agency found duration of harm noteworthy in determining amount awarded
The agency ordered remedies, including compensatory
damages. Subsequently, the agency issued a FAD declining to address
back pay and retirement benefits as pecuniary, compensatory damages and
awarding complainant $20,250 in non-pecuniary, compensatory damages
and attorney’s fees, as appropriate. The agency found the duration
of complainant’s harm, six years and nine months<3>, noteworthy in
determining the amount awarded. This appeal followed. On appeal,
complainant stated that the agency’s remedy was inadequate and requested
compensation for his inability to return to his prior position and for the
delays he experienced during the EEO process. In addition, complainant
requested $1,000,000 for emotional harm. Our decision will focus solely
on the appropriateness of the agency’s non-pecuniary award.<4>
Complainant submitted evidence, through his own statements as well as
medical documentation, of the emotional distress caused by the agency’s
action. Complainant stated that he has been humiliated and traumatized
and has developed hypertension, depression, Post Traumatic Stress Disorder
(PTSD), and sexual dysfunction. In addition, complainant stated that
his professional career has been affected in that he suffers flashbacks
of the agency’s defamation, discrimination and retaliation against him
so he can not work as a veterinarian full time. Finally, complainant
stated that he experienced family problems. Complainant indicated that
the effects of the retaliation remain.
Complainant’s first physician (P1) stated that complainant sought
treatment on January 27, 1993 and had hypertension, psychological
distress, PTSD, sleeplessness, problems concentrating, withdrawal,
flashbacks and crying. P1 stated that complainant’s impairments were
related to his work environment and employment career problems. His first
psychiatrist (P2) stated that he treated complainant on February 1 and
March 2, 1993 for Adjustment Disorder and Depressed Type rule out PTSD.
P2 stated that complainant’s stress seemed to be triggered by two
terminations from Federal employment. In a letter dated October 29,
1999, complainant’s second physician (P3) stated that complainant was
currently under his care for pain, hypertension and sexual dysfunction.
P3 attributed complainant’s health concerns to employment and career
problems. Finally, in a letter dated November 5, 1999, complainant’s
second psychiatrist stated that complainant was currently under his care
for Major Depression and PTSD.
===========================================
Monir A. George v. Department of Agriculture
01A13775
June 12, 2003
.
Monir A. George,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A13775
Agency No. 930315
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts the complainant’s
appeal in the above-entitled matter. The issue on appeal is whether
complainant has established that he is entitled to compensatory damages
beyond those awarded by the agency.
Complainant was employed as a GS-12 Veterinary Medical Officer with the
agency. In the early 1990s, complainant filed three complaints, which
were consolidated for processing. Complainant alleged that the agency
discriminated against him based on national origin (Egyptian) and reprisal
for prior EEO activity when the Area Veterinarian in Charge (AVIC)
denied him training, denied him the opportunity to serve as acting AVIC,
and caused the termination of his employment<1>. The agency conducted
an investigation on complainant’s claims and informed complainant of his
right to elect a hearing before an EEOC administrative judge (AJ) or an
immediate final decision (FAD). In response to complainant’s election,
the agency issued a FAD. The agency found discrimination based on
national origin and reprisal and awarded complainant remedies, including
reinstatement to his previous position with backpay and benefits. The new
AVIC and other agency employees opposed complainant’s reinstatement
because of the basis for his termination. The agency asked complainant
to consider reinstatement to a location other than his previous one, but
he declined. The new AVIC and several employees spoke with a reporter who
later published an article about complainant’s reinstatement and other
remedies awarded by the agency. Complainant learned of the article in
January 1993.
Believing that he was a victim of discrimination, complainant filed an
EEO complaint alleging that the agency discriminated against him based
on national origin and reprisal when it subjected him to a hostile
work environment (harassment) by releasing personal information to
the media.<2> The complaint was investigated and the agency issued a
FAD finding discrimination based on reprisal, but not national origin,
for harassment. The agency ordered remedies, including compensatory
damages. Subsequently, the agency issued a FAD declining to address
back pay and retirement benefits as pecuniary, compensatory damages and
awarding complainant $20,250 in non-pecuniary, compensatory damages
and attorney’s fees, as appropriate. The agency found the duration
of complainant’s harm, six years and nine months<3>, noteworthy in
determining the amount awarded. This appeal followed. On appeal,
complainant stated that the agency’s remedy was inadequate and requested
compensation for his inability to return to his prior position and for the
delays he experienced during the EEO process. In addition, complainant
requested $1,000,000 for emotional harm. Our decision will focus solely
on the appropriateness of the agency’s non-pecuniary award.<4>
When discrimination is found, the agency must provide the complainant
with a remedy that constitutes full, make-whole relief to restore the
complainant as nearly as possible to the position he would have occupied
absent the discrimination. See, e.g., Franks v. Bowman Transportation
Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975). Section 102(a) of the Civil Rights Act of 1991 (the CRA
1991), Stat. 1071, Pub. L. No. 102-166, codified as 42 U.S.C. § 1981a,
authorizes an award of compensatory damages as part of the “make whole”
relief for intentional discrimination. Section 1981a(b)(2) indicates
that compensatory damages do not include back pay, interest on back
pay, or any other type of equitable relief. Section 1981a(b)(3)
limits the total amount of compensatory damages that may be awarded
to each complaining party for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other non-pecuniary losses, according to the number of
persons employed by the respondent employer. The limit for an
employer with more than 500 employees, such as the agency, is $300,000.
