01A10856
07-06-2001
Richard R. Williams, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Richard R. Williams v. Department of Transportation
01A10856
July 6, 2001
.
Richard R. Williams,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A10856
Agency No. 2-93-2384
Hearing No. 100-94-7448X
DECISION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission concerning his entitlement to compensatory damages. The agency
provided a final agency decision which found that complainant was not
entitled to compensatory damages because he failed to request them.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
BACKGROUND
Complainant filed a formal EEO complaint on July 14, 1993, alleging that
he was discriminated against on the bases of race (African American),
color (black) and age (44) when he was not given a personal interview
and was non-selected for one of six vacant Quality Assurance Specialist
positions for the Federal Aviation Administration (FAA). A hearing
was held before an EEOC Administrative Judge, where a finding of
no discrimination was made. The ruling was appealed. The Commission
remanded the case back to the agency for supplemental investigation that
was to include submission of all bid packages regarding the announcement.
The Human Resources Office of the FAA did not produce the requested
records. As a result, an adverse inference was drawn and a finding of
discrimination based on race was made by the agency. The FAD ordered make
whole relief which included giving complainant priority consideration
for the next Quality Assurance Specialist position. Complainant filed
an appeal regarding the relief offered. By decision dated October 14,
1999, the Commission ordered the agency to offer complainant placement
into the position of Quality Assurance Specialist. Complainant was asked
by the agency to submit objective evidence regarding his entitlement to
compensatory damages.
Complainant submitted affidavits and medical documentation regarding
his claim for compensatory damages. Complainant indicated that he
had endured in excess of 84 months of anxiety and uncertainty caused
by unlawful discrimination. Complainant indicated that a fair and
reasonable compensation could be calculated at the rate of $1000.00
per month times 84 months for a total of $84,000.00. In his affidavit,
complainant indicated that as a result of the agency's discriminatory
conduct, he experienced depression, anxiety, sleeplessness, marital
and family problems and weight loss. He also indicated that he
continues to experience uneasiness and discomfort when applying for
jobs. Complainant's wife's affidavit supports complainant's claim
for damages. In its FAD regarding compensatory damages, the agency
indicated that it had erred when it asked complainant to submit evidence
of compensatory damages since complainant's claim had made no mention of
compensatory damages. Therefore, the agency denied complainant's claim.
Complainant appealed the decision. On appeal, the agency indicated that
complainant had not proved that the harm that he alleges is a result of
the non-selection. The agency also indicated that complainant's claim
appeared to be related to the stress of participating in the EEO process
which is not recoverable. Additionally, the agency indicated that medical
records reveal that complainant's problems may also stem from problems
outside of the agency's actions. Therefore, the agency requests that
complainant's request be significantly reduced.
ANALYSIS
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages
do not include back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII. To receive an award of
compensatory damages, a complainant must demonstrate that he has been
harmed as a result of the agency's discriminatory action; the extent,
nature and severity of the harm; and the duration or expected duration
of the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994), req. for reconsid. denied, EEOC Request No. 05940927
(December 11, 1995); EEOC's Enforcement Guidance: Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) (�Guidance�).
A complainant is required to provide objective evidence that will allow
an agency to assess the merits of his request for damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
NON-PECUNIARY DAMAGES
Non-pecuniary damages constitute the sums necessary to compensate
the injured party for actual harm, even where the harm is intangible.
Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). The award
should take into account the severity and duration of the harm. Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Non-pecuniary and future pecuniary damages are limited to an amount of
$300,000.00. The Commission notes that for a proper award of non-pecuniary
damages, the amount of the award should not be �monstrously excessive�
standing alone, should not be the product of passion or prejudice,
and should be consistent with the amount awarded in similar cases.
See Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483
(March 4, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848
(7th Cir. 1989)).
Initially, we point out that non-pecuniary compensatory damages
are designed to remedy a harm and not to punish the agency for its
discriminatory actions. See Memphis Community School Dist. v. Stachura,
477 U.S. 299, 311-12 (1986) (stating that a compensatory damages
determination must be based on the actual harm sustained and not the
facts of the underlying case). In the instant case, the agency disputes
complainant's entitlement to non-pecuniary damages while complainant
requests $85,000.00.
We note that the Commission has awarded compensatory damages in cases
somewhat similar to complainant's case in terms of the harm sustained.
