01A31967
06-03-2004
Sarah V. Peebles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sarah V. Peebles v. United States Postal Service
01A31967
06-03-04
.
Sarah V. Peebles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31967
Agency No. 4D270114195
Hearing No. 140-96-8276XAFS
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning its award of compensatory damages issued in accordance with
an EEOC Administrative Judge's (AJ) decision dated December 31, 2002.
The instant claim for compensatory damages stems from her original
complaint of unlawful discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �2000e et
seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29.U.S.C. � 791 et seq. This appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
In the underlying complaint, complainant claimed that she was
discriminated against on the bases of her race (Black) and disability
(physical condition due to medication prescribed for psychotic symptoms
and mental condition) when: (1) from February 6, 1995 through March 18,
1995, she was not allowed to work; and (2) from March 20, 1995 through
January 1996, she was only permitted to work four hours per day.
On March 27, 1998, an AJ found that the agency had not discriminated
against complainant as alleged. On appeal of that decision, we found
that the agency had in fact discriminated against complainant on the
basis of her disability. Peebles v. United States Postal Service, EEOC
Appeal No. 01984745 (March 8, 2002). In accordance with our finding,
we remanded complainant's claim to the Hearings Unit for an AJ to issue
a decision on compensatory damages.
In a decision dated December 31, 2002, an AJ awarded complainant
$12,214.38 for compensatory damages. Specifically, the AJ
awarded complainant $4,714.38 for pecuniary damages and $7,500.00
for non-pecuniary damages. The AJ did not award complainant any
future damages. According to the AJ, complainant initially requested
$600,000.00 in compensatory damages. On appeal, complaint requests that
the Commission award her the �maximum� amount of compensatory damages.
The agency requests that we affirm the AJ's compensatory damages award.
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 or the Rehabilitation Act 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 West v. Gibson, 119 S.Ct. 1906 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. For an employer with more than
500 employees, such as the agency, the limit of liability for future
pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. � 1981a(b)(3).
To receive an award of compensatory damages, a complainant must
demonstrate that he or she was 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) (EEOC
Notice No. 915.002), at 11-12, 14. Where as here, the complainant,
has a pre-existing condition that deteriorated as a result of the
agency's discriminatory conduct, the agency is liable to the extent
of the additional harm caused by the discrimination. EEOC Notice
No. 915.002 at 11. Objective evidence of compensatory damages may
include medical bills and statements from the complainant or others
attesting to complainant's emotional suffering. Statements from others,
including family members, friends, health care providers, and other
counselors could address the outward manifestations of emotional
distress, including sleeplessness, anxiety, stress and depression.
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). The absence of supporting evidence
may affect the amount of damages appropriate in specific cases.
Lawrence v. United States Postal Service, supra.
As an initial matter, we note that complainant has submitted other
evidence on appeal such as two bills from hospital stays in 1995 and
1996. These submissions constitute new evidence that was not submitted
to the AJ. As a general rule, no new evidence will be considered on
appeal unless there is an affirmative showing that the evidence was not
reasonably available prior to or during the investigation or hearing
process. See EEOC Management Directive 110, 9-15, November 9, 1999
(MD-110); 29 C.F.R. � 1614.110(b). Complainant has not shown that the
evidence was previously unavailable. Therefore, this evidence will not
be considered in the determination of the compensatory damages award.
In addition, complainant repeatedly asserts that she should receive
compensation for expenses incurred after she retired from the agency on
disability such as reimbursement for loan payments and other personal
expenses. Compensatory damages are only appropriate to compensate
for losses stemming from the discriminatory conduct, in this case,
the agency limiting complainant to four hours of work per day. In her
formal complainant, complainant did not claim that the agency forced her
to retire, or, in other words, that she was constructively discharged.<1>
Therefore, her retirement and expenses incurred as a result of such will
not be considered in determining the compensatory damages award.
Pecuniary Damages: Past Pecuniary Damages
Typically, evidence of past pecuniary damages will include medical bills
and other quantitative evidence. Damages without such documentation
will not normally be awarded. See generally EEOC Notice 915-002.
In review of the evidence properly submitted before the AJ, we conclude
that the AJ properly awarded complainant past pecuniary damages in the
amount of $4,714.38. Complainant submitted medical bills detailing her
psychiatric visits for which the AJ credited her $2,741.60. Complainant
also submitted medical bills with respect to prescription drugs for
$1,664.78 and a December 1, 2002 invoice for an insurance payment for
$308.00. Neither complainant nor the agency contests these specific
figures, thus we affirm the award of $4,714.38.
