instant complainant felt

humiliated when he was escorted from the building. There is no evidence

that this one time occurrence caused something other than a momentary

feeling of humiliation, or that the feeling was strong. Given this,

the complainant has not shown he is entitled to compensatory damages.

The complainant's request for compensatory damages is denied.

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 (S0400)

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

August 15, 2000

__________________

Date

1The original decision was dated June 9, 1998, but inadvertently did

not contain appeal rights. The agency issued appeal rights by letter

dated June 11, 1998.

2On 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.

3Dodson v. Department of Defense (National Imagery & Mapping Agency),

EEOC Appeal Nos. 01954097, 01954101, 01954134, 01954138, 01954156,

01954192 and 01954235 (June 13, 1997).

4Dodson v. Department of Defense (National Imagery & Mapping Agency),

EEOC Request Nos. 05980113-117 (March 12, 1998).

5 In his response, the complainant also asked for damages for lost

retirement annuities, lost health insurance, and lost life insurance.

But none of the discriminatory actions covered by this decision resulted

in such losses, so the complainant is not entitled to such relief in

this decision. The complainant was terminated from the agency effective

January 24, 1997 for absence without approved leave (AWOL), and his

request for damages for lost benefits is likely related to this. But the

removal action was not the subject of any of the complaints covered in

this decision.

6The decision ruled on other other matters which were addressed in

Dodson v. Department of Defense (National Imagery & Mapping Agency),

EEOC Petition No. 04980033 (January 14, 2000).

7This guidance is on the Commission's website at www.eeoc.gov.

8Damages are not available for acts of discrimination which occurred

prior to the passage of the Civil Rights Act of 1991 on November 21, 1991.

Landgraf v. USI Film Products, 511 U.S. 244 (1994).