Jerome Smith v. Department of Veterans Affairs 01A01738 09-23-02 . Jerome Smith, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A01738 Agency No. 94-0255 Hearing No. 250-94-8256X DECISION Complainant timely initiated an appeal to the Equal Employment Opportunity Commission concerning his entitlement to compensatory damages. The final agency decision (FAD) found that complainant was entitled to non-pecuniary compensatory damages in the amount of $30,000.00 and complainant appealed. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. Complainant filed a formal complaint on October 18, 1993, against the VA Little Rock, Arkansas facility, claiming in relevant part, discrimination based on reprisal for opposing discriminatory conduct under Title VII, when beginning on June 9, 1993, complainant was written up for various reasons, and was harassed and assaulted by co-workers.<1> At the conclusion of the investigation, complainant was informed of his right to request a hearing before an EEOC Administrative Judge (AJ) or alternatively, to receive a final decision by the agency. Complainant requested a hearing before an AJ. Following a hearing, the AJ issued a decision finding discrimination and determined that complainant was entitled to compensatory damages. The agency rejected the AJ's findings. On appeal, the EEOC determined that the credibility findings and the decision of the AJ were correct and in relevant part, ordered the agency to conduct a supplemental investigation to determine the amount of compensatory damages due complainant, and to issue a FAD. Smith v. Department of Veterans Affairs, EEOC Appeal NO. 01961710 (April 14, 1998). The complainant claimed $300,000.00 in unspecified amounts for pecuniary and non-pecuniary losses. The FAD denied complainant's unsupported request for pecuniary damages and awarded complainant $30,000.00 in non-pecuniary damages. On appeal complainant maintains that the agency's award of $30,000.00 is not sufficient, as he suffered severe harm. ANALYSIS 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); EEOC's Enforcement Guidance: 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) (“Guidance”). A complainant is required to provide objective evidence that will allow an agency to assess the merits of his request for damages. See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). Non-pecuniary damages constitute the sums necessary to compensate the injured party for actual harm, even where the harm is intangible. Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). The award should take into account the severity and duration of 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. Non-pecuniary compensatory damages are designed to remedy a harm and not to punish the agency for its discriminatory actions. See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating that a compensatory damages determination must be based on the actual harm sustained and not the facts of the underlying case). In the instant case, we find, and the agency agreed that complainant had been physically injured, stranded, subjected to numerous illegal personnel actions, and threatened with bodily harm. As a result of the agency's discrimination, the record shows that complainant suffered severe stress, was diagnosed with acute depression with suicidal thoughts, attempted suicide, had trouble concentrating, reported somatic complaints, had frequent contact with a psychologist, suffered contusions on his arm, had sleeplessness, had a nervous breakdown, and was hospitalized several times for stress and suicide attempts. The Commission applies the principle that “a tortfeasor takes its victims as it finds them.” Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987). We note that the award of compensatory damages is made in order to remedy the harm suffered by complainant only as it relates to the reprisal he experienced by the agency. We cannot make an award that takes into account the stress of participating in the EEO process, see Raymond Appleby v. Department of the Army, EEOC Appeal No. 01933897 (March 4, 1994), or take into account the stress complainant suffered due to the three robberies (one at gunpoint) at his house. The Commission has awarded compensatory damages in cases somewhat similar to complainant's case in terms of the harm sustained. See, e.g., Finlay, supra ($100,000.00 in non-pecuniary damages where complainant experienced post traumatic stress disorder, major depression, severe stress and various physical problems); Carpenter v. Department of Agriculture, EEOC Appeal NO. 01945652 (July 17, 1995) ($75,000.00 in non-pecuniary damages awarded where complainant contemplated suicide and suffered embarrassment, humiliation, inconvenience, mental anguish, loss of enjoyment of life, loss of health, loss of consortium, and losses associated with other disruptions of his marital and family relationships); Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) ($50,000.00 in non-pecuniary damages awarded where complainant was reassigned, the harm done by the discrimination was an aggravation of a pre-existing condition, and complainant contemplated committing suicide). Taking into account the harm alleged by complainant, the Commission finds that complainant is entitled to non-pecuniary damages in the amount of $80,000.00. This amount takes into account the severity and duration of the harm suffered, and is consistent with prior Commission precedent. Further, since complainant failed to provide medical bills or any evidence of any expenses for the services he listed as pecuniary damages, complainant is not entitled to pecuniary damages.<2> CONCLUSION Accordingly, based on a thorough review of the record, we MODIFY and REMAND the agency's final decision and award non-pecuniary compensatory damages in the amount of $80,000.00. We ORDER the agency to comply with the Order below. ORDER To the extent it has not already done so, the agency is ORDERED to take the following remedial action: (1) We hereby ORDER the agency to, within thirty (30) days of the date on which this decision becomes final, tender to complainant a total of $80,000.00 in non-pecuniary compensatory damages. (2) Proof of payment of compensatory damages must be sent to the Compliance Officer, as referenced below. 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 ___09-23-02_______________ Date 1 Complainant was hired on a temporary basis as an escort nursing assistant. He was detailed to the Transportation Section. He was responsible for transporting patients to various appointments. Complainant gave a statement for an investigation regarding patient abuse and the sexual harassment of a female co-worker. His testimony substantiated the allegations. Thereafter, complainant maintains that he was subjected to reprisal. 2 Pecuniary losses are out-of-pocket expenses incurred as a result of the agency's unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses.