05970991
03-18-1999
Carolyn A. Wilson, Appellant, Agency No. AR000940575 F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Carolyn A. Wilson, )
Appellant, ) Request No. 05970991
) Appeal No. 01955269 v. )
Agency No. AR000940575 )
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
________________________________)
DENIAL OF RECONSIDERATION
INTRODUCTION
On August 18, 1997, Carolyn A. Wilson (hereinafter referred to
as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Wilson v. Dep't of the Air Force, EEOC Appeal No. 01955269 (July
29, 1997). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether appellant's request meets any of the
statutory criteria for reconsideration.
BACKGROUND
The following is a summary of the relevant facts and procedural history
of this case.
Appellant filed an EEO complaint alleging sex (female) and race
(Caucasian) discrimination when she was harassed and sexually harassed
from August 1992 through November 1992. Appellant alleged that she
was subjected to repeated harassing comments, jokes, touching, and
other conduct by a co-worker (CW) and her first-level supervisor (S1).
Appellant further alleged that the working conditions caused her to
resign, effective November 20, 1992. Appellant's complaint included a
claim for compensatory damages.
In its final decision (FAD 1), the agency found that appellant was
discriminated against when she was harassed and sexually harassed in
the workplace by CW,<1> and when she was constructively discharged
from her position. The agency also addressed appellant's allegations
that her complaint was improperly processed. As a remedy for the
discrimination, the agency awarded equitable relief, including back
pay and benefits; attorney's fees and costs; and, payment of proven
compensatory damages. Appellant did not appeal from FAD 1.
Because the evidence was insufficient to allow a determination on
appellant's compensatory damages claim, the agency requested that
appellant submit additional evidence of the nature and amount of damages
claimed, as well evidence showing a nexus between the claimed damages
and the discrimination. Thereafter, the agency issued a final decision
(FAD 2) addressing appellant's compensatory damages claim and awarding
her a total of $50,745.01. Appellant appealed from FAD 2.
On appeal, the previous decision modified FAD 2 and awarded a total
of $53,745.01 in compensatory damages. The previous decision's
determinations regarding appellant's claims are summarized below:
Direct Pecuniary Damages
With respect to appellant's medical expenses, the previous decision
disagreed with the agency's determination that appellant had demonstrated
the necessary causal connection between the agency's discrimination and
the medical treatment which she received between December 10, 1993 and
February 22, 1994. The previous decision noted that appellant underwent
medical treatment from December 1992 until April 1993 and that there was
an overall improvement in her medical condition during that time. The
previous decision found no record of any further medical treatment until
appellant's visit with a second physician (P2) in December 1993.<2>
According to the previous decision, P2's medical report indicated that
appellant had discontinued her medication in July 1993 because of her
"'stable and improved emotional status,'" which continued until she
received a copy of the agency's investigative report, and that appellant
had not received any medical treatment since she left Okinawa in July
1993. A statement from appellant's husband similarly indicated that
appellant's condition significantly improved after she left Okinawa, but
began to decline again after her receipt of the agency's investigative
report. Nonetheless, the previous decision noted that the agency already
had agreed to pay $294.28 for medical expenses incurred during this
period, and allowed the award. The previous decision further found
that appellant had failed to establish a causal connection between
the unlawful discrimination and her claim for future medical expenses,
and denied the request for that reason.
With respect to administrative expenses, the previous decision found
that the agency properly denied those of appellant's claimed expenses
not supported by documentation and properly assessed the amount to be
awarded for her established expenses. The previous decision upheld the
agency's award of $450.73.
With respect to lost future earnings, the previous decision found that
the claim was more accurately characterized as a claim for front pay and,
as such, was a claim for equitable relief under 706(g) of Title VII and
not within the penumbra of a compensatory damages claim.<3>
Pecuniary Losses Due to Relocation
The previous decision found that appellant failed to establish the
requisite nexus between the agency's discrimination and appellant's
decision to relocate to the United States. In this regard, the previous
decision found that appellant remained on Okinawa from November 1992
until July 1993; CW, the co-worker who harassed her, left Okinawa in
December 1992; and, appellant was aware of CW's departure. The previous
decision found significant the fact that medical documentation from
this period indicated continuing improvement in appellant's condition
and failed to show that she ever informed her health care providers of
her alleged "overwhelming" fears during the time that she remained on
Okinawa. Consequently, the previous decision found that appellant was not
entitled to compensatory damages for losses resulting from her relocation.
