Anthony E. Rivera, Appellant,
v.
John H. Dalton, Secretary, Department of the Navy, Agency.

Appeal No. 01934157
Agency No. 93-00027-001

INTRODUCTION

Appellant filed an appeal with this Commission from a final decision of the agency concerning his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000eetseq. The final agency decision was received by appellant on July 19, 1993. The appeal was postmarked August 9, 1993. Accordingly, the appeal is timely (see, 29 C.F.R. §1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that the dismissed allegation is moot.

BACKGROUND

On December 1, 1992, appellant contacted a Counselor regarding his complaint. Unable to resolve the matter informally, appellant filed a formal complaint dated February 18, 1993, alleging discrimination based on race (Black), color (Brown) and sex (male) when he, a Loss Prevention Specialist, was terminated from his employment effective January 9, 1993. For relief, appellant sought reinstatement to the position and compensatory damages.

On July 16, 1993, the agency issued its final decision dismissing the complaint for mootness. The agency stated that through the agency's administrative appeal process, appellant was reinstated to a Loss Prevention Specialist position effective May 18, 1993, with the back pay and sick and annual leave to which he would have been entitled but for the termination. The agency further stated that appellant failed to provide information regarding compensatory damages. Based on the foregoing, the agency dismissed the complaint for mootness.

The record indicates that in a letter dated June 30, 1993, the agency asked appellant to provide an itemized accounting of his compensatory damages by July 16, 1993. Specifically, the agency asked appellant to provide all objective evidence indicating that he incurred compensatory damages, and that the damages were related to the alleged unlawful discrimination under Richard Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992). The agency included a copy of the cited decision with its request. Therein, appellant was informed that if he failed to provide the requested documentation within the requisite time period, the complaint might be dismissed for failure to provide relevant information under 29 C.F.R. §1614.107(g).

The record indicates that appellant's attorney responded to the agency's request in a letter dated July 14, 1993, via express mail postmarked July 14, 1993, but the agency did not receive the letter until July 19, 1993. Therein, the attorney attempted to explain appellant's request for compensatory damages in the amount of $300,000.00, stating that it was not based on his 'outlay of money', but rather the result of his not having any money. Specifically, the attorney states that appellant 'had no health insurance, had no money to pay doctors, had his credit rating destroyed, had to seek public assistance in order not to be evicted from his home, and had to borrow money from friends for subsistence;' appellant sought counseling from his minister at no charge. According to the attorney, appellant sought compensatory damages for the embarrassment, humiliation, lack of sleep, emotional distress and anxiety as a result of the termination.

Secondly, the attorney described appellant's dissatisfaction with the position to which he had been reinstated. The attorney stated that the agency initially attempted to reinstate appellant to a Stock-Handler position after its appeal decision. Although he was later reinstated to a Loss Prevention Specialist position with the same salary as his previous position, the attorney stated that appellant's duties were a sham. Specifically, in his previous position, appellant held a white-collar desk job, in which he investigated and audited active charges such as passing bad checks and fraud, and had frequent contact with high level officials, such as diplomats, bank officers, and military officers. In his new position, appellant was assigned to the gym, where he was required to wear gym clothes such as a T-shirt and shorts, and worked undercover to investigate the possibility of future losses. The attorney stated that appellant had informed him that the position appellant previously held was still vacant.

On July 19, 1993, appellant's attorney discovered that the agency did not receive the July 14, 1993 letter at the time of its decision. The attorney faxed a copy of the same letter to the agency, explaining that the delay in delivery of the letter was due to the fault of the post office's express mail service, and asked the agency to rescind its decision. In a letter dated July 27, 1993, the agency refused to rescind its decision since the letter failed to provide any objective evidence indicating that he had suffered harm, or that that harm was causally connected to the termination; thus, the agency concluded that the complaint was still moot.

On appeal, appellant does not raise any new contentions.

In response, the agency argues that the complaint was properly dismissed because appellant has failed to provide an itemized accounting of his compensatory damages under 29 C.F.R. §1614.107(g). The agency further argues that since appellant was reinstated to another Loss Prevention Specialist position, and paid all back pay and benefits due as a result of the termination, the complaint was moot.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.107(e) provides that the agency shall dismiss a complaint or a portion of a complaint that is moot. The issues raised in a complaint of discrimination are no longer in dispute (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625 (1979).

The record reveals that prior to his termination, appellant was a Loss Prevention Specialist. There is no dispute that appellant was reinstated to another Loss Prevention Specialist position and received back pay and sick and annual leave. Appellant contends that although he was reinstated to the same title with the same salary as his previous position, his duties under the new position are a sham in that he is required to wear gym clothes, and investigate possible future losses undercover. In his previous position, he held a white-collar desk job, and investigated and audited active charges for passing bad checks and fraud. Since the record does not contain a copy of the job description for appellant's previous position and his new position, we cannot determine whether the new position is substantially equivalent to his previous position under 29 C.F.R. §1614.501(b)(1)(i). Further, appellant asserted that his previous position was still vacant. Therefore, the matter is remanded to the agency for a supplemental investigation.

