EDWIN G. HOLLER, COMPLAINANT, v. ROBERT B...., EEOC DOC 01990407...

EEOC DOC 01990407 (E.E.O.C.), EEOC DOC 01982627, 2001 WL 991924

E.E.O.C.

EDWIN G. HOLLER, COMPLAINANT,

v.
ROBERT B. PIRIE, JR., ACTING SECRETARY, DEPARTMENT OF THE NAVY, AGENCY.

Appeal Nos. 01982627 & 01990407

Agency No. 94-60050-N04
Hearing No. 340-95-3739X
August 22, 2001

DECISION

*1 On January 17, 1998, the complainant filed Appeal 1 with this Commission from a final agency decision (FAD)
dated December 10, 1997. It adopted the recommended decision of an Equal Employment Opportunity Commission
Administrative Judge (AJ) which found discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. 621 et seq. The FAD ordered equitable remedies, and gave the complainant an opportunity to submit evidence
of damages to the agency. Thereafter, the complainant timely filed Appeal 2 with this Commission from a FAD dated
September 2, 1998 which awarded and denied claimed compensatory damages. Appeals 1 and 2 are accepted under 29
C.F.R. 1614.405.

ISSUES PRESENTED

Whether (1) the complainant timely filed Appeal 1, (2) the agency properly calculated back pay, (3) the complainant
is entitled to compensation for the adverse tax consequences of receiving a lump sum back pay award, (4) the agency
properly denied front pay, (4) certain information should be expunged from the complainant's personnel file, (5) proper
relief included agency officials being counseled and trained, (6) the complainant timely submitted certain evidence on
pecuniary compensatory damages, and (7) the agency properly calculated damages.

BACKGROUND

The complainant formerly worked at the Marine Corps Air Station in El Toro, California. He was the Manager of
the Accounting Branch, NF-4, in the Support Division of the Morale, Welfare & Recreation (MWR) Department.
In August 1992, the agency issued notices of removal effective October 2, 1992 by means of a Business Based Action
(BBA) to all members of the Support Division. This included the complainant and its four highest level managers. These
managers filed EEO complaints alleging discrimination, in part, on the bases of their sex (male) and age when they were
discharged. 1 Following a consolidated investigation of the discharge claim and separate investigations of other claims,
the complainants had a consolidated hearing before an Equal Employment Opportunity Commission Administrative
Judge (AJ). The AJ issued separate recommended decisions for each active complainant, which the agency adopted.
The AJ and the agency found that the complainant was discriminated against on the bases of age and sex when he was
terminated by means of a BBA, and when he was not selected for the position of Supervisor of General Accounting,
NF-4 in September 1992. This position was located in the MWR at El Toro. It was created in anticipation of the BBA.

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On appeal, the complainant argues that he is entitled to further relief. In response, the agency argues that complainant's
Appeal 1 is untimely, that he untimely submitted certain evidence on pecuniary damages, and that he is not entitled to
further relief. 2

ANALYSIS AND FINDINGS

Timeliness

*2 The first FAD was issued on December 10, 1997. It was mailed to the complainant, with a copy to his attorney.
By letter postmarked January 17, 1998, the complainant filed a document at the address to file an appeal with the
Commission entitled Submission of Damages for the Claimant, Edwin G. Holler. It argued for certain calculations of
back pay and interest and compensatory damages, and for front pay rather than reinstatement. We construe this to be
an appeal of the December 10, 1997 FAD. Because the FAD does not contain a certificate or other proof verifying when
it was mailed and the record does not show when the complainant's attorney received the decision, we deem Appeal 1 to
be timely under 29 C.F.R. 1614.402(b). 3 Some issues have been resolved since the filing of this appeal. The unresolved
issues are discussed below.