Nonpecuniary Damages
The previous decision found that appellant established an entitlement
to nonpecuniary damages. The evidence showed that appellant was
depressed and had significant difficulty functioning at home after
the harassment began. The evidence also supported a causal connection
between the discrimination and the deterioration in appellant's health,
family life, and relationships with family members.<4> The previous
decision noted the agency's reliance on the Personal Injury Valuation
Handbooks (PIVH) and the PIVH jury verdict research evaluation guide in
deciding the amount of appellant's award. The previous decision disagreed
with the agency's decision to award appellant $50,000 in nonpecuniary
damages rather than the $53,000 indicated in the PIVH. Specifically, the
previous decision referred to the fact that the agency's discrimination
had caused appellant significant emotional distress and related health
problems, including "decreased libido." Based on the nature, severity,
and duration of the discrimination, and other factors considered, the
previous decision awarded appellant $53,000 in compensatory damages.
Appellant's total award was $53,745.01 ($745.01 in pecuniary damages
and $53,000 in nonpecuniary damages).
In her reconsideration request, appellant contends that her compensatory
damages award should be increased based on a July 1997 Social Security
Administration (SSA) decision regarding her claim for disability benefits.
Appellant also contends that she should receive additional compensatory
damages for "the pain and suffering" caused by the complaint process.
In support of her request, appellant submitted a copy of the SSA decision
and several other medical documents.
In response, the agency argues that appellant's request fails to meet
the criteria for reconsideration and should be denied for that reason.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
Appellant requests an increase in her compensatory damages award based
on the July 1997 SSA decision and her pain and suffering caused by
litigating her EEO complaint.
The Commission finds that the 1997 SSA decision does not warrant a change
in the amount of appellant's compensatory damages award. Although the
decision states that "medical evidence confirms the existence of a
condition in 1992 that could have caused limitations as the claimant has
described...," this decision and the other medical documents submitted
by appellant<5> are insufficient to establish a causal connection between
her current condition and the agency's discrimination. As already noted,
appellant's condition had improved to the point that she was able to
discontinue medical treatment and declined only after her receipt of the
agency's investigative report. The Commission previously has held that
compensatory damages are not available to a complainant for emotional
distress and depression resulting from the stress of participating in
the EEO process. See Rountree v. Dep't of Agriculture, EEOC Request
No. 05950919 (February 15, 1996).
Having reviewed appellant's request and the record as a whole, we
find that the request fails to meet the criteria for reconsideration.
Further, our own review of the previous decision failed to show any
other reason for reconsidering that decision. Consequently, we deny
appellant's reconsideration request.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant's request for reconsideration fails to meet the
criteria of 29 C.F.R. �1614.407(c), and the request hereby is DENIED.
The decision in EEOC Appeal No. 01955269 hereby is AFFIRMED.
ORDER
The agency is ORDERED to pay appellant $53,745.01 in compensatory damages,
if it has not already done so. A copy of the agency's letter to appellant
forwarding payment of the determined compensatory damages must be sent
to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF APPELLANT'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
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. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e 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 18, 1999
Date Frances M. Hart
Executive Officer
1The harassment consisted primarily of verbal conduct, including sexual
jokes and remarks, and derogatory racial comments of a sexual nature.
2In her reconsideration request, appellant submitted medical treatment
notes showing that she had a final visit with P1 in June 1993.
3As previously noted, appellant never appealed from FAD 1 in which the
agency found discrimination and ordered equitable relief.
4Although the evidence suggested that a prior sexual trauma also
contributed to appellant's depression, the previous decision found that
this was a factor to be considered in determining the amount of the
damages award.
5The July 18, 1995 letter from the psychologist had been submitted by
appellant in conjunction with her appeal.