past history of PTSD and diabetes is a pre-existing condition
To deflate the severity of the discrimination, the defendent (agency) tries to find any reason they can to award less. While a past history of ptsd and diabetes was present, all it could do to hurt the eeoc claim is to reduce the award.
The complainant also hurt his award when the AJ decided:
Pecuniary Damages. Complainant did not submit documents or other proof
of actual monetary or out-of-pocket expenses incurred as a result of
the agency’s discriminatory conduct. The record does not indicate that
complainant made a claim for pecuniary damages.
In a claim for compensatory damages, a complainant must demonstrate,
through appropriate evidence and documentation, the harm suffered as a
result of the agency’s discriminatory action; the extent, nature, and
severity of the harm suffered; and the duration or expected duration of
the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934156
(July 22, 1994), req. to recon. den., EEOC Request No. 05940927
(December 11, 1995); Notice at 11-12, 14; see Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence
in support of a claim for pecuniary damages includes documentation showing
actual, out-of-pocket expenses with an explanation of the expenditure
and, for non-pecuniary claims, statements from the complainant and
others, including family members, co-workers, and medical professionals.
Notice at 9; Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993).
Awards are limited to compensation for the actual harm suffered
as a result of the agency’s discriminatory actions. See Carter
v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Notice at 13.
The agency is only responsible for those damages that are clearly shown
to be caused by the agency’s discriminatory conduct. Carle v. Department
of the Navy, supra; Fazekas v. USPS, EEOC Appeal No. 01954627 (April
7, 1997); see also Johnson v. Department of Interior, EEOC Appeal
No. 01961812 (June 18, 1998). To recover damages, the complainant must
prove that the employer’s discriminatory actions were the cause of the
pecuniary or non-pecuniary loss. Notice at 8. An award of compensatory
damages for non-pecuniary losses, including emotional harm, should
reflect the extent to which the agency’s discriminatory action directly
or proximately caused the harm and the extent to which other factors
also caused the harm. Notice at 11-12.
The extent of an agency’s liability may be tempered by other factors that
affected a complainant, in particular herein, the complainant’s medical
and emotional condition at the time of the agency’s action. When the harm
caused by its action may be an aggravation of pre-existing conditions,
the agency is generally liable for additional harm. Guidance at 11.
In considering such cases, the Commission relies on the principle that
“a tortfeasor takes its victims as it finds them.” Wallis v. USPS,
EEOC Appeal No. 01950510 (November 13, 1995), (citing, Williamson
v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)).
However, when a complainant has a pre-existing condition, the agency
is liable only for the additional harm or aggravation, and, if the
complainant’s pre-existing condition inevitably would have worsened,
the agency is entitled to a reduction in damages reflecting the extent to
which the condition would have worsened even absent the discrimination.
Notice at 12. Punitive damages are not available against the federal
government. Notice at 4.
now here is the entire appeal
Daniel J. Tramontozzi v. Department of Veterans Affairs
0120053114
5/10/07
.
Daniel J. Tramontozzi,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120053114<1>
Agency No. 99-0244
Hearing No. 160-99-8697x
DECISION
On March 21, 2005, Daniel J. Tramontozzi (complainant) filed an appeal
from the February 15, 2005, Final Order on Damages and Attorney’s Fees
(FAD) of the Department of Veterans Affairs (agency) awarding him $15,000
in non-pecuniary compensatory damages.<2> The agency’s FAD agreed with
the determination by the Administrative Judge (AJ) issued January 13,
2005, following a finding of reprisal discrimination by the Commission.
EEOC Appeal No. 01A31249 (May 11, 2004).<3> The appeal is timely filed
(see 29 C.F.R. § 1614.402(a)) and is accepted in accordance with 29
C.F.R. § 1614.405. Upon remand from EEOC Appeal No. 01A31249, the AJ
issued an order directing that complainant supplement his claim for
compensatory damages focused on the issue upon which he prevailed;
she did not hold a hearing.