BACK PAY

The FAD ordered, in part, reinstatement and back pay up to the date of reinstatement. By letter dated January 14,
1998, the agency offered the complainant reinstatement to the position of Director, General Accounting Division. The
complainant rejected the offer on February 9, 1998. The agency paid back pay from October 3, 1992 through February
9, 1998, and this period is undisputed. The subsequent period is addressed in the front pay discussion below.

In March 1998, the agency issued the complainant a check for back pay and interest thereon in the amount of $61,643.77.
But the parties continued to engage in negotiations on the calculation of back pay and interest. This resulted in the
agency issuing a check to the complainant in June 1998 in the amount of $31,587.57, and a final check in late October
1998 for $6,240.65. In October 1998, the complainant sent correspondence to the Commission delineating his concerns.
Salary rate, including bonuses, is the only back pay dispute remaining.

For the back pay period up to May 1996, the agency derived the complainant's rate of back pay based on the
compensation comparative employees received during this time. This included bonuses. From May 1996 onward, the
agency's back pay calculations were based on the complainant being a GS-12, with saved pay. The complainant was
discriminatorily not selected to the position of Supervisor of General Accounting, NF-4 in September 1992, which
succeeded the job from which he was removed. The successor job was converted to a GS-12 level pay position in May
1996.

The complainant avers that the back pay should be based on an extrapolation of his historic pay from 1987 to October
2, 1992. He argues that the financial condition of the MWR at El Toro Exchange deteriorated because of the removal
of himself and the other older male complainants.

The AJ found the agency discriminated against three of the four active complainants when it removed them from their
positions. The AJ found unrebutted the complainants' testimony that their jobs largely consisted of financial oversight
and their absence greatly contributed to the financial problems of the MWR at El Toro Exchange. The AJ also found
that testimony the MWR at El Toro was having financial problems before the BBA was generally undisputed.

*3 The agency argues that salary history is not a good measure because the pay system changed. In approximately
May 1991, the MWR switched the complainant and others from the universal annual (UA) salary plan to the pay band
system. The UA plan was nondiscretionary and mirrored the federal government's general schedule (GS) pay plan. The

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new pay band system had a large discretionary component. Because of this change in pay systems, we find that making
extrapolations from the complainant's historic pay is not an appropriate method to determine salary assumptions during
most of the back pay period. Moreover, making extrapolations from salary levels dating to 1987 is too far removed to
be a good measure.

Further, the complainant failed to establish that salary assumptions should be recalculated, to the extent his removal
was responsible for the financial deterioration of the Exchange. The complainant failed to establish that the financial
condition of the MWR at El Toro adversely impacted salary levels. The Commission notes that in closing argument
before the AJ, the complainant argued that despite the claimed deteriorating financial condition of the MWR at El Toro
and the BBA, there were multiple promotions, raises and bonuses. 4

TAX CONSEQUENCES

The complainant was terminated and not selected for a position in violation of Title VII and the ADEA. He argues
that he should be compensated for the alleged adverse tax consequence of receiving a lump sum back pay award. He
cites Kalra v. Department of Transportation, EEOC Appeal No. 01924002 (February 25, 1994) (increased tax liability
stemming from a lump sum back pay award, to the extent proven, is awardable as consequential pecuniary compensatory
damages). The Commission later vacated the portion of Kalra awarding damages on the grounds that they were not
available for acts of discrimination that occurred prior to November 21, 1991. 5 Effective November 21, 1991, Title
VII was amended to allow the award of compensatory damages against the federal government. Section 102(a) of the
Civil Rights Act of 1991, codified as 42 U.S.C. 1981a. The purpose of compensatory damages under Title VII is to
compensate an employee for the proximate injury caused by employment discrimination. Compensation for the adverse
tax consequences of receiving a lump sum back pay award meets this criteria. 6

