01a02078
08-05-2002
Hani A. Abdulla, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Hani A. Abdulla v. Department of Veterans Affairs
01A02078
August 5, 2002
.
Hani A. Abdulla,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02078
Agency No. 98-4330
DECISION
Complainant, a medical doctor, timely initiated an appeal from the
agency's final decision on compensatory damages following the agency's
earlier finding of discrimination on the merits of his equal employment
opportunity (EEO) 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 appeal is accepted pursuant to
29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that he is
entitled to non-pecuniary compensatory damages greater than the amount
of $4,000 awarded by the agency in its final decision.
BACKGROUND
Inasmuch as this case presents the question of the evaluation, as an
element of compensatory damages, of the emotional harm caused by the
interruption, by the agency's discrimination, of the career progression
of the complainant, a medical doctor specializing in nephrology, we set
forth in some detail the complainant's work history.
The complainant, a native of Kuwait, graduated from medical school and
served an internship in internal medicine in 1981. He served a second
internship in neurosurgery (all this occurring in foreign countries).
In the United States, he was an internal medicine resident for three
years at a Pennsylvania hospital, followed by a three-year a fellowship
in clinical nephrology at the University of Cincinnati Medical Center.
From 1989 to 1991, the complainant was a consultant nephrologist
for several hospitals in Columbus, Ohio, and the Assistant Director
of Medicine at the University of Cincinnati Student Health Service.
At some point, the complainant became a citizen by naturalization.
Between 1991 and 1993, the complainant worked as a nephrologist and
Assistant Professor of Medicine at Mubarek University Hospital in his
native Kuwait. He returned to the United States and became the Director
of Nephrology at Licking Memorial Hospital, Newark, Ohio in 1993.
In 1994, the complainant entered into private nephrology practice in
Cincinnati, Ohio.
In 1995, the complainant joined the Department of Nephrology at James
A. Haley Veterans Administration Medical Center (�Haley VAMC�) in Tampa,
Florida. That department was closely associated with the College of
Medicine of the University of South Florida (�USF�), where the complainant
was also a research fellow from 1995 to 1998. During his fellowship,
he became the only research fellow in 22 Florida VA medical centers to
obtain funding from the National Kidney Foundation for research in acute
renal failure. In 1996, the complainant obtained board certification
as a nephrologist. At the completion of his one-year fellowship, he
learned from his chairman that a projected full time appointment as a
nephrologist at the Haley VAMC was not possible because of funding.
As a stopgap, and because his chairman had promised him the nephrologist
position, the complainant obtained a full time position as an emergency
room physician and in general medicine with the agency at the nearby
Bay Pines, Florida, VAMC in mid-1996. He continued his research,
and was given the title of Courtesy Assistant Professor at USF.
In 1998, when a position for a nephrologist opened at the Haley VAMC,
the complainant applied. He was not selected by his prior chairman in
favor of a less-qualified physician. Also, the complainant's association
with USF was ended by the chairman, who headed the Department of Neurology
and Hypertension at USF.
After the complainant filed his complaint of discriminatory non-selection,
the agency determined that the chairman had discriminated against the
complainant on the bases of his race (Caucasian), national origin
(Kuwaiti), and religion (Islam), as alleged, and further out of
reprisal for having filed his EEO complaint. The agency deferred its
decision on the amount of compensatory damages pending investigation.
The investigation was completed in August 1999. The agency's final
decision on compensatory damages awarded the complainant $4,000, from
which decision he has appealed.
ANALYSIS AND FINDINGS
To receive an award of compensatory damages, a complainant must
demonstrate that he or she 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. Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
We consider the agency's final decision to have understated the effect on
the complainant's emotional well-being of his non-selection to the staff
nephrologist appointment at Haley VAMC. The complainant and his witnesses
credibly testified that he took the emergency room physician's position
at Bay Pines VAMC to wait out another opening for a staff nephrologist
at Haley VAMC. In 1998, when he was not selected for the position,
the complainant's strategy was suddenly called into question.
The complainant testified that he felt he had lost status by being
in general medicine, and that he avoided contact with family overseas
and friends. The complainant's friend testified that the complainant
had become increasingly withdrawn. He had ceased to participate in
conferences and dinner lectures. The complainant's wife also testified
that he had stopped speaking with prior colleagues from Cincinnati who
were nephrologists.
The complainant's wife testified that his personality had changed
dramatically. He had started smoking when he realized he would not
be given what he had been promised by the chairman. She testified
that the complaint had initially viewed the general medicine position
as temporary, and he became very upset when he realized he might not
get the nephrologist position. She said that at the time he only
had one professional friend (the nephrologist testifying herein).
The complainant's wife said that he had ceased to interact with herself
and their children. His smoking had gone from an occasional cigar to two
or three packs daily. Previously, he had taken part in his children's
school activities and sports, she testified. This had ceased.
We differ from the agency in its finding that the duration of the
emotional harm was minimal. The testimony of the witnesses makes clear
that the harm lasted from the time the complainant filed his EEO complaint
until the restoration of his position, a period of about a year. As the
complainant's wife testified, she and the complainant were quite aware
that the chairman who had failed to select the complainant, and others
who had supported or acquiesced in the selection of a less qualified
doctor, stood as a bar to his resuming his career work as a nephrologist.
The Commission has considered and awarded non-pecuniary compensatory
damages in cases similar to the above circumstances. In Olsen
v. Department of Defense (Army & Air Force Exchange Service), EEOC Appeal
Nos. 01956675 & 01966077 (July 29, 1998) (Commission awarded $16,000 in
non-pecuniary damages where partly as a result of unfavorable promotion
potential ratings in performance evaluations and not being selected
for promotion, the complainant experienced depression, anxiety, sleep
deprivation, and marriage and family problems).
Given the nature and duration of the complainant's emotional damage,
the Commission finds that the complainant is entitled to non-pecuniary
damages in the amount of $15,000.
ORDER
The agency shall issue a check to the complainant in the amount of
$15,000 for compensatory damages.
Complainant, through counsel, shall submit a request for attorney's
fees and costs in accordance with the Attorney's Fees paragraph set
forth below.
No later than sixty (60) days after the agency's receipt of the attorney's
fees statement and supporting affidavit, the agency shall issue a final
agency decision addressing the issues of attorney's fees. The agency
shall submit a copy of the final decision to the Compliance Officer at
the address set forth below.
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 evidence that the corrective
action has been implemented and supporting documentation of the agency's
calculation of attorney's fees.
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 (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
August 5, 2002
__________________
Date