01A11618
03-19-2003
Larry A. Sindel, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Larry A. Sindel v. Department of Veterans Affairs
01A11618
March 19, 2003
.
Larry A. Sindel,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11618
Agency No. 96-1750
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The Commission previously issued a decision finding that the agency
discriminated against complainant in reprisal for prior EEO activity
under Title VII when it issued him a letter of admonishment on June 4,
1996 for creating a hostile work environment in his division.<1> Larry
A. Sindel v. Department of Veterans' Affairs, EEOC Appeal No. 01985810
(May 12, 2000). The Commission ordered the agency, in relevant part,
to investigate complainant's claim for compensatory damages and to issue
a final agency decision (FAD) determining complainant's entitlement to
such damages.
In a FAD dated December 7, 2000, the agency awarded complainant
compensatory damages in the amount of $500. The agency noted that
complainant had not submitted any documentary evidence to support his
entitlement to pecuniary, or �out of pocket,� damages. Complainant
then filed the instant appeal, reiterating his request for $500,000 in
non-pecuniary damages, and attorney's fees of $1600 to date incurred in
pursuit of the compensatory damages award.
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in the
Commission's enforcement guidance Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991 (July 14,
1992) (Damages 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. Dept. 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. EEOC Notice No. N 915.002 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. Dept. 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.
In the instant case, the evidence submitted by complainant in support
of his claim for non-pecuniary damages consisted of statements from
complainant, complainant's girlfriend, and complainant's former
EEO representative. The agency submitted a rebuttal statement
from complainant's second-level supervisor, the agency official who
had issued the letter of admonishment at issue when he was Acting
Adjudication Officer (AAO). It is noted that complainant has submitted
no documentation to support a claim for pecuniary damages; as such,
pecuniary damages will not be considered.
Complainant's statement referenced past actions by the agency which were
not a part of the Commission's finding of discrimination, including a
non-selection which led to an unsuccessful civil suit. Complainant
stated that he believed AAO was �after his job,� i.e., wanted to
remove complainant. Complainant stated that the admonishment affected
his interactions with his coworkers for fear that the agency would
misconstrue his conduct and take action against him. Complainant stated
that, on account of the letter of admonishment, his coworkers perceived
him as a �murderer or potential murderer,� and that he was �shunned.�
Complainant stated that he had trouble sleeping, and that the admonishment
angered him. Complainant did not seek medical treatment or counseling
on account of the admonishment, and did not use any leave in connection
with the admonishment. Complainant stated that the admonishment had
an �extreme negative impact� on his career because it labeled him as a
potential murderer. Complainant stated that the admonishment had �some
impact� on his ability to do his job, but noted that his performance
rating remained at �highly successful.� Complainant stated that the
admonishment �probably affected� his relationship with his son, causing
him to be less tolerant of his son's �rowdiness� out of concern that his
son's conduct could be �misread,� and to counsel his son on his conduct.
Complainant further stated that the admonishment affected his relationship
with his girlfriend, because it �made her kind of wonder is there any
truth to this sort of thing ....� Complainant stated that the effects
of the admonishment lasted until mid-May of 2000, when he received the
Commission's finding of discrimination.
Complainant's girlfriend, CT, stated that complainant had trouble sleeping
and was frustrated more easily. CT did not specify how long these
conditions persisted. CT stated that she thought that the admonishment
still bothered complainant. CT also referenced complainant's long-term
perception that the agency was out to get him.
The AAO stated that complainant did receive a promotion subsequent to
the letter of admonishment, and that he was had not been made aware of
any decrease in complainant's job performance. Regarding the behavior
of complainant's coworkers toward him, the AAO stated that complainant
had not been a �social butterfly� prior to the admonishment. The AAO
stated that he was not aware of any change in complainant's dealings
with his coworkers, but acknowledged that he did not work directly
with complainant.
Based upon the foregoing, the Commission finds that the evidence submitted
by complainant does not support an award of compensatory damages greater
than $500. This amount is adequate to compensate complainant for the
harm shown to be causally related to the admonishment, as opposed
to other actions of the agency not at issue herein and complainant's
unsuccessful civil action. Further, the amount of the award meets the
goals of not being �monstrously excessive� standing alone, not being the
product of passion or prejudice, and being consistent with the amount
awarded in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827,
848 (7th Cir. 1989); US EEOC v. AIC Security Investigations, Ltd.,
823 F.Supp. 573, 574 (N.D. Ill. 1993); Wallis v. United States Postal
Service, EEOC Appeal No. 01950510 (November 13, 1995); see also Price
v. Department of Agriculture, EEOC Appeal No. 01995310 (May 9, 2002);
req. for recon. den., EEOC Request No. 05A20866 (September 4, 2002)
($250 non-pecuniary damages awarded where denial of leave request caused
complainant to require medication for anger and anxiety); Jojola-Jemison
v. United States Postal Service, EEOC Appeal No. 01970027 (October 8,
1998) ($500 non-pecuniary damages awarded where harassment resulting
in marital strain, injury to personal and professional standing,
depression, sleeplessness, anxiety, loss of self-esteem, and damage to
general health).
The Commission notes that complainant has requested attorney's in
connection with the award of compensatory damages. Complainant may be
entitled to attorney's fees in connection with the submission of his claim
for compensatory damages to the agency. However, because the Commission
has not awarded complainant any further relief, he is not entitled
to attorney's fees incurred in connection with the instant appeal.
See Baldwin v. Department of Health and Human Services, EEOC Request
No. 05910016 (April 12, 1991); Jansen v. Department of the Navy, EEOC
Request No. 05880641 (December 20, 1988). Complainant is advised to
submit a fee petition in accordance with the paragraph below entitled,
�Attorney's Fees.�
ORDER (C0900)
The agency is ordered to take the following remedial action:
If it has not already done so, within thirty (30) days of the date on
which this decision becomes final, the agency shall tender to complainant
compensatory damages in the amount of $500.
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 corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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.
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
March 19, 2003
__________________
Date
1The charge was based on alleged threatening conduct toward a coworker.