The agency argues that the equitable remedy of an award to cover additional tax liability of receiving back pay in a lump
sum is not available. In light of the cases below, we disagree. The complainant argues that he should be compensated
for the alleged adverse tax consequence of receiving a lump sum back pay award. Sears v. Atchison, Topeka & Santa Fe
Railway, Company, 749 F.2d 1451, 1456 (1984), a Title VII employment discrimination case, found that a district court
may include a tax component in a back pay award (an equitable remedy) to compensate class members for their increased
taxes as a result of receiving over 17 years of back pay in one lump sum. The court in O'Neill v. Sears, Roebuck and
Company, 108 F. Supp.2d 443, 446-47 (E.D. Penn. 2000) found that make whole relief under the ADEA for a terminated
employee included an award for the tax consequences of receiving back and front pay all in one year rather than income
being earned over time. The court explained that the goal of the ADEA is to allow a plaintiff to keep the same amount
of money he would have earned had he not been unlawfully terminated.

*4 We need not categorize whether the potential award to the instant complainant for the adverse tax consequences of
receiving lump sum back pay is a legal or equitable remedy since it is available under at least one of these theories.

The complainant avers that he paid an additional $7,116.09 in taxes as a result of the lump sum back pay award in March
1998. He averred that the 1997 total combined federal and state tax rate was 23.5% and the average combined tax rate
from 1989 to 1992 was 12.8%. He argues that the lump sum back pay with interest payment was subject to the higher
rate, and he is entitled to reimbursement for the difference between these rates. He also indicated that subsequent lump
sum payments resulted in some additional tax liability.

But the earlier lower rate, for the most part, is not derived from the correct years, i.e., those during the back pay period.
Further, the complainant used the 1997 tax rates for back pay received in 1998. The complainant's calculations do not
take into account deductions and other factors that would affect his taxes, and are not broken down by year. Courts
that discuss claims for compensation for additional tax liability stemming from a lump sum payment have demanded

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probative calculations by complainants. Barbour v. Medlantic Management Corp., 952 F.Supp. 857, 865 (D.C. 1997)
(denied award due to failure to provide evidence on difference between taxes paid on lump sum front pay award and
amount of taxes that would have been paid had the salary been earned over time); Hukkanen v. International Union of
Operating Engineers, 3 F.3d 281, 287 (8 th Cir. 1993) (district court may deny award where the plaintiff failed to provide
evidence on the tax enhancement amount or convenient way for the court to calculate it).

The complainant has the burden of establishing the amount of increased tax liability. Id. at 287. This matter is remanded
to the Hearings Unit of the Los Angeles EEOC district office in accordance with the order below.

FRONT PAY

Reinstatement into an appropriate position generally is preferred to an award of front pay. When placement into an
appropriate position is not possible, the employer must make whole the victim of the discrimination until such placement
is possible. Front pay may be awarded in lieu of reinstatement when: (1) no position is available; (2) a subsequent working
relationship between the parties would be antagonistic; or (3) the employer has a record of long-term resistance to anti-
discrimination efforts. The fact that front pay is awarded in lieu of reinstatement implies that the complainant is able to
work but cannot do so because of circumstances external to the complainant. Brinkley v. United States Postal Service,
EEOC Request No. 05980429 (August 12, 1999).

The complainant argued that reinstatement was improper because he would have to work with agency employees who
were involved in his removal and defended his removal during the EEO process, which would be hostile. There was no
finding, however, that the complainant worked in a hostile environment prior to his removal, and his argument about
returning to antagonistic relationships was not supported by the record.

*5 In July 1998, the Director of MWR at El Toro affirmed that the Marine Corps Air Station in El Toro was being
scaled back and was scheduled to close in July 1999. He affirmed this would be mirrored at the MWR at El Toro, with
closure prior to July 1999, and that the complainant's position was expected to continue at least until early 1999, and
perhaps later. The complainant argued that given the impending base closure and concomitant cessation of the offered
job, reinstatement was not appropriate. We disagree. The offered job was expected to last a year or more, enough to
make it a reasonable offer. Accordingly, the Commission denies front pay.

