01984409
03-09-2000
Daniel Vereen, Complainant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Daniel Vereen v. Department of the Navy
01984409
March 9, 2000
Daniel Vereen, )
Complainant, )
)
v. ) Appeal No. 01984409
)
John H. Dalton, ) Agency No. DON-96-444-006
Secretary, )
Department of the Navy, )
Agency. )
_____________________________________)
DECISION
Daniel Vereen (complainant) filed an appeal with this Commission from a
final decision of the Department of Navy (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., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 701 et
seq.<1> This appeal is accepted in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly calculated
the amount of non-pecuniary compensatory damages to which complainant
is entitled.
BACKGROUND
Complainant (a former Painter, WG-4102-09 in the Painting/Sandblasting
Ship, Waterfront Services Division, Repair Department, Trident Refit
Facility, Kings Bay, Georgia) filed an EEO complaint on November 19, 1993,
claiming discrimination based upon physical disability (blood disorder)
and race (Black), when he was not accommodated at his grade level and
not provided pay retention.
Following an investigation, a hearing took place before an EEOC
Administrative Judge (AJ) who recommended a finding of discrimination
when the agency failed to accommodate complainant at his grade level
or provide him with retained pay. By letter dated August 25, 1995,
complainant was issued an Interim Agency Decision which adopted the AJ's
recommended decision.
In accordance with the AJ's recommendation, the agency was required
to place complainant in a position at the WG-09 grade level or in a
similar position as of the date he was downgraded, commensurate with
his physical limitations. Complainant was also informed of his right
to compensatory damages and was provided with an opportunity to submit
evidence and argument in support of the requested relief.
Complainant requested $30,000.00 in compensatory damages based on his
statement that he suffered from bad headaches, an abnormal heart beat,
sleeping problems, mental anguish and loss of enjoyment of life over a
three-year period. Complainant also submitted documentation listing:
(1) $339.67 and $1,405.70 in expenses incurred at two different medical
facilities for his blood disorder; and (2) $1,930.00 from a psychiatric
facility for treatment of depression.
The agency issued its Final Agency Decision (FAD) on August 25,
1995 awarding the following pecuniary damages: (1) $1,965.00 for
medical costs associated with complainant's depression; (2) mileage
reimbursement of 563 miles to visit his physicians; (3) 744.5 hours
of leave restored. The agency also awarded non-pecuniary damages of
$10,000.00 for complainant's negative feelings about life, bad headaches,
abnormal heart beats, sleeping problems, mental anguish, family problems
and loss of enjoyment of life for three years.
The agency denied the portion of complainant's claim involving his blood
disorder since he allegedly failed to show (1) it occurred subsequent to
the discriminatory incidents in issue and (2) it was aggravated because
of the discrimination.
In his appeal, complainant argues that he should have received
non-pecuniary damages associated with his blood disorder (an additional
$20,000.00) because it was allegedly caused by the agency's intentional
discrimination. Complainant states that the intentional discrimination
made his "illness one that will last for a life time."<2>
ANALYSIS AND FINDINGS
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); 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). A complainant is required to provide objective
evidence that will allow an agency to assess the merits of a complainant's
request for emotional distress damages. See Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993).
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. However, non-pecuniary damages must be limited
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible, See Carter v. Duncan - Higgins, Ltd.,
727 F.2d 1225 (D.C. Cir. 1984), and should take into account the severity
of the harm and the length of time that the injured party has suffered
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 Damiano v United States Postal Service, EEOC
Request No. 05980311 (February 26, 1999); 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 this legal standard, we agree with the agency's $10,000.00 award
for complainant's non-pecuniary damages in this matter. The uncontested
record indicates that the discriminatory conduct was the proximate cause
of the depression that complainant suffered which lasted approximately
three years. However, the record does not support a finding that the
discrimination caused or aggravated complainant's blood disorder.
In fact, the evidence in the record shows that complainant's blood
disorder actually improved during the period of discrimination.
Accordingly, we find that complainant was not entitled to compensatory
damages with regard to his blood disorder.
In the present case, it is undisputed that the entire evidence concerning
emotional or mental harm comes from complainant's affidavit and a
letter from his physician. Complainant affirmed that he felt bad toward
his life, suffered from bad headaches, abnormal heart beats, sleeping
problems, mental anguish, and loss of enjoyment of life for three years.
