Ronald Boswell, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 20, 2000
01975647 (E.E.O.C. Mar. 20, 2000)

01975647

03-20-2000

Ronald Boswell, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Ronald Boswell v. Department of the Air Force

01975647

March 20, 2000

Ronald Boswell, )

Complainant, )

) Appeal No. 01975647

v. )

) Agency No. 5U950001000

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

______________________________)

DECISION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC or Commission) from a final agency decision (FAD),

concerning the agency's award of compensatory damages.<1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405).

BACKGROUND

Complainant, a Maintenance Mechanic Foreman, with the agency's Reese

Air Force Base, Lubbock, Texas, filed a formal complaint on May 3, 1995,

alleging racial discrimination in the selection process for the position

of Maintenance Mechanic Supervisor. The agency accepted the complaint

and conducted an investigation. At the conclusion of the investigation,

complainant requested a hearing before an Equal Employment Opportunity

Commission ("EEOC") Administrative Judge ("AJ"). Following a hearing,

the AJ issued a Recommended Decision (RD) concluding that complainant

was discriminated against during selection for the Maintenance Mechanic

Supervisor position. Specifically, the AJ found that the selecting

official was influenced by a management official with discriminatory

animus toward Blacks. However, because the agency redid the selection

using a board of four individuals not associated with the prior selection,

utilizing objective criteria and eventually selecting the same individual,

the AJ concluded that complainant was not entitled to be placed in the

Maintenance Mechanic Supervisor position. To remedy the discrimination,

the AJ recommended that the agency: (1) revise its selection process

to a merit-based method that would eliminate discriminatory selection

practices; (2) post a notice describing the discrimination and ensuring

against future discrimination; (3) award reasonable attorney's fees;

and (4) award compensatory damages.

In its FAD, the agency adopted the AJ's discrimination finding as to the

selection process for the position. As remedy for the discrimination,

the FAD ordered the agency to offer complainant priority consideration

for the next available position for which he is qualified, to take

corrective action to ensure against future discrimination, and to provide

to complainant a written guarantee against future discrimination or

retaliation. Finally, the FAD provided complainant sixty days to submit

evidence to support compensatory damages. After receiving complainant's

compensatory damages evidence, the agency issued a separate FAD concluding

that based on the evidence presented, complainant was entitled $350.00

in compensatory damages.<2>

On appeal, complainant contends that the agency erred in its compensatory

damages determination and that he provided sufficient evidence to justify

a non-pecuniary award of $300,000. Complainant further contends that

aside from its compensatory damages findings, the agency failed to

provide any of the other equitable relief outlined in the original FAD.

The agency responded by restating the position it took in both of its

FADs and requesting that we affirm both FADs.

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).

A. Pecuniary Damages

Compensatory damages may be awarded for pecuniary losses that are

directly or proximately caused by the agency's discriminatory conduct.

See Guidance at 8. 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.

Id. Past pecuniary losses are losses incurred prior to the resolution

of a complaint through a finding of discrimination, the issuance of

a full-relief offer, or a voluntary settlement. Id. at 8-9. Future

pecuniary losses are losses that are likely to occur after resolution

of a complaint. Id. at 9.

In this case, other than fees paid to his attorney, complainant has

failed to provide any objective evidence of pecuniary damages. There are

no receipts, records, bills, canceled checks, or other proof of actual

losses and expenses.

B. 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)).

Applying the above legal standards, we agree with the agency that

complainant submitted sufficient unrebutted evidence to establish that

he suffered emotional harm as a result of the agency's discrimination.

The record contains several instances where witnesses describe the effect

the discrimination had on complainant's mental and physical health.

Complainant's hearing testimony and statement in support of compensatory

damages indicate that he experienced interference in relationships

with family and friends, suffered increased headaches, and became a

generally rude and unpleasant person. The statements of family and

friends support complainant's claim. We find that this uncontroverted

evidence establishes complainant's entitlement to compensatory damages.

See Sinott v. Department of Defense, EEOC Appeal No. 01952872 (September

19, 1996)(stating that a complainant's own testimony, along with the

circumstances of a particular case, can establish mental or emotional

harm).

While there is no dispute that complainant is entitled to non-pecuniary

damages, the parties differ on the appropriate amount necessary to remedy

the harm caused by the discrimination. Complainant contends that he

should receive $300,000.00 (the statutory maximum monetary award).