PERSONNEL FILE

The complainant argues that because his removal was discriminatory and reinstatement was ordered, his personnel file
should be expunged of references to his removal. We agree. The order of reinstatement with back pay implicitly included
the requirement that references to the removal be expunged from the complainant's personnel file. If the agency has not
already done so, it must do so.

COUNSELING AND TRAINING AGENCY OFFICIALS

The complainant argues that we should order agency officials involved in his discriminatory removal be counseled and
trained. The AJ did not recommend this relief, and it was not ordered by the agency. Such relief is discretionary, and we
find the AJ used proper discretion. Moreover, the facility where the discrimination occurred has been closed.

COMPENSATORY DAMAGES

Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and nonpecuniary losses that
are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available
Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992), at 8. This guidance is

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on the Commission's website at www.eeoc.gov. Pecuniary losses are out-of-pocket expenses incurred as a result of the
employer's unlawful action, including medical and other quantifiable out-of-pocket expenses. Id. Past pecuniary losses
are pecuniary losses incurred prior to the date of the resolution of the damage claim. Id. at 8-9. Future pecuniary losses
are losses that are likely to occur after the resolution of litigation. Id. at 9. Nonpecuniary losses are losses that are not
subject to precise quantification including emotional pain and loss of health. Id. at 10.

Past Pecuniary Damages

As an initial matter, the agency denied some claims for pecuniary damages due to a lack of documentation. On appeal,
the complainant submits additional documentation. The agency argues that it should not be considered because it was
untimely submitted. We disagree. At the appellate level, the Commission has discretion to consider such additional
documentation. Cf. 29 C.F.R. 1614.404(a) (the Commission may supplement the record by investigation) and 29 C.F.R.
1614.405(a) (with the exception of factual findings by an AJ, appellate review is de novo). After the agency asked the
complainant to submit proof of compensatory damages, he complied in good faith, and credibly states it took additional
time to obtain some of the documentation he submitted on appeal. Accordingly, the Commission exercises its discretion
to consider the additional documentation.

*6 To continue earning an income after he was removed, the complainant took a job as a Controller, NF-4, from
November 1992 until his retirement in May 1997. The agency deducted the salary the complainant earned as mitigation
from back pay. The job was located at the Marine Corps Air Ground Combat Center in Twentynine Palms, California,
145 miles from his home. The complainant stated his effort to find a closer job was unsuccessful. His family continued to
reside in the family home. While working, the complainant initially stayed in temporary housing at Twentynine Palms,
then moved to a trailer home there. The agency concedes that it is liable for damages for the costs of maintaining a second
residence since this resulted from the termination, but denied most of these damages due to lack of documentation.

Job Search Expenses

Prior to securing his new job, the complainant incurred job search expenses. The complainant submitted to the agency
a list of job search expenses that were derived from personal checks written, plus mileage. On appeal, the complainant
submits photocopies of the underlying canceled checks. The expenses were primarily for office supplies, stamps, paying
for typing, and an employer listing. Because these expenses of $444 were adequately documented and proximately caused
by the removal, they are awarded. The complainant credibly represented that between August 1992 and November
1992, he drove 1,370 miles searching for jobs and 20 miles looking for housing. The Commission takes official notice
that the reimbursement rate the federal government paid its employees when conducting official business in a privately
owned vehicle in 1992 was 25. The complainant is entitled to $348 (1,390 miles @ 25 per mile). He also paid $93 for
a telephone answering machine. This expense is prorated by 50% (prorated to $47) because it also has many other uses.
The complainant is awarded the sum of the above three expenses, i.e., $839.

