Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas), Agency.

Equal Employment Opportunity CommissionMar 11, 1999
01973250 (E.E.O.C. Mar. 11, 1999)

01973250

03-11-1999

Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas), Agency.


Billy D. Yeats v. United States Postal Service

01973250

March 11, 1999

Billy D. Yeats,

Appellant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast/Southwest Areas),

Agency.

Appeal No. 01973250

Agency No. 4-G-780-1072-94

Hearing No. 360-95-8221X

DECISION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (Commission or EEOC) from a final agency decision (FAD)

concerning his allegation that he was discriminated against, in

violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq. The Commission accepts this appeal in accordance

with EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented is whether appellant established that he was entitled

to compensatory damages beyond the amount of $1,500.00.

BACKGROUND

On January 26, 1994, appellant filed a formal complaint based on physical

disability (back injury) when on December 16, 1992, his request for

reconsideration for the position of Engineman was reviewed and denied.

Subsequently, the agency dismissed the complaint on procedural grounds

and that decision was appealed to the Commission. In Yeats v. United

States Postal Service, EEOC Appeal No. 01942946 (January 9, 1995),

the Commission reversed the agency's decision and remanded the case

for investigation. At the conclusion of the agency investigation,

appellant requested a hearing before an EEOC Administrative Judge (AJ).

Thereafter, a hearing was held on January 25, 1996. On February 28, 1996,

the AJ issued a Recommended Decision (RD) finding discrimination based on

disability. Specifically, the AJ found that the agency, in its assessment

of appellant's physical condition, failed to show that his perceived

disability presented a reasonable probability of substantial harm.

Additionally, the AJ found that appellant was "entitled to some award for

any compensatory damages that he may have incurred attributable to the

Agency's discriminatory action." Accordingly, the AJ directed the agency

to fully investigate appellant's compensatory damages claim and to award

him the amount that he was entitled to under the law. On April 29, 1996,

the agency issued a final decision, concurring with the AJ's conclusion

that appellant was discriminated against based on disability. The agency

adopted the AJ's recommended relief and stated that it would "fully review

[his] claim for compensatory damages, and process accordingly."

Thereafter, by letter dated December 2, 1996, the agency sent appellant

a questionnaire and asked that he provide information concerning his

request for compensatory damages. The agency received appellant's

response on December 27, 1996. In appellant's response he stated, among

other things, "how do you determine a dollar amount on stress or of what

value is discrimination?" On February 6, 1997, the agency issued a FAD

finding that appellant was entitled to $1,500.00 in compensatory damages.

Specifically, the agency concluded that appellant, in his responses

to the agency's questionnaire and other supporting documents, had: (1)

failed to supply medical bills or statements to substantiate his claim;

(2) failed to produce documentation to show out-of-pocket expenses; and

(3) failed to show a causal connection between the discriminatory act and

his physical condition. Nevertheless, the agency concluded that appellant

was entitled to $1,500.00 because there was a finding of discrimination.

ANALYSIS AND FINDINGS

Section 102 (a) of the Civil Rights Act of 1991 (1991 CRA) 105 Stat. 1071,

Pub. L. No. 106-166, codified at 42 U.S.C. �1981a, authorizes an award

of compensatory damages as part of make-whole relief for intentional

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended. Section 1981a(b)(2) indicates that compensatory

damages do not include back pay, interest on back pay, or any other

type of equitable relief authorized by Title VII. Section 1981a(b)(3)

limits the total amount of compensatory damages that may be awarded

each complaining party for future pecuniary losses, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life,

and other nonpecuniary losses, according to the number of individuals

employed by the respondent. The limit for a respondent who has more

than 500 employees is $300,000. 42 U.S.C. �1981a(b)(3)(D).

The Commission has held that compensatory damages are recoverable in the

administrative process. Jackson v. United States Postal Service, EEOC

Appeal No. 01923388 (November 12, 1992), request for reconsideration

denied, EEOC Request No. 05930306 (February 1, 1993).<1> Thus, if a

complainant has alleged that he is entitled to compensatory damages and

the agency or the Commission enters a finding of discrimination, the

complainant must be given an opportunity to submit evidence establishing

his claim. 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. 01934156 (July 22, 1994), request for

reconsideration denied, EEOC Request No. 05940927 (December 11, 1995);

Compensatory Damages and Punitive Damages Available Under Section 102

of the Civil Rights Act of 1991, EEOC Notice No. N915.002 at 11-12, 14

(July 14, 1992).

"[C]ompensatory damage awards must be limited to the sums necessary

to compensate [a complainant] for actual harm, even if the harm is

intangible." Id. at 13 (citing Carter v. Duncan - Higgins, Ltd., 727

F.2d 1225 (D.C. Cir. 1984)). Thus, a compensatory damages award should

reimburse a complainant for proven pecuniary losses, future pecuniary

losses, and nonpecuniary losses.

Past Pecuniary Damages

A complainant may recover past out-of-pocket expenses incurred as a

result of the intentional discrimination. EEOC Notice No. N915.002 at 8.

Appellant asserts on appeal that the evidence of record supports "a claim

for compensatory damages in an amount greatly in excess of $1,500.00," and

that he has not yet received all of the back pay that he is entitled to.

As previously stated, compensatory damages do not include back pay and

other types of equitable relief. Furthermore, in the record before

the Commission, appellant has failed to provide any evidence concerning

medical bills and failed to present evidence detailing or substantiating

any out-of-pocket expenses. In a letter supplied by appellant's counsel,

dated August 24, 1996 (Letter), appellant stated, among other things,

that: a business partner failed to pay him; his home was burglarized;

and his wife had to undergo a hysterectomy. However, appellant

failed to show how these events were related to the discrimination.

Accordingly, we find that appellant failed to show that he was entitled

to reimbursement for any medical expenses or other out-of-pocket expenses

directly attributable to the discrimination.

Future Pecuniary Damages

We further find that appellant failed to show that he was entitled

to an award of future pecuniary damages. There is no evidence in the

record concerning the possibility of future visits to a medical provider

or any other possibility of future pecuniary damages.

Nonpecuniary Damages

An award of compensatory damages for nonpecuniary losses, including

emotional harm, should reflect the extent to which the respondent directly

or proximately caused the harm, and the extent to which other factors

also caused the harm. The Commission has held that evidence from a

health care provider is not a mandatory prerequisite for recovery

of compensatory damages. Carpenter v. Department of Agriculture,

EEOC Appeal No. 01945652 (July 17, 1995). Courts also have held that

"expert testimony ordinarily is not required to ground money damages

for mental anguish or emotional distress." Sanchez v. Puerto Rico Oil

Co., 37 F.3d 712, 724 (1st Cir. 1994), citing Wulf v. City of Wichita,

883 F.2d 842, 875 (10th Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512

n.12 (7th Cir.), cert. denied, 454 U.S. 897 (1981). A complainant's own

testimony, along with the circumstances of a particular case, can suffice

to sustain his or her burden in this regard. See U.S. v. Balistrieri,

981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993)

(housing discrimination). As the court noted in Balistrieri, "[t]he

more inherently degrading or humiliating the defendant's action is, the

more reasonable it is to infer that a person would suffer humiliation or

distress from that action; consequently, somewhat more conclusory evidence

of emotional distress will be acceptable to support an award for emotional

damages." Nonetheless, the absence of supporting evidence may affect the

amount of damages deemed appropriate in specific cases. Lawrence v. United

States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996).

The AJ found that the evidence of record established that appellant

was entitled to some award for any compensatory damages that he may

have incurred attributable to the discrimination. The AJ based this

finding on appellant's testimony that as a result of not being awarded

the Engineman position, he was "devastated" and had to change his plans

to move. The agency adopted, and is therefore bound by, the AJ's RD,

see Miller v. United States Postal Service, EEOC Appeal No. 01956109

(January 23, 1998); Martin v. Department of the Interior, EEOC Appeal

No. 01931768 (August 5, 1993). We must next determine the amount

of compensatory damages to be awarded. In determining the amount of

a compensatory damages award, we are guided by the principle that a

compensatory damages award is limited to the sums necessary to compensate

appellant for the actual harm caused by the agency's discriminatory action

and attempt to affix a reasonable dollar value to compensate him for that

portion of his emotional distress that was caused by the discriminations.

EEOC Notice No. N915.002 at 13.

