01995560
02-21-2002
Paul Magestro, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Paul Magestro v. Department of Health and Human Services
01995560
February 21, 2002
.
Paul Magestro,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01995560
Agency No. FDA-382-94
Hearing No. 170-94-8589X
DECISION
INTRODUCTION
On June 29, 1999, Paul Magestro (complainant) initiated an appeal to
the Equal Employment Opportunity Commission (EEOC or Commission) from
the final decision (FAD) of the Department of Health and Human Services
(agency), 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 Commission hereby accepts
the appeal in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant was not entitled to compensatory damages or attorney's fees.
BACKGROUND
Complainant filed a formal complaint on February 14, 1994, claiming
that he had been unlawfully retaliated against for engaging in prior
EEO activity when, on December 17, 1993, he received a rating of Fully
Successful rather than Excellent for the performance period covering
October 1, 1992 through September 30, 1993. Following an investigation
and a hearing before an EEOC administrative judge (AJ), the AJ issued
a decision recommending a finding that complainant had been unlawfully
retaliated against for engaging in prior EEO activity when he was issued a
rating of Fully Successful rather than Excellent for his work performance
during Fiscal Year (FY) 1993. The AJ further recommended that the agency:
(1) change complainant's rating from Fully Successful to Excellent; (2)
provide complainant with any and all benefits, pay raises, cost of living
increases and career ladder promotions which he would have received had
he originally been rated as Excellent; and (3) provide complainant an
assurance that he would be free from reprisal in the future.
On June 29, 1995, the agency adopted the findings and conclusions of the
AJ and entered a finding of unlawful retaliation with regard to the FY
1993 performance rating. The agency made representations that it had
changed complainant's rating to Excellent and taken steps to provide
him with the corresponding $500.00 performance award. With respect to
the assurance against future reprisal, the agency noted that complainant
resigned from Federal service on January 12, 1994, and therefore, such
an assurance was no longer necessary.
On August 5, 1995, complainant filed an appeal with the Commission
alleging that the remedies provided by the agency were inadequate in two
respects: (1) he argued that he was entitled to an award of compensatory
damages; and (2) he asserted that the agency expressly failed to
provide him with any assurances that he would not be subjected to
future reprisal actions. In EEOC Appeal No. 01955880 (July 1, 1997),
the Commission affirmed the agency's final decision as to reprisal.
It ordered the agency to conduct a supplemental investigation into the
question of whether complainant should be awarded compensatory damages.
On remand, complainant argued in a September 1997 brief that he was
entitled to past pecuniary losses of $97,000 to include lost wages and
lost retirement benefits, future pecuniary losses of $500,000 to include
lost earning capacity, and non-pecuniary losses of $500,000 for emotional
pain and suffering, mental anguish, and loss of enjoyment of life.
He also claimed $23,600 for time spent and costs incurred in pursuing the
complaint and $300 in attorney's fees. The agency requested clarification
from complainant, and complainant claimed that he suffered mental anguish,
loss of health and enjoyment of life, injury to professional standing
and reputation, as well as sleeplessness, anxiety, stress, depression,
humiliation, loss of self-esteem and excessive fatigue. He further
claimed that the events affected his relationships because he was burdened
and depressed by his complaint. Finally, complainant asserted that his
injuries began at the time of the discriminatory incident.
The agency issued a second FAD on May 27, 1999, finding that complainant
was entitled only to $100.00 for costs incurred in the processing of
his complaint. The agency found that complainant's assertion that he
would have been promoted to the GS-12 level and received subsequent step
increases if he had received an Excellent performance evaluation was based
on speculation and did not support his claim of past pecuniary damages.
The agency further determined that complainant failed to establish a
nexus between the subject evaluation and his failure to be promoted to
the GS-12 level. With respect to complainant's claim of future pecuniary
losses, the agency concluded that complainant failed to allege that he
was constructively discharged, thereby negating the agency's need to
address those damages. The agency denied complainant's request for
attorney's fees, explaining that the AJ recommended that attorney's
fees not be awarded because complainant's attorney played no role in
the processing of the complaint.
This appeal followed. On appeal, complainant states that the agency
failed to acknowledge his last submission which elaborated upon his
emotional distress. With respect to the agency's finding that he failed
to establish a nexus between the subject evaluation and his failure
to be promoted to the GS-12 level, complainant argued that, since he
identified a specific promotion for which he was not selected, he had
carried his burden. Complainant further states that the evaluation
affected his promotion application because the agency required him
to send his most recent evaluation with his application. He noted
specifics statements in the evaluation which he believed prevented him
from getting the promotion or allowing him to transfer from his position.