Temporary housing

Almost all the complainant's temporary housing was military lodging, i.e., billeting. The complainant averred that he
used this lodging from December 1992 to June 1993. As documentation, he submitted to the agency a list of individual
charge entries derived from his personal credit card bills. On appeal, the complainant submits photocopies of these bills.
For the months of December to February, the bills contain charges by the Twentynine Palms Marine Corps Exchange
which the complainant attributed to billeting, i.e., temporary MWR lodging. With the exception of charges on December
8, February 8, and February 12, the charges were both recurring in nature and had even dollar amounts, consistent with
rent. Less the above three dates, the Commission finds the rent of $638 is adequately substantiated. For the months
of February though June, the bills reflect charges in the amount of $1,167 to a billeting fund and one night in a motel

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located in Twentynine Palms. This additional rent of $1,167 is adequately substantiated. Accordingly, the Commission
awards the sum total of $1,805 in rent the period of December 1992 to June 1993.

Trailer home

*7 The complainant indicated that he rented a trailer home from June 21, 1993 to July 21, 1993, paying a $100 rent
deposit and $385 more in rent. On appeal, he adequately documented this expense with evidence of payment to the RV
resort by check and a credit card. Hence the sum of $485 is awarded by the Commission.

The complainant purchased a trailer home for use at Twentynine Palms in July 1993, and sold it in June 1997, less than
a month after retiring from his job there. He submitted computations to the agency, supported by receipts, indicating
that with the cost of purchase, including fees, taxes and financing, less the resale price, he lost $3,573.08 on the sale of
the trailer. The agency awarded this amount. On appeal, the complainant contends that he is entitled to an additional
$1,786.54 for the balance on the loss of selling the trailer plus interest. Less the claim for interest, the complainant does
not explain these additional losses. We are unable to find any, with the exception of $87.40 for classified advertising to
sell the trailer, and $232 for trailer towing and title soon before its sale. Accordingly, the Commission awards the sum
additional expense of $319. The claim for interest will be addressed below.

The complainant submitted to the agency a list of trailer expenses, including the $319.40 expense above, that were
derived from documentation of personal checks. On appeal, the complainant submits photocopies of the canceled checks.
The expenses covered the almost four years the complainant lived in the trailer. For the most part, they constituted
monthly rent for a trailer lot, which varied between $225 to $245, trailer license fees, trailer insurance, gas and electric,
maintenance and repair to the actual trailer and appliances within. They also included small expenses such as a ladder
for the trailer exterior, hoses and cleaning and household supplies. The above expenses total $14,470, and are adequately
documented and proximately caused by the complainant's termination. Accordingly, the Commission awards these
expenses of $14,470.

The requested trailer expenses also included furnishings, including trailer linens, a television and space heater. The
complainant spent $1,099 for furnishings. Assuming the fair market value of these items upon sale of the trailer was
about one third of this, the Commission finds the complainant lost $733 on these furnishings, and awards this amount.
He also claimed an American Automobile Association (AAA) expense for added mileage coverage. The Commission
denies this because the complainant did not show AAA had such a surcharge.

The complainant asks for reimbursement for trailer items on hand after the sale of the trailer. He provided estimated
values of these items. The first group are disposable household supplies and cleaners. Other trailer items on hand included
small kitchen items, bedding, tools, a vacuum, and the like. Some trailer items on hand were already covered above as
trailer expenses. Also, to the extent trailer items could be sold for their estimated value or merged with household items
in the primary residence, there was no loss. Moreover, some of these items, such as small kitchen items and the like,
may have been borrowed from the family home. The Commission is unpersuaded that the complainant is entitled to an
additional award for trailer items on hand.

Communications Expenses

*8 The complainant affirmed that he was motivated to save money, so he used a pager to receive notice of family calls
rather than have a telephone in his trailer. The complainant submitted a request for reimbursement to the agency, and
on appeal provides photocopies of the checks he wrote that verify the cost. This documentation indicates that he started
pager service on January 17, 1994, and purchased the pager at that time. The service was paid on an annual basis. The
cost of the pager, and pager service through May 1997 when the complainant left Twentynine Palms, was proximately

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caused by his removal since he used the pager for communication in the trailer rather than a telephone. Accordingly, the
Commission awards the complainant the documented expense of $462, which does not include service past May 1997.

