Sandra S. Johson, Complainant,v.Michael Griffin, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionApr 5, 2007
0120053146 (E.E.O.C. Apr. 5, 2007)

0120053146

04-05-2007

Sandra S. Johson, Complainant, v. Michael Griffin, Administrator, National Aeronautics and Space Administration, Agency.


Sandra S. Johnson v. National Aeronautics and Space Administration

0120053146

4/5/07

.

Sandra S. Johson,

Complainant,

v.

Michael Griffin,

Administrator,

National Aeronautics and Space Administration,

Agency.

Appeal No. 0120053146<1>

Agency No. NCN-01-MSFC-A015

DECISION

On March 24, 2005, Sandra S. Johnson (complainant) filed an appeal from

the February 17, 2005, Final Agency Decision (FAD) of the National

Aeronautics and Space Administration (agency) denying an award of

compensatory damages. This FAD followed the agency's determination on

December 22, 2003, that it discriminated against complainant on the bases

of sex and age (DOB 1/18/44) when she was not selected for the position of

Contract Representative, GS-13, in September 2000, 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, as amended,

29 U.S.C. � 621 et seq.<2> The appeal is timely filed (see 29 C.F.R. �

1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.<3>

Pursuant to the agency's order following its finding of discrimination,

complainant submitted her claim for compensatory damages on January 23,

February 10, and March 18, 2004. By letter dated March 29, 2004, the

agency requested further information, explaining to complainant that it

was her burden and obligation to submit objective evidence in support of

her claim and to show that the harm she experienced was causally related

to the agency's discriminatory act, i.e., her non-selection in September

2000. Complainant responded on May 5, 2004. In its FAD, the agency

determined that complainant was not entitled to compensatory damages,

since her documentation lacked any objective showing or demonstration

that the medical or other costs involved events that were caused by the

agency's discriminatory act.

Complainant's Submission

Complainant's submissions to the agency in support of her claim consisted

of the final pay stub for the years 2001, 2002, and 2003; identification

of her two attorneys, one employed during mediation of her claim, and a

statement that she paid them $1,500; cancelled checks from September 2000;

health insurance reports for 2002-2003, without diagnoses; medical reports

from 1999, 2003, and 2004; a list of drugs purchased from November 2001,

without diagnoses; and answers to the agency's questions raised in the

letter of March 29, 2004. According to the agency, complainant sought

compensatory damages of $1,640,038.

Pecuniary Damages. From the documents submitted by complainant, the

agency determined that she claimed pecuniary damages of $1,525 for

medical care, $1,364 for medications, $13,535 for LWOP (leave without

pay), and duplication costs of $151. She stated that she had numerous

illnesses, including asthma, viruses, stomach disorders, hypothyroidism,

and arthritis, all of which pre-date September 2000. In addition,

a letter from her doctor stated she had autoimmune diseases, including

Addison's Disease. In answer to the agency's question regarding stress,

she suggested that the agency call her doctor. As to her claim to

recoup her LWOP, she stated that she used it because of �job pressures.�

Non-pecuniary Damages. Complainant sought $300,000, stating that the

agency's discrimination �affected all aspects of my life� for which she

suffered �intangible injuries.� She stated that her participation in

the EEO process caused sleeping problems, she gained weight, and she

found that it was �very stressful.�

Future Pecuniary Damages. Complainant stated that she was entitled

to $1,000,000, in order to take care of �my health and raising my

grandson.� In addition, she claimed $300,000 for loss of respect from

her peers and the loss of enjoyment of family and friends. Further,

she calculated that, to make up for what she believed to be a lack of

future performance awards or promotions, she was owed $23,462.

Attorney's Fees. In an email to the agency, complainant stated she

employed two attorneys, one during mediation of her claim, and provided

only their name and address; she claimed she paid them $1,500, but

could not say if that amount was reasonable attorney's fees.

Legal Standards

The Civil Rights Act of 1991 (CRA) authorizes awards of compensatory

damages as relief for intentional discrimination in violation of

Title VII.<4> 42 U.S.C. � 1981a. The Supreme Court has affirmed

the Commission's holding that compensatory damages are recoverable

in the administrative process. West v. Gibson, 527 U.S. 212 (1999);

see Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992),

req. to reopen den., EEOC Request No. 05930306 (February 1, 1993).

The CRA allows compensatory damages for proven losses and suffering due

to the discriminatory acts or conduct of the agency and include past

pecuniary losses, future pecuniary losses, and non-pecuniary losses that

are directly or proximately caused by the agency's discriminatory conduct

or action. See Compensatory and Punitive Damages Available Under Section

102 of the Civil Rights Act of 1991, EEOC Notice No. N915.002 (July 14,

1992) (Notice). Recovery from employers with more than 500 employees,

such as the agency, is limited to $300,000 for future pecuniary and

non-pecuniary damages. Id.

In a claim for compensatory damages, it is a complainant's obligation to

demonstrate, through appropriate and probative evidence and documentation,

the harm suffered as a result of the agency's discriminatory action; the

extent, nature, and severity of the harm suffered; and the duration or

expected duration of the harm. Rivera v. Department of the Navy, EEOC

Appeal No. 01934156 (July 22, 1994), req. to recon. den., EEOC Request

No. 05940927 (December 11, 1995); Notice at 11-12, 14; see Carpenter

v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).

Objective evidence in support of a claim for pecuniary damages includes

documentation showing actual, out-of-pocket expenses with an explanation

of the expenditure and, for non-pecuniary claims, statements from

the complainant and others, including family members, co-workers, and

medical professionals, describing the harm and demonstrating that the

discriminatory action caused the harm. Notice at 9; Carle v. Department

of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).

