01962897
10-20-1998
Richard G. Mares, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Richard G. Mares v. Department of the Air Force
01962897
October 20, 1998
Richard G. Mares, )
Appellant, )
)
v. ) Appeal No. 01962897
) Agency No. AR000950681
F. Whitten Peters, ) Hearing No. 360-95-8115X
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On March 1, 1996, Richard G. Mares (appellant) timely initiated an appeal
to the Equal Employment Opportunity Commission (EEOC or Commission),
from the final decision of the Secretary, Department of the Air Force
(agency), issued on February 13, 1997.<1> Appellant alleged that the
agency violated Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. The Commission accepts this appeal in accordance
with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether appellant is entitled to an award of
compensatory damages.
CONTENTIONS ON APPEAL
Neither party has raised any contentions on appeal.
BACKGROUND
On August 25, 1994, appellant filed a formal complaint, alleging
discrimination based on race (Mexican-American), sex (male), and
reprisal (prior EEO activity) when the Injury Compensation Program
Manager (the Responsible Official, the RO) assigned to the Lackland Air
Force Base Civilian Personnel Office, made prejudicial and derogatory
statements against him in an attempt to influence an Office of Workers'
Compensation Program (OWCP) Hearing Representative to judge unfavorably
in his request for workers' compensation benefits.<2> Appellant learned
of the letter controverting his claim on June 13, 1994. The case was
subsequently investigated and referred to an EEOC Administrative Judge
(AJ) for a hearing.
The AJ issued a recommended decision, finding discrimination on the basis
of reprisal but not on the basis of race or sex. The AJ recommended
an award of compensatory damages. She noted that appellant's treating
psychiatrist provided a letter dated June 19, 1995, indicating that the
letter caused appellant extreme stress "which made it necessary for
him to increase the frequency of psychiatric visits and increase the
frequency of medications he is recently taking for stress, depression
and anxiety." Regarding appellant's claim for past pecuniary damages,
the AJ found that he was entitled to compensation for increased visits
to his psychiatrist occurring after July 1994. She noted that due to
a pre-existing condition, appellant had been seeing the doctor once a
month prior to the letter and that appellant was therefore entitled to
reimbursement for those expenses incurred in visiting the psychiatrist
more than once a month. The AJ also found that appellant should
be reimbursed for those expenses which he could prove he incurred
in taking more medication. Because appellant put no evidence in the
record regarding his prognosis, the AJ instructed him to present written
evidence from his psychiatrist concerning his prognosis if he sought
future pecuniary damages. Regarding non-pecuniary damages, the AJ found
sufficient evidence to support appellant's allegation that the agency's
retaliatory action exacerbated his depression.
On November 16, 1995, the agency issued a final decision finding reprisal
and noting that the record was inadequate for determining what amount of
compensatory damages, if any, appellant might be due. Appellant submitted
further evidence regarding compensatory damages. This evidence consisted
of a January 12, 1996 letter from his treating psychiatrist. In this
letter, the psychiatrist stated that appellant was seen in his office on
June 24, 1994 "for exacerbation of severe stress that was triggered by
derogation (sic) evaluations done by supervisors at Lackland Air Force
Base and Fort Sam Houston Army Base." The psychiatrist went on to state
that appellant required increased medications to deal with the depression
and increased paranoia with roots in racial discrimination and reprisal
for reporting theft, absence from the job, and chemical abuse on the job
by other workers. The doctor found that appellant's condition continued
to deteriorate with evolution into Post Traumatic Stress Disorder and
profound depression associated with paranoid feelings about reprisal due
to prior complaint activity. The psychiatrist stated that following a
June 7, 1994 hearing, appellant had confidential treatment information
which was dispersed among supervisors and his quarterly evaluations of
"Fully Successful" were downgraded to "Incompetent Employee Who Abused
the System to Cover Up Incompetent Skills."
On February 16, 1996, the 37th Civil Engineer Squadron Commander (the
Commander) issued his determination regarding compensatory damages.
Paragraph six of that letter indicated that if appellant wanted to
dispute the determination, he should consult the November 1995 decision.
The November 1995 decision provided that if appellant disagreed with
the Commander's determination, he should request a final decision on
compensatory damages through the Commander. On March 21, 1996, appellant
made a request to the Commander for a final agency decision. This request
was made subsequent to appellant's appeal to the Commission. The agency
issued a final decision on the compensatory damages issue on February 13,
1997, and found that appellant was not entitled to any damages.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.110 requires the agency to issue a final
decision within 60 days of receiving the findings and conclusions of
the AJ. In addition, EEOC Regulation 29 C.F.R. � 1614.109(g) provides
in part: "If an agency does not, within 60 days of receipt, reject or
modify the findings and conclusions of the administrative judge, then
the findings and conclusions of the administrative judge and the relief
ordered shall become the final decision of the agency and the agency
shall notify the complainant of the final decision in accordance with �
1614.110." Here, the agency's final decision on the issue of compensatory
damages was issued more than 60 calendar days after its receipt of the
AJ's RD and more than a year after its receipt of the second letter from
appellant's psychiatrist, which contained the additional information
that the AJ ordered appellant to provide. Accordingly, the agency is
bound by the AJ's RD, and its decision on the compensatory damages is
without legal effect. See Martin v. Department of the Interior, EEOC
Appeal No. 01931768 (August 5, 1993).
Section 102(a) of the Civil Rights Act of 1991 (1991 CRA), 105 Stat. 1071,
Pub. L. No. 102-166, 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) 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. U.S. Postal Service, EEOC Appeal
No. 01923388 (November 12, 1992), request for reconsideration denied,
EEOC Request No. 05930306 (February 1, 1993). 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. N 915.002 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. N 915.002
at 8. The AJ recommended an award of past pecuniary damages for
appellant's increased visits to the psychiatrist after July 1994.
The evidence submitted with the psychiatrist's January 12, 1996 letter
indicates that appellant visited the psychiatrist more than once in the
following months: August 1995, September 1995, and October 1995.<3>
These additional visits cost $60.00 each, for a total of $180.00.
We note that appellant presented no evidence of any expenses incurred
in taking additional medication. We therefore find that appellant is
entitled to an award of $180.00 for past pecuniary damages.
Future Pecuniary Damages
The psychiatrist's January 12, 1996 letter indicates that appellant will
require long-term psychiatric care, estimated to be three to five years.
He further indicated that daily medication, weekly visits to the clinic,
and resocialization were estimated to result in an annual expenses of
$6,000.00 for treatment and $600.00 for medication.
As noted by the AJ in her RD, we find that appellant is entitled to
reimbursement for those expenses incurred in visiting the psychiatrist
more than once a month and for any additional medication that he is
required to take because of the June 1994 letter. Accordingly, appellant
is responsible for the payment of one psychiatric visit per month, and
the agency is responsible for the remaining visits for a period of three
years. Appellant must pay for twelve (12) visits per year at a cost of
$60.00 per visit, for a total of $720.00. The agency is responsible
for the payment of $5,280.00 per year ($6,000.00 - $720.00), for a
total of $15,840.00 over a three-year period. As there is no evidence
to rebut that appellant's medication will cost $600.00 per year and no
indication of how much his medication cost prior to the June 1994 letter,
we find that appellant is entitled to have his medication paid for over
a three-year period, for a total of $1,800.00. Appellant is therefore
entitled to total future pecuniary damages in the amount of $17,640.00
($15,840.00 + $1,800.00).
Nonpecuniary Damages
The AJ noted that appellant described difficulties since 1992, when
he began feeling threatened as a result of having been an informant and
having been reprised against. Appellant further testified that the stress
has affected his personal life in that he is afraid to go out of his home
to socialize, he is high strung, nervous, and scared. This nervousness
affected appellant's relationship with his son; specifically, appellant
felt that he was not as pleasing or loving towards his son as he would
like to have been. Appellant also expressed feeling more depressed as
a result of learning about the retaliatory letters in July 1994. The AJ
found that appellant was entitled to some award for the increased mental
anguish and pain and suffering that appellant described as attributable
to the agency's retaliatory action.
We note that the psychiatrist's letters support the AJ's finding.
Specifically, the June 19, 1995 letter states that the statements made
against appellant to OWCP placed "extreme stress" on appellant. In his
January 12, 1996 letter, the psychiatrist stated that these evaluations
caused "exacerbation of severe stress."
As the agency offered no evidence to rebut either appellant's testimony
or the psychiatrist's letters, we find that the evidence establishes
that appellant suffered emotional harm as a result of the derogatory
statements in the letter to OWCP. Accordingly, we find that appellant
is entitled to an award of nonpecuniary damages.
Having determined that appellant proved that he suffered emotional
distress causally connected to agency action, we must next determine
the amount of compensatory damages to be awarded for that harm.
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 agency's discrimination. EEOC Notice No. N 915.002
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. N 915.002 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).
Where a complaining party has a pre-existing emotional condition,
as appellant does here, and that condition deteriorates as a result
of discriminatory conduct, the additional harm may be attributed to
the respondent employer, EEOC Notice No. N 915.002 at 11, following
the theory that a "tortfeasor takes its victims as it finds them."
Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1294 (7th
Cir. 1987). Notwithstanding this rule, however, it is also true that
where an individual "is incapacitated or disabled prior to an accident,
the defendant is liable only for the additional harm or aggravation that
he caused." Maurer v. United States, 668 F.2d 98, 100 (2d Cir. 1981)
(quoted in Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510
(November 13, 1995)).
We note that there have been several recent Commission decisions
which have awarded nonpecuniary damages for emotional distress.
In Mullins v. U.S. Postal Service, EEOC Appeal No. 01954362 (May 22,
1997), the Commission ordered an award of $10,000.00 in nonpecuniary
compensatory damages where the evidence established that the complainant's
depression--which included features of pessimism, helplessness, loss
of concentration, poor memory, anxiety, tension, difficulty with trust,
paranoia, feelings of alienation, low self-esteem, isolative withdrawn
behavior, loss of initiative, resentment, and hostility--was directly
related to the emotional damage the complainant suffered in her work
environment as a result of sexual harassment and reprisal. In Lawrence
v. U.S. Postal Service, EEOC Appeal No. 01952288 (April 18, 1996), the
Commission ordered an award of $3,000.00 in nonpecuniary compensatory
damages where the complainant established that she suffered emotional
distress as the result of sexual harassment and the agency's failure to
respond promptly to her allegations.
In Rountree v. Department of Agriculture, EEOC Appeal No. 01941906 (July
7, 1995), affirmed, EEOC Request No. 05950919 (February 15, 1996), the
Commission ordered an award of $8,000.00 in nonpecuniary damages where the
complainant's statement and a psychologist's report indicated that some of
the complainant's emotional distress, including feelings of inadequacy,
failure, and depression, were the result of a discriminatory performance
appraisal and the denial of bonus pay based on that appraisal. 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.
Having carefully considered the facts of this case, the Commission
finds that appellant is entitled to nonpecuniary damages in the amount
of $7,000.00. In reaching this amount, the Commission has considered a
number of factors. For example, we considered the nature and severity of
the discrimination, as well as the nature and severity of appellant's
emotional distress and related symptoms. We also considered the
extent to which appellant's pre-existing condition contributed to his
emotional distress. The evidence establishes that appellant's anxiety
was caused by other events, not just the June 1994 letter. Accordingly,
we find that $7,000.00 is a proper award for that portion of appellant's
emotional distress caused by the June 1994 letter.
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
REVERSE the agency's final decision.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to appellant past pecuniary compensatory
damages in the amount of $180.00.
(2) Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to appellant future pecuniary compensatory
damages in the amount of $17,640.00.
(3) Within thirty (30) days of the date on which this decision becomes
final, the agency shall tender to appellant non-pecuniary compensatory
damages in the amount of $7,000.00.
(4) The agency is further directed to submit a report of compliance, as
provided in the statement entitled, "Implementation of the Commission's
Decision." The report shall include evidence that the corrective action
has been taken.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he 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.
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 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 (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:
Oct 20, 1998
___________________ ________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant filed his appeal prior to the agency's issuance of a final
decision because the agency failed to issue a final decision within 60
days of receiving the findings and conclusions of the Administrative
Judge, as required by our Regulations. 29 C.F.R. � 1614.110.
2The RO gathered statements from former supervisors of appellant
controverting appellant's claim for OWCP benefits. The RO also attached
a cover letter to these statements which stated in pertinent part that
agency officials believed appellant had "used and abused the grievance
system, EEO system, IG system, and OSI system to cover up his lack of
knowledge and inability to perform the duties of his position."
3Although the AJ found that appellant had two visits in September 1994,
a review of the billing records indicate that the second billing was in
error and was corrected.