Complainant also asserted that his health suffered because of the stress
he experienced, that he had difficulty sleeping, and that he worried
constantly about his performance. He stated that he felt profoundly
depressed, as well as purposeless and worthless.
ANALYSIS AND FINDINGS
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 the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Notice No. N
915.002, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992). 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. 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. 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.
B. Nexus Between Alleged Harm and Discrimination
Complainant averred that he suffered emotionally every day while dealing
with the performance evaluation. He stated that the pursuit of his
complaint dominated his life and affected the relationships close to him.
He further explained that he had no time for exercise or recreational
activities, and that his health suffered. Complainant believed that
the performance evaluation injured his professional standing because
he was less competitive for other positions, and he noted that the
responsible management official injured his character and reputation.
Complainant also stated that he had difficulty sleeping because he
constantly thought about work and was in fear of what was going to occur.
He explained that every day events for a chemist became very stressful
for him because of his fear that agency officials would make �pretextual
assertions of his deficiencies.� He averred that he was depressed,
lost his sense of the meaning of his work, suffered low self esteem,
and felt humiliated and isolated because of the �stigma of having a
complaint.� Finally, complainant noted that agency officials asked
complainant to undergo psychological counseling because of his mental
status after the performance evaluation.
Complainant's former colleague and friend described complainant
as optimistic and happy with his working relationships prior to the
performance evaluation. She stated that immediately after he received
the performance evaluation she saw that complainant was �hurt and dazed.�
She explained how one particular passage in the evaluation resulted
in complainant's belief that he was being singled out for reprisal.
She stated that complainant wanted to discuss every little abnormality
at work with her and would ask her at least once weekly what she thought
about his work problems. She stated that complainant became increasingly
depressed and continuously edgy, irritable, and tired. She stated that
even she started to avoid him.
Complainant has documented, through his statement and that of his
colleague, the emotional effect of the agency's discrimination. Based on
the evidence reviewed above, we find that complainant has established
that he experienced emotional distress which was caused by the agency's
retaliation against him for engaging in prior EEO activity when he was
issued a rating of Fully Successful rather than Excellent for his work
performance.
C. Calculation of Damages Payable
1. Future Pecuniary Damages
Regarding future pecuniary losses, complainant requested $500,000 to
include lost earning capacity. Lost earning capacity represents a
loss in one's future earning power. An award for the loss of future
earning capacity considers the effect that complainant's injury will
have on his ability in the future to earn a salary comparable with what
he earned before the injury. Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995); Williams v. Pharmacia Inc.,
956 F. Supp. 1457, 1467 (N.D. Ind. 1996). The Commission has previously
awarded future pecuniary damages for the loss of future earning capacity.
See Brinkley v. United States Postal Service, EEOC Request No. 05980429
(August 12, 1999); Finlay v. United States Postal Service, EEOC Appeal
No. 01942985 (April 29, 1997).
Proof of entitlement to loss of future earning capacity involves evidence
suggesting that the individual's injuries have narrowed the range of
economic opportunities available to him. Carpenter, supra. Generally, the
party seeking compensation for loss of earning capacity needs to provide
evidence which demonstrates with reasonable certainty or reasonable
probability that the loss has been sustained. Id. (citing Annotation,
Evidence of Impaired Earnings Capacity, 18 A.L.R.3d 88, 92 (1968)).
Here, we find that complainant has failed to show that the agency's
retaliation against him for engaging in prior EEO activity has narrowed
the range of economic opportunities available to him. Furthermore,
while complainant contends that he would have gained years of experience,
received numerous opportunities for transfers or promotions, and attained
a higher level of marketability, the record evidence establishes that
complainant resigned from his position in January 1995 and that the issue
of the alleged constructive discharge was not the basis for the current
award. Therefore, we find that complainant has failed to establish an
entitlement to an award for loss of future earning capacity.
2. Non-Pecuniary Damages
Complainant claimed that he should be awarded $500,000 in non-pecuniary
damages. Complainant submitted evidence, in the form of statements
from himself and an affidavit from a colleague, regarding the effect
the discrimination had on his mental well-being. Complainant asserted
that he experienced mental anguish, loss of health and enjoyment of life,
injury to professional standing and reputation, as well as sleeplessness,
anxiety, stress, depression, humiliation, loss of self-esteem and
excessive fatigue. He also stated that the circumstances surrounding the
performance evaluation dominated his life and affected the relationships
close to him.