The agency offers that $350.00 properly compensates complainant for

any harm caused by the discrimination. We note that the Commission has

awarded compensatory damages in cases somewhat similar to complainant's

case in terms of the harm sustained. Butler v. Department of Agriculture,

EEOC Appeal No. 01971729 (April 15, 1999)($7,500 in non-pecuniary damages

based on complainant's testimony regarding his emotional distress);

Hull v Department of Veteran Affairs, Appeal No. 01951441 (Sept. 18,

1998)($12,000 in non-pecuniary damages based on complainant's testimony of

emotional distress due to retaliatory harassment); Miller v. United States

Postal Service, EEOC Appeal No. 01956109 (January 23, 1998)($7,500.00

in non-pecuniary damages where the complainant produced scant evidence

to support his claim); Benson v. Department of Agriculture, EEOC Appeal

No. 01952854 (June 27, 1996)($5,000.00 in non-pecuniary damages where the

complainant, his relatives, and his colleagues testified regarding the

embarrassment and humiliation suffered as a result of the discrimination).

In the present case, the evidence concerning emotional and physical harm

comes from complainant, his wife, children and friends. After analyzing

the evidence which establishes the physical and emotional discomfort

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 $5,000.00. We find

this case analogous to the above-mentioned Benson case with respect to

the evidence of severity and duration of the harm. While the agency

correctly points out that the relevant period of discrimination was from

January 9, 1995 (the date of the discriminatory selection) to April 17,

1995 (the date the independent board selected the original selectee for

the position), we note that the harm suffered by complainant does not

necessarily end once the discrimination ends. The agency is liable for

the actual harm suffered by complainant. See Guidance at 11-12, 14.

In reviewing the evidence, we find that complainant's physical and

emotional harm began in January 1995 and ended the summer of 1995.

We further note that this award meets the goals of not being motivated by

passion or prejudice, not being "monstrously excessive" standing alone,

and being consistent with the amounts awarded in similar cases. See

Cygnar, 865 F.2d at 848.

Insofar as complainant contends that the agency failed to provide the

relief outlined in the initial FAD, the Commission affirms the initial

FAD's finding of discrimination and the relief outlined in the decision.

As a result, we will make the FAD's relief provisions part of the order

in this decision. If the agency fails to comply with our order below,

complainant can file a petition for enforcement to seek redress for

the noncompliance.

CONCLUSION

Accordingly, based on a thorough review of the record, and for the

foregoing reasons, we AFFIRM the FAD which found discrimination. However,

we MODIFY the FAD addressing compensatory damages because it failed to

provide the appropriate amount of non-pecuniary damages.

ORDER (C1092)

To the extent that it has not already done so, the agency is ORDERED to

take the following remedial action:

1. Within thirty (30) days of the date on which this decision becomes

final, the agency shall tender to complainant non-pecuniary compensatory

damages in the amount of $5,000.00.

2. The agency shall offer complainant priority consideration for the

next available position for which he is qualified. The Commission has

previously interpreted the phrase "priority consideration" as follows:

"Priority consideration is commonly understood to mean that complainant

must be considered before any formal action to recruit for the vacancy,

and must be give[n] bona fide consideration on her own merit, without

competition with other potential candidates. Priority consideration does

not guarantee selection...." Bishop v. Department of Transportation,

EEOC Request No. 05910148 (Apr. 10, 1991) (citation omitted).

3. The agency shall commit to complainant in writing that it will cease

from engaging in the unlawful employment practices, that it will not

engage in similar unlawful employment practices, that it will provide

complainant a work place free from hostility, offensive conduct and

abuse, and that it will take no reprisal against complainant for filing

and pursuing this or any other EEO action.

4. The agency is directed to conduct EEO training for the management

staff at the Air Force Base. The agency shall address these employees'

responsibilities with respect to eliminating discrimination in the

workplace and all other supervisory and managerial responsibilities

under equal employment opportunity law.

5. 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 must include evidence that the corrective action

has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at the Reese Air Force Base 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 (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

March 20, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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.

2 In support of his compensatory damages claim, complainant submitted

excerpts from his testimony at the hearing, a personal statement, and

statements from his wife, three children and two friends. Complainant

stated that due to the discrimination, he suffered interference in

relationships with family and friends, experienced increased headaches,

and became a generally rude and unpleasant person. Complainant's wife

stated that the discrimination caused deterioration to their marital

relationship and caused her husband to suffer headaches. Complainant's

children stated that during the summer of 1995, their father appeared

uncharacteristically stressed and irritable. Finally, complainant's

friends stated that during 1995, complainant became a very stressed and

irritable person.