01985629
07-13-2000
Raymond A. Petted, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Raymond A. Petted v. Department of Veterans Affairs
01985629
July 13, 2000
Raymond A. Petted, )
Complainant, )
)
v. ) Appeal Nos. 01985629
) 01995959
Togo D. West, Jr., ) Agency No. 94-0531
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
On July 16, 1998, the complainant filed an appeal with this Commission
from a final decision of the agency dated June 22, 1998 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.<1>
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>
ISSUE PRESENTED
Whether the agency properly found that the complainant did not prove
he sustained any compensatory damages, and whether the complainant is
entitled to attorney fees and costs.
BACKGROUND
The complainant formerly was employed with the agency as an Air
Conditioning Equipment Operator, WG-11. In December 1992 he applied
for the day shift job of Air Conditioning Equipment Mechanic, WG-10,
a downgrade, and was not selected. The position was filled around
March 1993. At his hearing, the complainant agreed that the issue
was whether he was discriminated against on the basis of reprisal (EEO
activity) when he was not selected. The Commission ultimately found
discrimination on this issue. Petted v. Department of Veterans Affairs,
EEOC Appeal No. 01945716 (June 21, 1996), request for reconsideration
denied, EEOC Request No. 05960669 (March 5, 1998).
Up to this point, the complainant described his damages in relation to not
being selected as follows. He averred that being kept off the day shift
prevented him from completing his college education, damaging his career.
The complainant wrote that he was on a rotating shift. According to
the complainant, when he first started his Operator job around 1985,
he was working toward a degree in electronics. The complainant stated
that at this time all employees were relieved at 7:30 a.m. which gave
him time to reach an 8:00 a.m. class. However, because people came
in late, he was subsequently relieved late, preventing his schooling.
The counselor's report of March 1993 indicated the complainant was
working the swing shift.
The complainant also contended that the discrimination caused his wife
to believe her being a different race and national origin hindered the
complainant's career, resulting in loss of "services." The complainant
stated that he learned he did not get the job from an outside contractor
who teased him about it, which was very embarrassing. He also stated that
he pushed to get an interview, causing additional stress. He concluded
that he suffered embarrassment, humiliation, emotional distress, and
loss of consortium.
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 provide evidence on compensatory
damages and explaining in detail how to do this.
The complainant responded in May 1998 with statements by himself and
others, and medical documentation. He stated that as a result of racial
slurs, performance appraisals with negative comments, cancellation of
approved annual leave, removal of another employee who engaged in EEO
activity; and not filling his old position after being moved to the
day shift, forcing co-workers to work alone, he had great mental and
physical stress. He added that performance appraisals with satisfactory
ratings resulted in the denial of award money. He also stated that he
lost years of education and training.
The complainant especially focused on the removal of the co-worker,
stating this caused him skin rash, migraine headaches, muscle spasm
and back aches, and shortness of breath, and that this was confirmed
by the letters he provided by doctors and friends. He stated he was
prescribed medication such as anti-anxiety drugs, stomach pills, and
pain relievers.
The complainant's wife described similar symptoms of the complainant.
She attributed them to harassment after he engaged in EEO activity to
move to the day shift. She described the harassment as racial slurs,
tormenting the complainant about his religious and political beliefs
because of her different race and national origin, threatening removal,
giving cash awards to those who would harass the complainant, and
canceling his approved annual leave.
One co-worker indicated the complainant lost self-esteem, had headaches,
muscle tension and family stress partly due to the job and real or
believed reprisal by the agency. An agency staff pharmacist who knew the
complainant for years stated the complainant was preoccupied with the
EEO process, which caused him great stress. Note that the complainant
filed two other EEO complaints in 1994 which resulted in a finding of no
discrimination.<3> Another co-worker stated the complainant's physical
appearance deteriorated, he lost weight, developed a rash, and was
extremely nervous. He attributed this to the complainant working with
the Engineering Service, an environment the co-worker described as being
one of racial and religious harassment, including threats of violence,
and the complainant feeling he could not get out. Note the day shift
job was also in the Engineering Service.
The complainant submitted a note by his physician which indicated that
the complainant complained of migraine headaches, intermittent back pain
and numbness in the left arm, and chest wall pain, which were most likely
related to job stress, and recommended he change jobs. This was before
the complainant switched to the day shift.
The final agency decision ruled that the complainant was not entitled
to compensatory damages because he failed to show his injuries were
proximately related to the discrimination found, i.e., being discriminated
against on the basis of reprisal when he was not selected for the
position of Air Conditioning Equipment Mechanic, WG-10, about March 1993.
The agency found that in the complainant's claim for compensatory damages,
there were very few mentions of the nonselection at issue, and he did not
relate his injuries to this matter. On appeal, the complainant again
raises damages connected with matters other than the discrimination
which was found. He argues that the reprisals continue.
On remand, the agency also instructed the complainant to submit
a verified statement of fees if he was represented by an attorney.
While the complainant represented himself at the hearing, in response,
he stated he was billed $500 for work by Attorney 1 in relation to the
hearing and $300 for a consultation by Attorney 1 on April 20, 1998 in
relation to his compensatory damages claim. The complainant enclosed
a bill from Attorney 1 indicating the complainant paid the $500, and
incurred $300 for "consultations concerning EEO complaints against the
VA" on April 20, 1998. The complainant also submitted an undated bill
for $150 by Attorney 2, who substituted for Attorney 1, for work on
unspecified date(s). The complainant stated he also incurred $150 for
costs such as mailing, long distance telephone calls, and driving 120
miles to meet with a labor representative.