Taking into account the evidence of non-pecuniary damages submitted
by complainant, the Commission finds that complainant is entitled to
non-pecuniary damages in the amount of $8,000.00. This amount takes
into account the evidence provided and the severity and duration of
the harm suffered, and is consistent with prior Commission precedent.
See Pailin v. Department of Defense, EEOC Appeal No. 019514350 (January
26, 1998) ($2,500.00 in non-pecuniary damages where complainant
was denied training on the basis of race, and testified that she
experienced tension, depression, and withdrawal from coworkers);
Benson v. Department of Agriculture, EEOC Appeal No. 01952854 (June
27, 1996) ($5,000 in non-pecuniary damages where the complainant,
his relatives, and his colleagues offered testimony regarding the
embarrassment and humiliation suffered as a result of discrimination);
Rountree v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7,
1995) ($8,000 award based on complainant's statement, and those of his
co-workers, concerning the emotional distress he experienced as a result
of a discriminatory performance rating).
Equitable Relief
Complainant requested $97,000 to include lost wages and lost retirement
benefits, which he calculated by ascertaining the difference between what
he currently earns in his private sector position as compared to what he
would have earned at the agency had he received a grade increase.<1>
Initially, the Commission notes that, in accordance with Section
1981a(b)(2), a request for lost wages and lost retirement benefits is
a claim for equitable relief, and not compensatory damages.
With respect to lost wages, complainant contended that, with an Excellent
rating on his performance evaluation for 1993, he would have been promoted
to a GS-12 position in April 1994 and would have advanced through three
step increases on the GS-12 scale. He explained that he applied for
a promotion to a GS-12 position which was awarded to another employee
who had never received an Excellent rating, and that all the chemists
in the work unit with comparable lengths of service to his had been
competitively promoted to GS-12.
The Commission finds that complainant makes his lost wages and lost
retirement benefits claim based on his nonselection in April 1994 and
his alleged constructive discharge in January of 1995. These issues
were not raised in complainant's subject complaint, nor did complainant
raise the issues in his appeal underlying the AJ's decision. Thus, a
decision on the issue of constructive discharge or nonselection was not
made by the Commission with respect to the subject complaint. We also
note that, while the AJ recommended that the agency provide complainant
all benefits, including pay raises, cost of living increases, and career
ladder promotions, he would have received had he been rated Excellent
in his performance evaluation, complainant has identified a competitive
promotion in his request for lost wages and not career ladder promotion
as described by the AJ. For these reasons, we cannot now award damages
based on complainant's alleged constructive discharge or nonselection.
Attorney's Fees
Complainant claimed $23,600 for time spent and costs incurred in pursuing
his complaint.<2> We find that complainant's claim is best categorized
as a request for attorney's fees. We note, however, that a non-attorney
or a federal employee (including attorneys) who represents himself or
a complainant is not entitled to an award of fees. See 29 C.F.R. �
1614.501(e)(1)(iii); Kay v. Ehrler, 499 U.S. 432 (1991).
Complainant also claimed $300 for attorney's fees. By federal
regulation, the agency is required to award attorney's fees for the
successful processing of an EEO complaint in accordance with existing
case law and regulatory standards. 29 C.F.R. � 1614.501(e)(1)(iii).
Here, the AJ recommended that the agency not award attorney's fees to
complainant because his attorney played no role in the processing of the
subject complaint, and the attorney was designated on January 20, 1995,
ten days after the hearing. Furthermore, the record does not indicate
that complainant's attorney represented him with respect to EEOC Appeal
No. 01955880, compensatory damages, or the current appeal. Therefore,
the Commission finds that complainant is not entitled to an award of
attorney's fees.
CONCLUSION
Accordingly, the agency's decision is MODIFIED and REMANDED for further
processing in accordance with this decision and the ORDER below.
ORDER
The agency is ordered to take the following remedial actions:
1. Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant $8,000.00 in non-pecuniary compensatory
damages.
2. 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 documentation that it has paid
complainant $8,000 in compensatory damages.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 21, 2002
__________________
Date
1 The record reflects that the complainant
resigned from his agency position in January 1995.
2 We note that the agency awarded complainant $100.00 for costs incurred
in the pursuit of his complaint in its FAD.