42 U.S.C. § 1981a(b)(3)(D).
Compensatory damages, however, are further limited to the amount
necessary to compensate an injured party for actual harm caused by
the agency’s discriminatory action, even if the harm is intangible.
Damiano v. U.S. Postal Service, EEOC Request No. 05980311 (February
26, 1999). Compensatory damages should consider the extent, nature,
and severity of the harm and the length of time the injured party endured
the harm. Id.; 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. The Commission notes that for a proper award of
non-pecuniary compensatory 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)).
Complainant submitted evidence, through his own statements as well as
medical documentation, of the emotional distress caused by the agency’s
action. Complainant stated that he has been humiliated and traumatized
and has developed hypertension, depression, Post Traumatic Stress Disorder
(PTSD), and sexual dysfunction. In addition, complainant stated that
his professional career has been affected in that he suffers flashbacks
of the agency’s defamation, discrimination and retaliation against him
so he can not work as a veterinarian full time. Finally, complainant
stated that he experienced family problems. Complainant indicated that
the effects of the retaliation remain.
Complainant’s first physician (P1) stated that complainant sought
treatment on January 27, 1993 and had hypertension, psychological
distress, PTSD, sleeplessness, problems concentrating, withdrawal,
flashbacks and crying. P1 stated that complainant’s impairments were
related to his work environment and employment career problems. His first
psychiatrist (P2) stated that he treated complainant on February 1 and
March 2, 1993 for Adjustment Disorder and Depressed Type rule out PTSD.
P2 stated that complainant’s stress seemed to be triggered by two
terminations from Federal employment. In a letter dated October 29,
1999, complainant’s second physician (P3) stated that complainant was
currently under his care for pain, hypertension and sexual dysfunction.
P3 attributed complainant’s health concerns to employment and career
problems. Finally, in a letter dated November 5, 1999, complainant’s
second psychiatrist stated that complainant was currently under his care
for Major Depression and PTSD.
Based on the record, the Commission finds the agency’s award insufficient
to remedy the severe and persistent harm the agency’s actions
caused complainant. We note that in its FAD, the agency conceded that
complainant suffered harm over 6 years and 9 months. However, the record
suggests that complainant’s harm is not based solely on the release of
information to the media but may be also related to his termination
and other agency actions. We find $50,000 an appropriate amount as
complainant presented sufficient objective evidence to establish that
the agency’s release of information to the media caused some of his
emotional distress. Similar cases with somewhat similar evidence support
this award. See, e.g., Bowden v. Dep’t of Veterans Affairs, EEOC Appeal
No. 01A00360 (June 22, 2000) ($45,000 award for non-pecuniary damages
where the agency subjected complainant to harassment, which resulted in
exacerbation of depression, injury to professional standing, character,
reputation, and credit rating, humiliation, physical manifestations,
loss of self-esteem, and marital and family problems); Turner v. Dep’t
of Interior, EEOC Appeal No. 01956390 (April 27, 1998) ($40,000 award
for non-pecuniary damages where the agency subjected complainant
to sexual harassment and retaliation, which resulted in depression,
anger, anxiety, frustration, sleeplessness, crying spells, loss of self
esteem and strained relationships); Wallis v. U.S. Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995) ($50,000 award for non-pecuniary
damages where the agency retaliated against complainant, which resulted
in exacerbation of a preexisting mental condition, loss of reputation,
injury to credit standing, emotional distress, loss of enjoyment of life,
and loss of health).
The agency’s final decision is modified. The agency is instructed to
comply with the order as set forth below.
ORDER
The agency is ORDERED to take the following remedial action within 60
calendar days of the date this decision becomes final, unless otherwise
noted:
(1) The agency shall pay complainant compensatory damages in the amount
of $50,000 for non-pecuniary damages, less any non-pecuniary damages
already paid.
(2) The agency shall pay complainant’s reasonable attorney’s fees and
costs related to pursuing this appeal, in accordance with the paragraph
below entitled, “Attorney Fees.”
(3) The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled “Implementation of the Commission’s
Decision.” The report shall include supporting documentation of the
agency’s actions.
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
June 12, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant1The AVIC alleged that complainant attacked him
with a toilet plunger and injured his hand. Following an investigation
of the matter, the agency terminated complainant’s employment.
2Complainant asserts that a third party, an agency administrative officer,
provided his personal information to the new AVIC and/or the reporter.
3The agency determined that complainant’s harm spanned the date he
learned about the derogatory article to the date the agency issued its
FAD on the instant complaint.
4The FAD stated that complainant’s request for back pay and retirement
benefits was equitable relief rather than a request for compensatory
damages. The record reveals that complainant and the agency entered into
a settlement agreement in September 1993, which addresses back pay, front
pay, and complainant’s inability to return to his prior duty station,
based on his complaints from the early 1990s.