Complainant’s Submission
In EEOC Appeal No. 01A31249, the Commission found that Dr. S’s decisions
to move complainant’s office and to force his transfer to another service
were in retaliation for his EEO counselor responsibilities, noting that
she was angry with complainant, whom she felt was inciting employees to
file complaints; she also told complainant that “she could not stand to
look at him.”<4> Further, Dr. S complained that complainant spent too
much time on his EEO duties, notwithstanding evidence to the contrary,
and made her complaints known throughout the Center. The EEO manager,
the Director of the Medical Center, and other high-level managers
told complainant that Dr. S “could not stand him,” that he should not
interact with Dr. S, and that he should stay away from Rehabilitation
Services. At the behest of Dr. S, complainant was moved involuntarily
out of Rehabilitation Services to the Psychology Service; that Dr. S
disliked complainant and his EEO activity was public and known to the
staff, including high-level managers who stated that Dr. S did not want
complainant around. The first space he moved to was very unpleasant,
as it had no air conditioning and was located above a kitchen vent; the
second space complainant was given was “dingy,” had poor ventilation,
and was far away from the patient care area. The record indicates that
none of the areas assigned to complainant were wheel-chair accessible
for his clients.
In support of his claim for non-pecuniary compensatory damages,
complainant submitted a personal statement describing the impact of
Dr. S’s discriminatory actions on his self-worth, self-confidence,
and status within the facility and his lapse into former negative
and destructive behaviors, i.e., drug and alcohol abuse. Prior to
his employment under Dr. S, he stated that he was happy, confident,
enjoyed his work, and believed he was on track for promotions and
upward mobility; he had been drug free for 20 years and did not engage
in destructive behavior. Complainant described the difficulty he had
withstanding her abuse and harassment, which happened on a daily basis
over a period of several years. He described his difficulty with his
drug and alcohol habit and detoxification efforts, his decent into severe
depression and suicide attempts, and, finally, his decision to leave
the agency in order to regain his self-esteem. His wife also submitted
a statement describing the change in complainant and the impact of his
negative behaviors on their family life, her efforts to prevent his
suicide attempts, and their several attempts at detoxification. A close
friend and his brother also reported about the changes in complainant’s
personality, and another friend verified his wife’s account of stopping
a suicide attempt. In addition, there are various medical reports about
his medical problems over approximately 12 years.<5> We note, however,
that complainant is a Vietnam veteran and had experienced post-traumatic
stress disorder (PTSD) in the past; in addition, he was diagnosed with
diabetes in the early 1990s.
Legal Standards
The Civil Rights Act of 1991 (CRA) authorizes awards of compensatory
damages as relief for intentional discrimination in violation of Title
VII. 42 U.S.C. § 1981a. The Supreme Court has affirmed the Commission’s
holding that compensatory damages are recoverable in the administrative
process. West v. Gibson, 527 U.S. 212 (1999); see Jackson v. USPS, EEOC
Appeal No. 01923399 (November 12, 1992), req. to reopen den., EEOC Request
No. 05930306 (February 1, 1993). Compensatory damages may be awarded
for losses and suffering due to the discriminatory acts or conduct of
the agency and include past pecuniary losses, future pecuniary losses,
and non-pecuniary losses that are directly or proximately caused by the
agency’s discriminatory conduct. See Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. N915.002 (July 14, 1992) (Notice). Compensatory damages are not
available for discriminatory activity occurring prior to November 21,
1991, the effective date of the CRA. Laverdure v. Department of the
Interior, EEOC Request No. 05931186 (June 17, 1994).
In a claim for compensatory damages, a complainant must demonstrate,
through appropriate evidence and documentation, the harm suffered as a
result of the agency’s discriminatory action; the extent, nature, and
severity of the harm suffered; and the duration or expected duration of
the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934156
(July 22, 1994), req. to recon. den., EEOC Request No. 05940927
(December 11, 1995); Notice at 11-12, 14; see Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Objective evidence
in support of a claim for pecuniary damages includes documentation showing
actual, out-of-pocket expenses with an explanation of the expenditure
and, for non-pecuniary claims, statements from the complainant and
others, including family members, co-workers, and medical professionals.
Notice at 9; Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993).
Awards are limited to compensation for the actual harm suffered
as a result of the agency’s discriminatory actions. See Carter
v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Notice at 13.