Complainant has also provided an additional insurance invoice, dated
January 13, 2003, reflecting health insurance fees she owes the agency
because it terminated her and her son's health insurance. We note that
these additional insurance invoices were not available prior to the AJ
issuing her decision, and therefore could not be produced before her
initiation of the instant appeal. See MD-110, 9-15, November 9, 1999;
29 C.F.R. � 1614.110(b). In addition, the record reflects that, in a
letter faxed to the AJ on November 15, 2002, complainant stated, �I am
faxing a . . . copy of the insurance bill I now have to pay because the
[agency] has kept me out of work for over a year, . . . and [it is]
now forcing me to pay [for my] and my son's health insurance coverage
for they have terminated my health insurance.� Based upon the invoices
and complainant's statement, the Commission finds that the complainant
is entitled to health insurance fees for which she has been billed from
the date of the December 1, 2001 invoice to the date she retired from
the agency.
Complainant also submitted invoices, totaling $25,171.36, from
hospitalizations occurring between 1998 and 2001, as evidence of what
she believed to be future pecuniary damages. The AJ found that this
evidence was insufficient to show that complainant is entitled to
future pecuniary damages. We find, however, that these damages should
be identified as past pecuniary damages. Future pecuniary damages are
out-of-pocket expenses that are likely to occur after the conciliation,
settlement, or the conclusion of the EEO proceedings. See generally
EEOC Notice 915-002. Here, the EEO proceeding did not conclude until
after the Commission rendered its decision, finding discrimination,
on March 8, 2002. Therefore, the hospitalizations occurring between
1998 and 2001 are best classified as past pecuniary damages for which
complainant should be reimbursed where she can establish a nexus between
the agency's action and the harm suffered.
In addition to the invoices from hospitalizations, complainant submitted
to the AJ an undated letter from a psychiatrist stating that complainant's
�mood was that of anxiety� and �she was upset because she was not being
given enough hours to work.� Complainant's mother asserted in a statement
that complainant has been continuously hospitalized due to stress and
anxiety, noting that the agency's actions created stress and depression,
which �would land [complainant] in the hospital.� A friend stated that
complainant often called her in the middle of the night to discuss the
agency's treatment of complainant. This friend further maintained that
she took complainant to �the doctor and emergency room plenty of times
because of the problems she experienced.�
The Commission finds that, while a portion of complainant's
hospitalizations was due to the agency's limiting complainant's work
day to four hours per day, the record remains unclear as to whether the
entirety of complainant's hospitalizations in December 1998, September
1999, and January 2001 was due to the discriminatory conduct. When a
complainant has a pre-existing condition, the agency is liable only
for the additional harm or aggravation caused by the discrimination.
Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November
13, 1995) (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981);
Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April
29, 1997). Here, complainant has provided insurance invoices for three
hospital stays and attendant medical care, a letter from a psychiatrist,
and statements from complainant's mother and friend. We find this
evidence too vague to attribute the entirety of complainant's hospital
stays to the discrimination in light of complainant's treatment for
psychotic symptoms and a mental condition, and the many hardships she
experienced during this period, including the deaths of two immediate
family members in 2001. Accordingly, since complainant is entitled to
recover damages only for injury caused by the agency's discriminatory
action, an award of one-half of her medical expenses for hospitalizations
occurring between 1998 and 2001, i.e., $12,585.68, is appropriate.<2>
Non-Pecuniary Damages
While there are no rules governing amounts to be awarded for non-pecuniary
compensatory damages, the Commission has set forth certain principles.