See, e.g., Batieste v. Department of the Air Force, EEOC Appeal
No. 01974616 (May 26, 2000)($12,000.00 in non-pecuniary damages based
on complainant's and others' statements of emotional distress due to
agency's discriminatory termination); Jones v. Department of Defense,
EEOC Appeal No. 01973551 (April 14, 2000)($9,000.00 in non-pecuniary
damages based on complainant's statements of the interference with
family and marital relations, digestive problems, headaches, anxiety,
sleeplessness, and exhaustion resulting from the agency's discrimination);
Butler v. Department of Agriculture, EEOC Appeal No. 01971729 (April 15,
1999)($7,500.00 in non-pecuniary damages based on complainant's testimony
regarding his emotional distress); Hull v. Department of Veterans Affairs,
Appeal No. 01951441 (September 18, 1998)($12,000.00 in non-pecuniary
damages based on complainant's testimony of emotional distress due to
retaliatory harassment); White v. Department of Veterans Affairs, EEOC
Appeal No. 01950342 (June 13, 1997)($5,000.00 in non pecuniary damages
based on emotional distress); Roundtree v. Department of Agriculture,
EEOC Appeal No. 01941906 (July 7, 1995)($8,000.00 in non-pecuniary damages
where medical evidence testimony was provided regarding complainant's
emotional distress, but the majority of complainant's emotional problems
were caused by factors other than the discrimination).
The Commission finds that although complainant did not specifically
state in his formal complaint that he requested compensatory damages,
in his narrative explaining the discriminatory event, complainant has
repeatedly noted the unfairness and despair of his situation and how he
experiences flashbacks every time he prepares for a new job interview.
Accordingly, the Commission finds this information sufficient to support
complainant's claim for compensatory damages. See De los Santos v. United
States Postal Service, EEOC Appeal No. 01974430 (May 23, 2001).
Therefore, after analyzing the evidence which establishes the harm
sustained by complainant and upon consideration of damage awards reached
in comparable cases, the Commission finds that complainant is entitled to
an award of non-pecuniary damages in the amount of $9,000.00 for damages
based on complainant's statements of interference with family and marital
relations, digestive problems, depression, anxiety, sleeplessness, and
weight loss resulting from the agency's discrimination. We find this
case analogous to the above-referenced cases with respect to the nature,
severity and duration of the harm. Further, we agree with the FAD
that complainant is not entitled to his claims regarding compensation
for stress related to the EEO process or for compensation for health
care unrelated to the agency's discriminatory conduct. Further, since
complainant failed to provide medical bills or any evidence of any
expenses for these services, complainant is not entitled to pecuinary
damages.<1> Finally, we note that this award is not motivated by
passion or prejudice, is not �monstrously excessive� standing alone,
and is consistent with the amounts awarded in similar cases. See Cygnar,
CONCLUSION
Accordingly, based on a thorough review of the record, we REVERSE the
agency's final decision and award complainant $9,000.00 non-pecuniary
damages. We ORDER the agency to comply with the Order below.
ORDER
To the extent it has not already done so, the agency is ORDERED to take
the following remedial action:
(1) We hereby ORDER the agency to, within thirty (30) days of the date
on which this decision becomes final, tender to complainant $9,000.00
in compensatory damages.
(2) If the agency has not already done so in compliance with our order
in EEOC Appeal No. 01973964, the agency shall offer appellant placement
into the position of Quality Assurance Specialist, GS-1910-9/11/12, with
promotion potential to the GS-13 level, or a substantially equivalent
position, retroactive to the date on which he would have started in that
position had he not been discriminated against. This offer shall include
an award of back pay, with interest, and other benefits appellant would
have received. The agency shall accomplish this action within sixty (60)
calendar days of the date this decision becomes final.
(3) If the agency has not already done so in compliance with our order
in EEOC Appeal No. 01973964, the agency shall determine the appropriate
amount of back pay, with interest, and other benefits due appellant,
pursuant to 29 C.F.R. �1614.501, no later than sixty (60) calendar days
after the date this decision becomes final. Appellant shall cooperate in
the agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency. If
there is a dispute regarding the exact amount of back pay and/or benefits,
the agency shall issue a check to the appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. The appellant may petition for enforcement
or clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, at the address
referenced in the statement entitled "Implementation of the Commission's
Decision."
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 of the
agency's calculation of compensatory damages, back pay and other benefits
due appellant, including evidence that the corrective action has been
implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Washington, D.C. facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
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.
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 (M0900)
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
July 6, 2001
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated , which
found that a violation of Title VII of the Civil Rights Act of 1964,
(Title VII), as amended, 42 U.S.C. �2000e et seq., has occurred at the
Department of Transportation, Federal Aviation Administration, Washington,
District of Columbia facility (hereinafter the facility).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility has been found to have discriminated against an employee
by not selecting him for a position and has been ordered to offer the
employee retroactive placement into the position with an award of back
pay and compensatory damages. The facility, will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
______________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1 Pecuniary losses are out-of-pocket expenses incurred as a result of
the agency's unlawful action, including job-hunting expenses, moving
expenses, medical expenses, psychiatric expenses, physical therapy
expenses, and other quantifiable out-of-pocket expenses.