The agency is only responsible for those damages that are clearly shown
to be caused by the agency’s discriminatory conduct. Carle v. Department
of the Navy, supra; Fazekas v. USPS, EEOC Appeal No. 01954627 (April
7, 1997); see also Johnson v. Department of Interior, EEOC Appeal
No. 01961812 (June 18, 1998). To recover damages, the complainant must
prove that the employer’s discriminatory actions were the cause of the
pecuniary or non-pecuniary loss. Notice at 8. An award of compensatory
damages for non-pecuniary losses, including emotional harm, should
reflect the extent to which the agency’s discriminatory action directly
or proximately caused the harm and the extent to which other factors
also caused the harm. Notice at 11-12.
The extent of an agency’s liability may be tempered by other factors that
affected a complainant, in particular herein, the complainant’s medical
and emotional condition at the time of the agency’s action. When the harm
caused by its action may be an aggravation of pre-existing conditions,
the agency is generally liable for additional harm. Guidance at 11.
In considering such cases, the Commission relies on the principle that
“a tortfeasor takes its victims as it finds them.” Wallis v. USPS,
EEOC Appeal No. 01950510 (November 13, 1995), (citing, Williamson
v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)).
However, when a complainant has a pre-existing condition, the agency
is liable only for the additional harm or aggravation, and, if the
complainant’s pre-existing condition inevitably would have worsened,
the agency is entitled to a reduction in damages reflecting the extent to
which the condition would have worsened even absent the discrimination.
Notice at 12. Punitive damages are not available against the federal
government. Notice at 4.
Compensatory Damages
We find that complainant is entitled to an award of proven compensatory
damages based on our decision in EEOC Appeal No. 01A31249 (May 11, 2004),
finding that the agency, through Dr. S and others discriminated against
complainant based on reprisal; we also note the complicity of the then-EEO
Director and the facility’s Medical Director. Further, we find that the
period for complainant’s entitlement began with Dr. S’s assignment in
November 1992, through 1996, even after he was moved from her service.
Complainant’s medical reports confirm that his mental health had declined
by early 1994, when he was diagnosed with an adjustment disorder with
mixed emotional features, generalized anxiety, and a depressed mood, which
apparently continued into 1996; complainant references his workplace as a
cause of his symptoms. One doctor’s report in January 1996, stated that
it did not appear that his current symptoms were due to a recent crisis,
as his symptoms had been extant for several years.
In considering complainant’s claim for non-pecuniary compensatory
damages, we find that the effects of Dr. S’s treatment of complainant
extended beyond her actual supervision of complainant and that she
bore some responsibility for the change in his status within the agency
and the change in his personality. We do find that Dr. S’s blatantly
discriminatory actions followed complainant into his transfer and damaged
his reputation within the agency, through her very public complaints
about him; that her complaints about him became known to the facility
Director and other high-level officials seems beyond the normal routine
of business operations, considering complainant occupied a regular staff
position. Therefore, based upon record evidence, medical evidence, and
the statements by complainant and others, we find that the entitlement
period in this matter for purposes of recovery of damages is from November
1, 1992, through 1996.
Pecuniary Damages. Complainant did not submit documents or other proof
of actual monetary or out-of-pocket expenses incurred as a result of
the agency’s discriminatory conduct. The record does not indicate that
complainant made a claim for pecuniary damages.
Non-pecuniary Damages. Damages are available for the intangible injuries
of emotional harm, such as emotional pain, suffering, inconvenience,
mental anguish, and loss of enjoyment of life directly and proximately
caused by the agency’s discriminatory actions. Here, complainant must
demonstrate by probative evidence that the emotional harm for which he
seeks compensation was the result of agency actions that occurred from
November 21, 1991, through 1992. The evidence available in the record
to show harm for this period is complainant’s statement and that of his
daughters and, to a more limited extent, his co-workers. We find that
complainant has shown that he experienced emotional harm because of the
agency’s discriminatory action.
While there are no exact rules or formulas governing amounts to be
awarded for non-pecuniary compensatory damages, the Commission has set
forth certain principles through its Notice and past legal decisions.