Based on an estimate of $35 a month in long distance calls while living in Twentynine Palms, the complainant requested
the agency reimburse him $1,890. This covered the 54 months the complainant lived in Twentynine Palms. To make
outgoing long distance calls in Twentynine Palms, the complainant used a calling card.

On appeal, the complainant submits long distance telephone bills to document his expense. This covered long distance
calls made from his primary residence and calling card calls from October 1992 to November 1998. The complainant
stated he included long distance calls made to lawyers, doctors, dentists, co-complainants, family and so forth, and
requests $1,699.20. The documentation of calls is hundreds of pages.

Because the documentation is voluminous and the parties have not yet attempted to determine together which calls are to
be reimbursed, the matter of long distance calls will be remanded to the Hearings Unit of the Los Angeles EEOC district
office. The Commission provides the following guidance. Prior to moving to Twentynine Palms, only long distance calls
for job searching and making arrangements in Twentynine Palms can be reimbursed. Up to November 4, 1998, calls to
lawyers and co-complainants are not reimbursable because they were connected to cost of litigation, which was separately
settled by the parties on that date. Generally, the agency is responsible for reimbursement of long distance calls that are
proximately caused by the removal. Obvious examples are calls from the complainant's family home to his pager, and
calling card calls by the complainant to his family home.

Mileage

The complainant's family residence was 145 miles from Twentynine Palms. He worked and lived in Twentynine Palms
during the week. Family members of the complainant continued to live in his family residence, where he returned each
weekend. Because the complainant's weekly mileage between his two residences was proximately caused by his removal,
it is reimbursable.

The complainant's reimbursement request indicated that he made 49 round trips a year between his two residences. This
is credible. The Commission takes official notice that the reimbursement rate the federal government paid its employees
when conducting official business in a privately owned vehicle in 1992 though 1994 was 25, and that this increased to
30 in January 1995 and to 31 in June 1996.

*9 For the two years and one month period of December 1992 through December 1994, the complainant is entitled
to $7,395 in mileage reimbursement (102 weeks--- 29,580 miles @ 25 per mile). For the year and five month period of
January 1995 through May 1996, the complainant is entitled to $6,003 (69 weeks---20,010 miles @ 30 per mile). For the
one year period of June 1996 through May 1997, the complainant is entitled to $4,405 (49 weeks--14,210 miles @ 31 per
mile. The total mileage reimbursement for commuting between the two residences is $17,803, and this amount is awarded.

Miscellaneous expenses

Much of these expenses were for using a gardener to take care of the yard at the family home between November 1995
to February 1997. They also included the complainant's car being painted and the purchasing a winter coat. Despite
the complainant's arguments, we are not persuaded these expenses were proximately connected to his termination, and
hence deny them.

Cost of suit

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As noted above, all costs of pursuing the instant claim up to November 4, 1998 are not reimbursable because attorney's
fees and costs were settled by the parties on that date. Subsequent costs incurred by the complainant should be submitted
with his attorney's next petition for fees and costs.

Interest

The complainant requests interest on all past pecuniary damages. But interest on damages does not accrue until the
agency incurs the underlying liability, i.e., when this decision becomes final. Hogeland v. Department of Agriculture,
EEOC Appeal No. 01976440 (June 14, 1999).

Nonpecuniary Damages

The complainant stated that when he learned he lost his job, he felt very scared, angry, and remorseful, and memories of
the removal still upset him from time to time. His self confidence and morale were hurt when he was repeatedly turned
down for jobs, and the complainant felt like a failure when people asked him why he was no longer at his old job and
had not found employment. For sometime, he emotionally withdrew.

