01a42334
05-17-2005
Alicia A. Manalo, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Alicia A. Manalo v. Department of the Navy
01A42334
May 17, 2005
.
Alicia A. Manalo,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A42334
Agency Nos. 95-00207-003; 96-00207-001
Hearing Nos. 150-99-8558X; 150-99-8559X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal in the above-entitled matter. The Commission previously found
that the agency discriminated against complainant by failing to provide
her an accommodation for her religious beliefs as provided under Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq.<1> Specifically, the Commission found that the agency
unlawfully refused to approve complainant's request for annual leave
for a religious observance on Good Friday without showing any undue
hardship. The Commission remanded the case for a determination of
compensatory damages, attorney's fees and costs incurred as a result of
the discriminatory conduct.
The agency issued a final decision finding that complainant failed to
prove entitlement to compensatory damages, attorney's fees or costs.
According to the agency's decision, complainant claimed $881.71 in
medical expenses, $1405.94 in psychiatric treatment; $125.40 in postal
fees and $482.50 in legal expenses. Complainant also claimed she should
be restored 173.10 hours in annual leave and 566.14 hours of sick leave
taken in response to the discrimination. Complainant claimed she should
be awarded $20,000.00 representing a loss of consortium, $200,000.00
in non-pecuniary damages for emotional distress and suffering, future
pecuniary damages of $10,000.00 and future non-pecuniary damages of
$50,000.00.<2>
In refusing to award any amount for compensatory damages, the agency
reasoned that the report of the psychiatrist indicated complainant's
nightmares, nervous tension and other symptoms were related to her
supervisors' other conduct but not specifically to their denial of a
religious accommodation. The agency argued that the evidence demonstrated
complainant's supervisor actually approved her request for leave for
the day in question and that her symptoms began well after the alleged
discriminatory act. The agency further reasoned that complainant's
witness statements did not relate any of her emotional distress and
suffering to the discriminatory conduct in particular.
For these reasons, the agency found that none of complainant's claims for
past and future medical expenses, past and future emotional distress,
or loss of consortium were supported. The agency denied complainant's
claims for attorney's fees because they were not supported by a verified
affidavit and were not shown to be related to representation in the
instant case. The agency did not address complainant's claim for
restoration of sick and annual leave.
ANALYSIS AND FINDINGS
When discrimination is found, the agency must provide the complainant
with a remedy that constitutes full, make-whole relief to restore her
as nearly as possible to the position she would have occupied absent
the discrimination. See, e.g., Franks v. Bowman Transportation Co.,
424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,
418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395
(July 21, 1994). Pursuant to section 102(a) of the Civil Rights Act of
1991, a complainant who establishes unlawful intentional discrimination
under either Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. may receive compensatory damages
for past and future pecuniary losses (i.e., out-of-pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish)
as part of this "make whole" relief. 42 U.S.C. � 1981a(b)(3).
In order to receive an award of compensatory damages, a complainant must
demonstrate that he or she 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 recons. den.,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992),
at 11-12, 14. In this regard, complainant stated that before her
supervisor denied her leave for religious observances on Good Friday,
she had led an active religious life as she had been raised in a �very
conservative Christian home� and was a devout Catholic. She had held
Catholic priests in high regard, �next to God�, and believed that Good
Friday was the �holiest day of the year�. Complainant's beliefs were so
deeply held that she had considered becoming a nun. She stated that the
priest for whom she worked, �destroyed her faith and beliefs.� When her
leave request was denied and her truthfulness was questioned in taking
the day for religious purposes, complainant stated she was grievously
hurt and tormented emotionally. Although her medical reports document
that she sought professional medical treatment starting in June 1995,
her statements indicate that she had emotional reactions but did not
seek immediate treatment. Also relevant is the fact that there is no
evidence complainant received any treatment for depression or other mental
conditions prior to the time these priests' supervisory duties began.
This is not to say that we conclude all of complainant's emotional
distress and related damages were related to the discriminatory
incident. As we observed in our previous decision, some of complainant's
difficulties stemmed from a personality conflict with her new supervisors
and not from her membership in a protected class. Nevertheless, the
record supports that complainant had an extreme reaction to the priests'
questioning of her sincerity of her religious beliefs when they denied
her leave request. In deciding what amount to award for complainant's
non-pecuniary damages, the Commission applies the principle that a
tortfeasor takes its victims as it finds them. Wallis v. United States
Postal Service, EEOC Appeal No. 01950510 (November 13, 1995) quoting
Williamson v. Handy Button Machine, 817 F.2d 1290 (7th Cir. 1987).
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. EEOC Notice
No. 915.002 at 8. Objective evidence of compensatory damages can include
statements from the complainant concerning his or her emotional pain or
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation,
injury to credit standing, loss of health, and any other non-pecuniary
losses that are incurred as a result of the discriminatory conduct.
Statements from others, including family members, friends, health care
providers, other counselors 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.