An award must be predicated on the harm experienced as a result of the
agency’s actions; an award must take into account the severity of the
harm for the period of time that the complainant experienced the harm;
and an award should not be “monstrously excessive” standing alone,
the product of passion or prejudice, or inconsistent with awards in
similar cases. Finally, the agency is only responsible for those damages
that are clearly shown to be caused by its actions.
In examining other cases awarding non-pecuniary compensatory damages
in similar circumstances, we find that the amounts awarded, even with
a deduction for pre-existing conditions, were higher than the $15,000
awarded by the AJ in this case. In Carlson v. Department of Justice,
EEOC Appeal No. 01A51437 (April 27, 2005), we awarded the complainant
$30,000, for a finding of discrimination based on reprisal, where the
complainant testified that he experienced depression, anger, alienation,
humiliation, embarrassment, and a loss of status, and his therapist,
wife, and other family members confirmed his symptoms. In other cases
finding discrimination based on reprisal where the complainant described
feelings of shame, humiliation, low-self esteem, and a loss of status,
the Commission awarded amounts from $25,000 to $60,000, depending on the
time periods involved and other factors. See, e.g., Levy v. Department
of Veterans Affairs, EEOC Appeal No. 01A01561 (May 12, 2003) ($60,0000);
Arreola v. Department of Justice, EEOC Appeal No. 01A03342 (January 17,
2002) (c. $ 50,000); Arizola v. Department of Homeland Security, EEOC
Appeal No. 07A30132 (February 4, 2004) ($50,000); Holliday v. Department
of Agriculture, EEOC Appeal No. 01A03047 (June 12, 2002) ($50,000);
Washington v. Department of Veterans Affairs, EEOC Appeal No. 07A50033
(March 25, 2005) ($25,000).
Based upon our review of the entire record in this matter, complainant’s
submission, and arguments on appeal not specifically addressed, we find
that complainant is entitled to an award of $40,000 in non-pecuniary
compensatory damages. This award is based on the harm experienced as a
result of the agency’s actions, takes into account the severity of the
harm and the period of time that the complainant experienced the harm, is
not “monstrously excessive” standing alone, is not the product of passion
or prejudice, and it is not inconsistent with awards in similar cases.
Further, because the agency is only responsible for those damages that
are clearly shown to be caused by its actions, this amount takes into
consideration that complainant had pre-existing medical conditions that
may have affected the impact of Dr. S’s discriminatory actions.
CONCLUSION
Accordingly, the agency’s decision is modified. The agency is directed
to comply with the Order, below.
ORDER (C0900)
To the extent that the agency has not already done so, it is ordered to
take the following remedial action:
Within thirty (30) days of the date this action becomes final, the agency
shall pay complainant $40,000 in non-pecuniary compensatory damages.
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 verifying
that the corrective action has been implemented.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____5/10/07_____________
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 Assistant
1Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2On appeal, complainant does not challenge the award of attorney’s
fees and costs. The petition for attorney’s fees and costs submitted
following the remand was accepted by the AJ and the agency.
3Complainant appealed from the AJ’s initial decision finding that
complainant failed to carry his burden to establish discrimination
based on race (white), sex, age (DOB 7/1/1948), and in reprisal
for prior EEO activity when (a) his position was not upgraded to a
GS-12; (b) his supervisor (Dr. S) moved his office four times and
removed him involuntarily from her service; (c) his office was not
wheelchair-accessible for his clients; and (4) he was not selected for the
position of EEO Program Manager. On appeal, the Commission found that
Dr. S moved his office four times, transferred him out of her service,
and expressed discriminatory animus towards him in reprisal for serving
as an EEO counselor as a collateral duty.
4Although several employees filed EEO complaints against her, complainant
refrained from involvement in them. The AJ had described complainant’s
relationship with Dr. S as a “falling out,” but surely that understates
the matter where Dr. S had superior authority.
5Some reports from his medical providers attempt to offer reasons
for complainant’s decline and/or reactivation of his PTSD, however,
we consider these reports, most written well after-the-fact, to be
speculation and will rely more heavily on complainant’s statement and
evidence.