The complainant explained that he lived in his community for 26 years and did not want to uproot his family for an
unknown period of time. He stated that moving would have created a major impact on him because he would have to
find new services for his daughter with a severe disability, and disruption of her life would be traumatic to her and more
so to everyone around her. The complainant affirmed that the conditions of his temporary housing were unpleasant,
and it was stressful because he had to pack and unpack each week and was never guaranteed a space during the week.
Further, life in the trailer was cramped and lonely, and he routinely felt depressed. The complainant complained that
while living in the trailer it was quite unpleasant in the winter because he had to walk outside to a bath house to shower.
Further, over a 4 year period the complainant was tired from the long trips between the two residences and largely
deprived of family except on weekends. In fact, a reading of affidavits by the complainant and family members reveals
that the complainant arrived home exhausted on Friday evenings after working all day and driving 2 hours, and went
to bed early Sunday evenings to prepare for the long drive Monday mornings. He was in his 60s. He missed birthdays
and wedding anniversaries, and the relationship with his wife became strained. The complainant stated that he finally
resigned from his job at Twentynine Palms due to the stress caused by the separation.

*10 The complainant's wife and grown children also attested about this time. A daughter with a severe mental disability
who lived in the family home cried every Sunday before the complainant made his trip back to Twentynine Palms, and
this was stressful for the complainant. Instead of being with his family and pets during the week and eating home cooked
meals, the complainant lived alone and ate frozen meals. As already noted, the complainant was tired on weekends
and short on time. This created conflict between the complainant and his wife because the complainant wanted to stay
home and his wife, who did not drive, wanted to go out. They argued more. Their relationship was injured, i.e., did not
talk as much, hold hands, or take walks together. The complainant became irritable and impatient. Family members
also attested to the suffering they went through because the complainant was unavailable. Compensatory damages are
available to federal sector complainants, not their family members under the Civil Rights Act of 1991. Carpenter v.
Department of Agriculture, EEOC Appeal No. 01945652, footnote 4 (July 17, 1995). But pain and suffering caused to
the complainant because his family members suffered is compensable.

The agency found that the complainant sustained $50,000 in nonpecuniary damages, and reduced this amount to $25,000.
It reasoned that discrimination was found on the bases of sex and age, and compensatory damages are not available
under the ADEA, which prohibits age discrimination. This reduction was improper because all the actions that were
discriminatory violated Title VII. Santiago v. Department of the Army, EEOC Appeal No. 01955684, footnote 1 (October
14, 1998).

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The Commission's policy is to make damage awards for emotional harm consistent with awards in similar cases. In
Bernard v. Department of Veterans Affairs, EEOC Appeal No. 01966861 (July 17, 1998), the Commission awarded
$80,000 in nonpecuniary damages to an employee who was denied a reassignment and not reasonably accommodated
where he presented evidence through his own testimony and that of this friends and family that over a five years he became
depressed, withdrawn, hopeless about his ability to work independently, cynical, angry, and during part of this time
had ringing in the ears, headaches, teeth grinding and insomnia. In Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999), the Commission awarded $50,000 in nonpecuniary damages to an employee
who after being detailed and reassigned suffered a diagnosed acute distress disorder, and aggravation of her depressive
condition which was expected to last five years. During the approximately first two years, the employee lost energy,
enjoyment in activities, ceased recreating and socializing, became unkempt in appearance, was anxious, had difficulty
concentrating, had insomnia and nightmares, and gained 100 pounds. After this time, she entered a Master's degree
which she successfully completed and got a new job where she got along with co-workers and her superiors were satisfied
with her work.

*11 The Commission finds that the complainant sustained $75,000 in nonpecuniary damages. Evidence by a health care
provider is not required to prove nonpecuniary damages, but the absence of such evidence can impact the amount of the
award. Lawrence v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996). While the complainant
did not submit medical evidence of psychological damages, his description of his injury is persuasively corroborated by
the statements of family members and is consistent with being separated from his family during the week for 4 years
and long weekend commutes. Moreover, the complainant has established a causal nexus between the discrimination
found and his injuries, i.e., over a 4 year period living alone in sparse conditions, separation from his family, weekly
long trips causing physical exhaustion, and damage to his marital relationship. The severity and length of this hardship
warrants nonpecuniary damages of $75,000.