See Lawrence v. United States Postal Service, EEOC Appeal No. 01952288
(April 18, 1996), citing Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993).
Although the agency disputes that any of the evidence complainant
submitted supports her claims for non-pecuniary losses, we conclude
that both her treating physician and her psychiatrist related her
symptoms and diagnosis of post traumatic stress disorder, to the
actions of her supervisors. Since one of the actions for which her
supervisors was responsible was the discriminatory denial of leave
for a religious observance, we conclude that their statements provide
a connection to complainant's medical condition. As the Commission
has stated, evidence from a health care provider or other expert is
not a mandatory prerequisite for recovery of compensatory damages for
emotional harm. Lawrence, EEOC Appeal No. 01952288. In this case,
both of complainant's treating physicians as well as her own statement,
confirm that she suffered emotional distress and had chest pains as result
of her interactions with her supervisors. The psychiatrist prescribed
two forms of medication for complainant's symptoms and psychotherapy.
Complainant also submitted the statements of her husband, friends and
co-workers who corroborate that she showed sadness, was depressed,
and had crying spells during the time period in question. Therefore,
complainant has demonstrated by competent evidence that she suffered
emotional distress, pain and suffering as a result of her supervisors'
discrimination.
Complainant claims emotional damages and related medical expenses for
an eight year period of time from April 1995 through 2003, however,
she failed to prove that this entire period was related solely to the
incident of denial of leave in April 1995. The Commission concludes it is
reasonable to attribute a nine month period following the denial of leave
to the discriminatory conduct. During this time period, complainant was
hospitalized on two occasions, received psychotherapy and medication.
The psychiatrist's medical report in January 1996 stated that at that
time, complainant had recovered from the physiological response, panic
attacks and anxiety, although they were not in total remission.
Comparing similar cases and considering the severity of the harm and
length of time, the Commission finds that $15,000.00 is reasonable
to compensate complainant for her extreme emotional distress and the
interference with her marital relationship.<3> Pearman v. Department
of the Navy, EEOC Appeal No. 07A40063 (November 18, 2004)(incidents
of retaliation over four months warranted an award of $15,000.00 where
other factors may have contributed to damages);Reneau v. United States
Postal Service, EEOC Appeal No. 01A30568 (April 20, 2004) ($20,000.00
awarded for interrupted relationships with spouse, family friends and
to account for severity and duration of harm); Daniels v. United States
Postal Service EEOC Appeal No. 07A30028 (September 3, 2003) ($10,000.00
awarded based on complainant's statement about a six month period of
time but without medical evidence); Puente v. Department of Homeland
Security, EEOC Appeal No. 07A30018 (October 15, 2003) (six month period
of discrimination caused debilitating stress for which medication was
prescribed, $10,000.00 was awarded).
We find that the past pecuniary expenses in the form of medical costs
incurred during the relevant time period and for which documentation was
provided, amounted to $735.00 for psychotherapy sessions, evaluations
and doctors visits. Postal fees proven with appropriate documentation
totaling $98.55, are allowed. The Commission rejects complainant's
claim for future pecuniary and non-pecuniary damages as not supported
by adequate documentation of specific amounts to be expected or a nexus
to the discriminatory incident.
The Commission also makes no award for attorney's fees as the amounts
claimed were not supported by adequate documentation or an affidavit
indicating that they were related to representation in this matter.
Addressing complainant's claim for reimbursement of leave taken,
restoration of leave taken as a direct result of discrimination to avoid
or to recover from discrimination is equitable relief under Title VII but
is not part of an award for compensatory damages. See Whiting v. ACTION,
EEOC Request No. 059000093 (June 27, 1990); McGowan-Butler v. Department
of the Treasury EEOC Request No. 05940636 ( September 9, 1994). The time
for complainant to raise the issue of restoration of leave was through
a petition for reconsideration of our previous decision when the issue
of equitable relief was addressed. Because complainant failed to raise
the issue until now, the issue is not properly before us and therefore,
her claim for restoration of leave is rejected.
ORDER
The agency will take the corrective actions outlined below within 45
days of the date this Order becomes final:
1) The agency will issue a check payable to complainant representing
payment for non-pecuniary damages in the amount of $15,000.00;
2) The agency will issue payment to complainant for past pecuniary
medical expenses of $735.00, and postal costs of $98.55;
The agency will notify the Commission of its compliance as directed 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.
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.
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
May 17, 2005
__________________
Date
1Manalo v. Department of the Navy, EEOC Appeal
No. 01A14800 (May 23, 2003).
2Complainant also claimed promotion to GS-7 with back pay, a letter
restoring her good reputation from certain agency officials and to her
Congresswoman, and expunging of negative performance appraisals by the
discriminating managers as well as a current supervisor. These claims
will not be addressed as they were not timely raised during the processing
of complainant's complaints.
3The Commission recognizes non-pecuniary damages awards for loss
of consortium and for interference with familial relationships.
See Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995).