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).