As the complainant is a prevailing party, he is entitled to additional attorney fees. See the order below.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it is the decision of the Commission to modify the
relief provided by the agency.

ORDER

(1) The agency must issue the complainant a check for $115,489.08 for pecuniary and nonpecuniary damages awarded
in this decision, less any damages already paid, within 90 calendar days of the date this decision becomes final.

(2) The agency is ordered to expunge the complainant's official personnel file of references to his removal by means of
a BBA in October 1992.

(3) The issues of compensation for the increased tax liability that the complainant sustained as a result of being paid
lump sum back pay awards in 1998, if any, past pecuniary damages for long distance telephone calls, and attorney's
fees and costs are REMANDED to the Hearings Unit of the Los Angeles EEOC district office. Thereafter, the AJ
shall issue a decision on these issues in accordance with 29 C.F.R. 1614.109, and the agency shall issue a final action
in accordance with 29 C.F.R. 1614.110 within forty (40) days of receipt of the AJ's decision. This decision provides
guidance regarding how to calculate reimbursable long distance telephone expenses. The burden of proof to establish
the amount of additional tax liability, if any, created by the lump sum back pay awards is on the complainant. The
calculation of additional tax liability must be based on the taxes the complainant would have paid had he received the
back pay in the form of regular salary during the back pay period, versus the additional taxes he paid due to receiving

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the back pay lump sum awards in 1998. The agency shall submit copies of the AJ decision and the final agency action
to the Compliance Officer at the address set forth below.

(4) The complainant may petition for enforcement or clarification of this order under 29 C.F.R. 1614.503. The petition
for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the paragraph
entitled Implementation of the Commission's Decision.

*12 The agency is directed to submit a report of compliance, as provided in the paragraph entitled Implementation of
the Commission's Decision. The report must include evidence that the corrective actions have been implemented. The
agency shall send a copy of the report and all its enclosures to the complainant.

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 (M0900)

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.

*13 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)

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EDWIN G. HOLLER, COMPLAINANT, v. ROBERT B...., EEOC DOC 01990407...

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:

Frances M. Hart
Executive Officer
Executive Secretariat

Footnotes
1 They are Van Hoose, Director of the Support Division; Goetze, Manager of the Maintenance Branch, and Lutrell, Manager
of the Operations and Compliance Branch. They have appeals pending before this Commission. The fifth manager was a
former complainant who died during the pendency of his claim. He was Manager of the Property and Prepaid Branch.
2 All four active complainants are represented by the same attorney. As already noted, parts of their cases were processed
together. Documents applying to all the complainants can be found in different appeal files. Hence, the records of all the
complainants were reviewed. They are Holler, 01982627 and 01990407; Goetze, 01991530; Lutrell, 01981988; and Van Hoose,
01982628 and 01990455.
3 By letter postmarked February 14, 1998, the complainant filed another appeal on the first FAD pursuant to 29 C.F.R.
1614.504(b). The appeal argued that the agency was not in compliance with the FAD since it miscalculated back pay,
and included materials requesting front pay. This appeal was timely because it was filed within 30 days of the agency's
determinations of January 29, 1998 and February 3, 1998 that it was in compliance with its FAD. It is merged with Appeal 1.
4 After being asked about the financial crises, the Deputy Director of the MWR at El Toro was asked why employees received
significant raises and bonuses. He responded that outstanding performers must be recognized and rewarded. (Hearing
Transcript, H.T. 306). When asked about economic concerns, the Deputy Director testified that outstanding performers must
be rewarded because they are the ones who will work hard to improve the situation. (H.T. 321).
5 Kalra v. Department of Transportation, EEOC Request No. 05940516 (May 31, 1996).
6 Compensatory damages are not available against the federal government under the ADEA. Falks v. Department of the
Treasury, 05960250 (September 5, 1995).
EEOC DOC 01990407 (E.E.O.C.), EEOC DOC 01982627, 2001 WL 991924

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