With regard to appellant's claim for compensatory damages, appellant has the burden of proving the existence, nature and severity of the alleged emotional harm.1 Appellant must also establish a causal relationship between the alleged harm and the discrimination. Absent such proof of harm and causation, appellant is not entitled to compensatory damages, even if there were a finding of unlawful discrimination. The Commission has held that evidence of emotional distress should include detailed information on physical or behavioral manifestations of the distress, if any, and any other information on the intensity of the distress, information on the duration of the distress, and examples of how the distress affected appellant both on and off the job. Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). In addition to a detailed statement by the individual claiming emotional distress damages, other evidence of such damages could include statements by health care professionals, such as physicians, psychologists, psychiatrists, therapists or counselors, as well as friends, family or coworkers who could attest to the existence, nature and severity of appellant's distress, its duration and causation.

The record shows that the agency requested that appellant provide objective evidence that he incurred damages and that the damages were causally related to the alleged unlawful discrimination. This solicitation of evidence was in accord with the Commission's decision in Richard Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992). In response to the agency's request, appellant's attorney submitted a letter merely stating that appellant's claim for $300,000.00 in compensatory damages was for the embarrassment, humiliation, lack of sleep, emotional distress, and anxiety resulting from the agency's actions. This statement without supporting evidence falls short of the type and extent of proof required to establish an entitlement to compensatory damages.

In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), the Commission described the type of objective evidence that an agency may obtain when assessing the merits of a complainant's request for emotional distress damages:

[E]vidence should have taken the form of a statement by appellant describing her emotional distress, and statements from witnesses, both on and off the job, describing the distress. To properly explain the emotional distress, such statements should include detailed information on physical or behavioral manifestations of the distress, information on the duration of the distress, and examples of how the distress affected appellant day to day, both on and off the job. In addition, the agency should have asked appellant to provide objective and other evidence linking ... the distress to the unlawful discrimination....

Objective evidence could include statements from the complainant concerning his or her emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, loss of health, and any other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Statements from others, including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Objective evidence also may include documents indicating a complainant's actual out-of-pocket expenses related to medical treatment, counseling, and so forth, related to the injury allegedly caused by discrimination. As noted above, the agency should advise the complainant that she or he must establish a connection between the alleged discriminatory action and the resulting injury. In determining damages, the agency is only required to consider objective evidence of damages shown to be a result of the alleged discrimination; the agency is not responsible for remedying pre-existing conditions or for rectifying an individual's health problems in general. We further note that a complainant, in order to establish that compensatory damages were incurred for emotional pain and suffering, may need to present personal and sensitive information to the agency to show that the injury is linked solely or partially to the alleged discriminatory conduct.

Therefore, in view of our remand of this case due to the deficiency of evidence in the record identified above, we find that the issue of compensatory damages should likewise be remanded for further consideration in accordance with the Order below.

CONCLUSION

Accordingly, the agency's decision to dismiss appellant's complaint for mootness is VACATED. The complaint is REMANDED to the agency for a supplemental investigation as set forth below.

ORDER (B1092)

The agency is ORDERED to conduct a supplemental investigation, which shall include the following actions:

1. The agency shall provide in the record a copy of the job description for appellant's previous position as a Loss Prevention Specialist at the time of his termination on January 9, 1993, and a position description for the position to which appellant was reinstated as a Loss Prevention Specialist.

2. The agency shall notify appellant within thirty (30) calendar days of the date this decision becomes final that he has thirty (30) calendar days from receipt of the agency's notice within which to provide the agency with objective evidence (as described herein), if any, regarding his claim for compensatory damages.

Based on this information, the agency shall determine whether the Loss Prevention Specialist position to which appellant was reinstated was the same position or substantially equivalent to his previous position at the time of his termination under 29 C.F.R. §1614.501(b) and shall determine whether appellant is entitled to compensatory damages. If the agency determines that appellant was reinstated to the same position or a substantially equivalent position, considering the title, salary, and duties, and that appellant is not entitled to compensatory damages, then the agency shall again issue a final decision. If the agency determines that appellant was not reinstated to the same or a substantially equivalent position, and/or that appellant is entitled to compensatory damages the agency shall process the complaint in accordance with 29 C.F.R. §1614.108. The supplemental investigation and issuance of the final decision or notice of processing must be completed within ninety (90) calendar days of the date this decision becomes final. A copy of the final decision or the notice of processing must be submitted to the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1092)

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 appellant.

RECONSIDERATION (M1092)

The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUSTBEFILEDWITHINTHIRTY (30) CALENDARDAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHINTWENTY (20) CALENDARDAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and 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 filed on the date it is received by the Commission.

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092)

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 etseq.; 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:

Frances M. Hart
Executive Officer
Executive Secretariat

July 22, 1994


1. See Enforcement Guidance: Compensatory and Punitive Damages Available under §102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992).