There are no definitive rules governing the amount of nonpecuniary damages

to be awarded. However, nonpecuniary damages must be limited to the sums

necessary to compensate the injured party for actual harm, even where

the harm is intangible, see Carter v. Duncan - Higgins, Ltd., 727 F.2d

1225 (D.C. Cir. 1984), and should take into account the severity of the

harm and the length of time that the injured party has suffered the harm.

Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17,

1995); EEOC Notice No. N915.002 at 14. The Commission notes that for a

proper award of nonpecuniary damages, the amount of the award should not

be "monstrously excessive" standing alone, should not be the product of

passion or prejudice, and should be consistent with the amount awarded

in similar cases, see Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th

Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571,

574 (N.D. Ill. 1993).

In several recent decisions the Commission has awarded nonpecuniary

damages for emotional distress or mental anguish. In White v. Department

of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997), the

Commission ordered an award of $5,000.00 in nonpecuniary damages where the

complainant's testimony and his psychologist's report indicated that the

harassment the complainant endured, which took both sexual and nonsexual

forms, led appellant to suffer from anxiety, depression, emotional

fatigue, occasional nightmares, and insomnia. In Benson v. Department

of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996), the Commission

affirmed the agency's award of $5,000.00 in nonpecuniary damages where the

complainant, his relatives, and his colleagues offered testimony regarding

the embarrassment and humiliation that the complainant suffered at work

as a result of the denial of promotional opportunities, a suspension,

and other adverse actions. In Miller v. United States Postal Service,

EEOC Appeal No. 01956109 (January 23, 1998), the Commission ordered

an award of $7,500.00 in nonpecuniary damages where the complainant

produced scant evidence to support his claim and the agency, despite a

request by the Commission, failed to provide a copy of the documentary

evidence that complainant had submitted.

Having carefully considered the facts of this case, the Commission

finds that the agency's arrived at a fair determination when it awarded

appellant nonpecuniary damages in the amount of $1,500.00. In reaching

this amount, the Commission has considered a number of factors, including:

the nature and severity of the discrimination, and the nature and

severity of appellant's mental anguish and related symptoms. We also

considered that some of appellant's emotional distress during the relevant

time-frame was attributable to factors not related to the discrimination,

such as the aforementioned problems with his business partner, the

burglarization of his home and the emotional stress associated with

his wife's hysterectomy surgery. We also note that appellant failed to

present sufficient evidence concerning his mental anguish to assist the

Commission in arriving at a reasonable amount of damages. The record

contains no psychiatric evaluations or evidence that appellant received

any medications to treat his mental and emotional state. Based on all

these considerations, we find that $1,500.00 is a proper award for any

devastation or mental anguish which appellant has suffered.

CONCLUSION

Based on a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the agency's final decision that appellant failed to establish

that he was entitled to compensatory damages beyond the $1,500.00 agency

award.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS 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

WITHIN TWENTY (20) CALENDAR DAYS 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.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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 THIRTY

(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. 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 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:

March 11, 1999

______________ ____________________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1In Jackson, the Commission held that Congress afforded it the authority

to award such damages in the administrative process. It based this

assessment, inter alia, on a review of the statutory provisions of the

Civil Rights Act of 1991 in relation to one another and on principles

of statutory interpretation which require statutes to be interpreted

as a whole. In particular, the Commission discussed the meaning of the

statute's definition of the term "compelling party" and the significance

of the reference to the word "action" in Section 102(a). In addition

to the specific reasons set forth in Jackson for this holding, Section

2000e-16(b)(Section 717) of the Civil Rights Act of 1964 (42 U.S.C. �2000e

et seq.)(CRA) conveyed to the Commission the broad authority in the

administrative process to enforce the nondiscrimination provisions of

subsection (a) through "appropriate remedies." Similarly, in Section

3 of the Civil Rights Act of 1991 (CRA of 1991), Congress refers to

its first stated purpose as being "to provide appropriate remedies for

intentional discrimination and unlawful harassment in the workplace;",

thereby reaffirming that authority. Consequently, it is our view that in

1991, Congress clearly intended to expand the scope of the "appropriate

remedies" available in the administrative process to federal employees who

are victims of discrimination. Moreover, in Section 717(c) of the CRA,

the term "final action" is used to refer to administrative decisions by

agencies or the Commission, as distinguished from the term "civil action,"

used to describe the rights of employees after such final action is taken.

Therefore, the Commission reaffirms the holding therein. See Turner

v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518

(April 27, 1998).