Awards are limited to compensation for the actual harm suffered

as a result of the agency's discriminatory actions. See Carter

v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Notice at 13.

The agency is only responsible for those damages that are clearly shown

to be caused by the agency's discriminatory conduct. Carle v. Department

of the Navy, supra; Fazekas v. USPS, EEOC Appeal No. 01954627 (April

7, 1997); see also Johnson v. Department of Interior, EEOC Appeal

No. 01961812 (June 18, 1998). To recover damages, the complainant

must prove that the agency's discriminatory actions were the cause

of the pecuniary or non-pecuniary loss. Notice at 8. An award of

compensatory damages for non-pecuniary losses, including emotional harm,

should reflect the extent to which the agency's discriminatory action

directly or proximately caused the harm and the extent to which other

factors also caused the harm. Notice at 11-12 (�To recover damages,

the complaining party must prove that the employer's discriminatory act

or conduct was the cause of his loss. The critical question is whether

the complaining party incurred the pecuniary losses as a result of the

employer's discriminatory action or conduct.�).

The extent of an agency's liability may be tempered by other factors

that affected a complainant, in particular herein, the complainant's

medical and emotional condition at the time of the agency's action.

Where the harm caused by its action may be an aggravation of pre-existing

conditions, the agency is generally liable for additional harm.

Guidance at 11. In considering such cases, the Commission relies on

the principle that "a tortfeasor takes its victims as it finds them."

Wallis v. USPS, EEOC Appeal No. 01950510 (November 13, 1995), (citing,

Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th

Cir. 1987)). However, when a complainant has a pre-existing condition,

the agency is liable only for the additional harm or aggravation, and, if

the complainant's pre-existing condition inevitably would have worsened,

the agency is entitled to a reduction in damages reflecting the extent to

which the condition would have worsened even absent the discrimination.

Notice at 12. Punitive damages are not available against the federal

government. Notice at 4.

The Commission has held that a complainant may not recover non-pecuniary

compensatory damages for pain or stress associated with prosecution

of an EEO complaint. Rountree v. Department of Agriculture, EEOC

Appeal No. 01941906 (July 7, 1995), aff'd, EEOC Request No. 05950919

(February 15, 1996). Therefore, an award of damages must reflect only

the harm experienced as a direct and proximate result of the agency's

discriminatory act and cannot include relief for harm related to the

EEO process. Olsen v. Department of Defense, EEOC Appeal No. 01956675

(July 29, 1998).

Complainant's Entitlement to Compensatory Damages

We find that the agency properly determined that complainant was not

entitled to an award of proven compensatory damages. To establish her

entitlement to compensatory damages, it was complainant's obligation

to demonstrate, through actual and probative evidence, supported by

documentation, that the harm for which she claimed damages (a) was

caused by and a result of the agency's discriminatory action, i.e., her

non-selection in September 2000; (b) the extent, nature, and severity

of the harm she suffered; and (c) the duration or expected duration of

the harm. Rivera v. Department of the Navy, supra. Complainant did

not submit statements, documents, or other proof of actual monetary or

out-of-pocket expenses incurred as a result of the agency's discriminatory

conduct.

Further, we find that the agency fully explained to complainant that it

was her obligation to demonstrate that she was entitled to compensatory

damages. After receipt of her submissions of January 23, February 10, and

March 18, 2004, the agency informed complainant that the information and

evidence she provided was insufficient to support a claim for compensatory

damages and attorney's fees and costs. In its letter of March 29,

2004, the agency provided �information, references, and instructions� to

complainant �as a guide to you for your submission.� The agency went

on to explain the different types of compensatory damages available

and advised her that specific information, supported by documentation,

must be included in her claim. She was informed that average costs

or an average number of doctor visits was not acceptable and did not

establish entitlement to compensatory damages. The agency explained to

complainant that �you have the burden of coming forward with sufficient

proof of damages...and how those losses relate to the discriminatory

conduct.� Letter, p. 3. In addition, the agency presented a list of

specific questions to guide complainant in development of her claim.

Finally, we find that complainant has not shown that she is entitled

to damages for health-related reasons. She did not show that her

medical conditions, described in her statement and medical report,

were not caused by, or a result of, the agency's discriminatory action

in September 2000. In support of this finding, we note that no medical

documentation connected her health conditions, or exacerbation of her

health conditions, to the agency's action in September 2000. Also,

complainant did not show that she is entitled to compensatory damages

for lack of future award and promotions; other than her own speculation,

she did not present probative evidence in support of this claim, nor

has she presented any evidence that the agency's discrimination was

causally related to raising her grandson or the loss of enjoyment of

family and friends. A letter from her daughter describing her mother's

behavior referenced only her exasperation over the EEO process and not

the actual non-selection. For these reasons, we find that complainant

is not entitled to compensatory damages.<5>

CONCLUSION

Accordingly, the agency's decision is AFFIRMED.

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 (S0900)

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. 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. If you

file a request to reconsider and also file a civil action, 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

_____4/5/07_____________

Date

1Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2In a separate complaint consolidated with the non-selection matter,

complainant claimed discrimination with regard to a desk audit.

The agency found that it did not discriminate against complainant on

this issue, and she did not file an appeal from this finding.

3The instant appeal will not address any other provisions of the

agency's December 22, 2003, Order. We will also not address new

issues raised by complainant regarding her recent work experiences;

it is not appropriate to raise new claims for the first time on appeal.

See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449

(April 22, 2004).

4Compensatory damages and attorney's fees are not available for

discrimination based on age during the administrative processing of EEO

complaints.

5With regard to her claim for attorney's fees and costs, we note that

the record does not identify an attorney of record. Further, claims for

attorney's fees and costs must be submitted according to the Commission's

regulations, 29 C.F.R. � 1614.501(e).