In addition, complainant affirmed that he was separated from his wife
and daughter for two years, suffered family problems and had to cancel
his insurance. Complainant's physician confirmed he had become "severely
depressed with insomnia, anorexia, obsess[ed] about work with worries
of financial problems that his family [was] experiencing" during the
period of discrimination. The record is devoid of evidence which would
show that complainant's emotional or mental harm lasted longer than three
year or could be expected to last longer than three years. While we find
appellant's testimony credible, we also find that this evidence does not
rise to the level of severity meriting a large non-pecuniary award. The
Commission generally awards large non-pecuniary awards in cases where an
appellant establishes severe emotional harm and/or a long-term injury. See
Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April
29, 1997) ($100,000 in non-pecuniary damages for severe psychological
injury over four years which was expected to continue for an indeterminate
period of time); Wallis v. United States Postal Service, EEOC Appeal
No. 01950510 (November 13, 1995) ($50,000.00 in non-pecuniary damages
for aggravation of pre-existing emotional condition, where effects were
expected to last at least seven years).
We note that there have been several recent Commission decision which
have awarded non-pecuniary damages for emotional distress. In Mullins
v. United States Postal Service, EEOC Appeal No. 01954362 (May 22,
1997), the Commission ordered an award of $10,000.00 in non-pecuniary
compensatory damages where the evidence established that the complainant's
depression (which included features of pessimism, helplessness, loss
of concentration, poor memory, anxiety, tension, difficulty with trust,
paranoia, feelings of alienation, low self-esteem, withdrawn behavior,
loss of initiative, resentment, and hostility) was directly related to the
emotional damage the complainant suffered in her work environment as a
result of the sexual harassment and reprisal. In White v. Department
of Veteran Affairs, EEOC Appeal No. 01950342 (June 13, 1997), the
Commission ordered an award of $5,000.00 in non-pecuniary damages where
the complainant's testimony and his psychologist's report indicated
that the harassment the complainant endured led complainant to suffer
from anxiety, depression, emotional fatigue, occasional nightmares,
and insomnia. In Rountree v. Department of Agriculture, EEOC Appeal
No. 01941906 (July 7, 1995), affirmed, EEOC Request No. 05950919 (February
15, 1996), the Commission ordered an award of $8,000.00 in non-pecuniary
damages where the complainant's statement and psychologist's report
indicated that some of the complainant's emotional distress, including
feelings of inadequacy, failure, and depression, were the result of a
discriminatory performance appraisal and the denial of bonus pay based
on that appraisal. In Benson v. Department of Agriculture, EEOC Appeal
No. 01952854 (June 27, 1996), the Commission affirmed the agency's award
of $5,000.00 in non-pecuniary damages where the complainant, his
relatives, and his colleagues offered testimony regarding the
embarrassment and humiliation that the complainant suffered at work
as a result of the denial of promotional opportunities, a suspension,
and other adverse actions.
Having carefully considered the facts of this case, the Commission
agrees with the agency and finds that complainant is entitled to
non-pecuniary damages in the amount of $10,000.00. In reaching this
amount, the Commission has considered a number of factors. For example,
we considered the nature and severity of the discrimination, as well as
the nature and severity of complainant's emotional distress and related
symptoms. Finally, we considered the amounts awarded in similar cases.
Based upon all of these considerations, we find that $10,000.00 is a
proper award for the emotional distress that complainant has suffered.
Lastly, with respect to complainant's requests related to his pecuniary
damages award, since we find the evidence of record does not support the
finding that complainant will likely suffer any future reoccurrence of his
depression or related symptoms, he is not entitled to additional pecuniary
damages, now or in the future, related to this claim. Complainant also
seeks assurances that he will be compensated in the event that the
agency retaliates against him in the future. Should the agency retaliate
against complainant, or otherwise discriminate against him, in the future,
complainant would be entitled to file a new EEO complaint and seek damages
associated with such discriminatory treatment. However, complainant is
not entitled to any additional remedies or assurances of future remedies
with respect to the discriminatory conduct at issue herein.
Accordingly, and for the reasons set forth above, the Commission hereby
AFFIRMS the agency's final decision finding that complainant is entitled
to $10,000.00 in non-pecuniary compensatory damages.
ORDER
If it has not already done so, within fifteen (15) days of the date on
which this decision becomes final, the agency shall tender to complainant
non-pecuniary compensatory damages in the amount of $10,000.00. Proof of
payment must be sent to the Compliance Officer, as referenced below,
even if the agency has already tendered payment.
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 (S1199)
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:
3/9/00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
Date
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 Complainant also states on appeal that while he agrees with the amount
of the pecuniary damages award, he wants assurances that he will receive
additional compensation if the agency retaliates against him in the
future or if his symptoms of depression reoccur.