In a separate letter issued on the same date of the final agency decision,
the agency acknowledged receiving the above claim for fees and costs,
but explained it lacked a verified statement of costs and attorney
fees to award such a claim. It explained such a package must contain
affidavits by the attorneys setting forth their ususal and customary
hourly rate, and affidavits by other attorneys on the prevailing market
rate, and affidavits by the billing attorneys itemizing their legal
charges, accompanied by contemporaneous billing records, and so forth.
The letter explained that the complainant must submit such a package
to the agency within 45 calendar days. It stated that if the parties
could not reach an agreement on the amount of the fee award within 20
calendar days of the agency's receipt of the package, the agency would
issue a final decision on fees within 30 calendar days of its receipt
of the package.
On appeal, the complainant submits photocopies of two affidavits prepared
for unrelated cases indicating that the hourly rate of Attorney 1
was $200. In July 1999, the complainant made another submission
requesting an additional $300 in attorney fees from Attorney 1.
He avers that in May 1999 a supervisor decided to reassign him back
to his Operator job, stating there was an emergency. The complainant
states that after unsuccessfully trying to resolve the matter on his
own, he consulted Attorney 1, who gave legal advise which assisted in
preventing the reassignment. The complainant submits a bill by Attorney
1 which indicates the consultation occurred on June 8, 1999, and was
paid by the complainant the same day.
In response to the complainant's claim for attorney fees and costs,
the agency states it instructed the complainant to submit a verified
statement of fees and costs to the agency, and he did not do so. It also
argues that the request for an additional $300 in fees is for work on
a new matter. In response to the agency's argument, the complainant
avers that he appealed attorney fees and costs to this Commission.<4>
ANALYSIS AND FINDINGS
Compensatory Damages
Compensatory damages may be awarded for nonpecuniary losses, the type
of damages at issue herein, 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), at 10. This guidance is on the Commission's website
at www.eeoc.gov.
There is no precise formula for determining the amount of damages for
nonpecuniary losses. An award of compensatory damages for such 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.
Prior to being asked to provide evidence of compensatory damages, the
complainant's emphasis was that he was prevented from returning to college
and advancing his career. He has provided insufficient information,
however, for us to make a determination on whether he was so prevented.
For example, the complainant stated that early in his tenure in his
Operator job, he was repeatedly released late, making him late to class,
stopping his schooling. He does not explain, however, why he could
not have chosen a later class, or gone to school prior to the start
of his shift. The complainant also stated that his shift rotated.
He did not set forth, however, how much his hours changed, if any,
nor how frequently. Further, the complainant's argument about being
prevented from advancing in his career is speculative.
Prior to being asked to provide evidence of compensatory damages, the
complainant also stated that he had to push for an interview, which
was very stressful, and the way he learned he was not selected was very
embarrassing. Discrimination, however, was not found on these issues.
Finally, the complainant mentioned a loss of "services," an apparent
reference to a loss of consortium because the discrimination caused
his wife to believe her different race and national origin hindered the
complainant's career.
However, after the agency asked the complainant to provide evidence
of compensatory damages, explaining for example, that he must connect
his damages to the discrimination, the complainant failed to do this.
Instead, the complainant and his wife, with perhaps the exception of a
brief reference, did not attribute the complainant's emotional distress
to the discrimination found, i.e., not being selected around March 1993
to the day shift job of Air Conditioning Equipment Mechanic, WG-10,
but to matters not at issue. After receiving the final agency decision
which explained the concept of nexus and found none, the complainant
filed an appeal attributing his emotional distress to factors other
than the discrimination found. Given this, we affirm the final agency
decision which awarded no compensatory damages on the grounds that the
complainant failed to establish a nexus between the discrimination found
and his claimed damages.
Attorney's Fees and Costs
With regard to the initial submission of attorney fees and costs the
complainant made with his request for compensatory damages, his request
is denied. EEOC Regulation 29 C.F.R. � 1614.501(e)(2)(i) requires
that the application for attorney fees and costs include a verified
statement of fees and costs accompanied by an affidavit executed by the
attorney of record itemizing the attorney's charges for legal services.
The agency notified the complainant of this requirement, and provided
him two opportunities to meet it by submitting appropriate papers to
the agency. But the complainant did not do so.
Regarding the $300 charge the complainant incurred on June 8, 1999,
the parties dispute the characterization of how this expense arose.
The complainant avers that it arose in the context of enforcing the
Order in EEOC Request No. 05960669. But the agency avers the fees
arose concerning a matter a year after it implemented the Commission's
order of reassignment, and hence was a new matter. The complainant
has not established an entitlement to these additional fees, and they
are denied.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the final decision of the
agency which awarded the complainant no compensatory damages. Further,
the complainant's requests for attorney's fees and costs are 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:
July 13, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1The appeal was docketed as EEOC Appeal No. 01985629. Subsequently, the
complainant filed additional correspondence regarding this appeal. The
Commission inadvertently docketed the correspondence as a new appeal, i.e.,
EEOC Appeal No. 01995959. By this decision, the Commission merges EEOC
Appeal No. 01995959 into EEOC Appeal No. 01985629. This does not affect
the substantive rights of the parties.
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.
3Petted v. Department of Veterans Affairs, EEOC Appeal No. 01961765
(June 19, 1997).
4The complainant requests that the Commission correct the record by
stating discrimination was found on a consolidated complaint containing
agency case numbers 95-0439 and 95-0214. But the Commission upheld an
Administrative Judge's and final agency determination that there was
no discrimination. See Petted v. Department of Veterans Affairs, EEOC
Appeal No. 01961765 (June 19, 1997), request for reconsideration denied,
EEOC Request No. 05970899 (October 28, 1999). The decision in Petted
v. Department of Veterans Affairs, EEOC Appeal No. 01945716, contrary to
the complainant's assertion, did not address agency case numbers 95-0439
and 95-0214, nor find discrimination on those complaints.