See Sinnot v. Department of Defense, EEOC Appeal No. 01952872 (September
19, 1996). An award must be predicated on the harm experienced as a
result of the agency's actions; the extent, nature and severity of the
harm; and the duration of the harm. Rivera v. Department of the Navy,
supra. An award must take into account the severity of the harm over the
length of time that the injured party suffered. Carpenter v. Department
of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). An award should
not be �monstrously excessive,� the product of passion or prejudice, or
inconsistent with awards in similar cases. See Cygnar v. City of Chicago,
865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations,
823 F. Supp. 571, 574 (N.D. Ill 1993); EEOC Notice 915-002 at 13-14.
Complainant submitted several statements from family, friends, co-workers,
and doctors indicating that the agency caused complainant to suffer severe
emotional stress, turmoil, and mental anguish. For instance, the record
reveals that at least two co-workers and a union representative submitted
statements on complainant's behalf. Complainant's mother submitted a
letter detailing the effects of the discrimination. In addition, one
of complainant's doctors submitted a letter, indicating that complainant
underwent considerable distress due to the agency's actions and that her
pre-existing mental condition considerably worsened as a result of the
agency's conduct. There is also evidence from at least one other doctor
who noted that the agency's failure to allow complainant to fully work
within her needed accommodation caused her emotional distress. Complainant
has asserted that she has experienced a �tremendous amount of stress
and depression caused by not allowing [her] to work and to make money to
survive and to take care of [her] son and [herself],� and that the ordeal
�has been very painful, as well as degrading.� She also explains that
she has borrowed a great deal of money to meet her obligations. Finally,
complainant has shown that she had been hospitalized several times for
mental anguish due, in part, to the agency's discriminatory conduct.
The AJ awarded complainant $7,500.00 in non-pecuniary damages.
The AJ found that complainant's assertions and submissions addressed
harms suffered throughout her employment. The AJ further found that
complainant did not sufficiently identify the extent to which her mental
condition was exacerbated by the discrimination to justify a larger award.
For the reasons stated below, we find $7,500.00 insufficient and adjust
the non-pecuniary damage award to $20,000.00.
Although we take notice that complainant had a pre-existing medical
condition, we find that complainant has sufficiently proved that she
is due a larger award based on our review of similar cases. We also
give credence to the facts that: 1) some of her hospitalizations and
psychiatric visits occurred during the time period of discrimination; 2)
her treating physicians noted that complainant was under considerable
stress due to her situation at work; and 3) she has submitted several
statements attesting to her emotional distress due to her work situation.
This evidence provides a sufficient nexus between the discriminatory
conduct and the emotional distress detailed in the record. A $20,000.00
award for non-pecuniary damages is consistent with other awards that
we have issued in similar situations. For example, the Commission
awarded a complainant $20,000.00 in non-pecuniary damages for an
undetermined length of injury for complainant's depression and emotional
distress, loss of credit standing, and loss of professional standing.
Colwell v. United States Postal Service, EEOC Appeal No. 1985789 (June
13, 2001). In addition, the Commission awarded a complainant $30,000.00
when he was hospitalized once, suffered severe emotional distress for
months and less severe emotional distress for the following three years
after the disability discrimination. Anthony Williams v. Department of
Veterans Affairs, EEOC Appeal No. 01A13275 (March 19, 2003). Furthermore,
the Commission awarded $20,000.00 to a complainant, where the agency's
discriminatory conduct exacerbated his pre-existing depression.
Smith v. Department of Defense, EEOC Appeal No. 1943844 (May 8, 1996).
The Commission awarded a complainant $25,000.00 in non-pecuniary damages
when he testified as to prolonged feelings of frustration, anger, loss of
self esteem, and a sense of betrayal due to disability discrimination.
Hutton v. United States Postal Service, EEOC Appeal No. 01985377 (June
6, 2000). Moreover, the Commission awarded a complainant $35,000.00
for disability discrimination when complainant and his wife testified
that complainant suffered severe stress, sleeplessness, and misery as a
result of the agency failing to reasonably accommodate his disability.
Feris v. Environmental Protection Agency, EEOC Appeal No. 01983167
(September 18, 1998). Finally, the Commission awarded $20,000.00 to
a complainant where he, family, and friends testified to depression
and strained relationships as a result of reprisal discrimination.
Velarde v. United States Postal Service, EEOC Appeal No. 01A22780
(September 30, 2003). Therefore, we modify the AJ's decision and FAD
and award complainant $20,000.00 in non-pecuniary damages.
ORDER
The agency is ordered to take the following remedial actions:
1. Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant $17,300.06 for past pecuniary damages.
2. Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant $20,000 in non-pecuniary compensatory
damages.
3. Within sixty (60) days from the date this decision becomes final,
the agency shall examine complainant's health insurance records and
solicit such additional information from complainant regarding her
health insurance coverage as is necessary to determine the amount of
health insurance fees, to which complainant is entitled from the date of
the December 1, 2001 invoice to the date she retired from the agency.
The agency shall, thereafter, pay that amount of insurance fees to
complainant. The agency shall have an additional thirty (30) calendar
days after it determines the amount of fees to which complainant is
entitled in which to pay complainant.
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 supporting documentation of the
agency's calculation of and other benefits due complainant, including
evidence that the corrective action has been implemented.
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.
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.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
___06-03-04_______________
Date
1The Commission notes that complainant's claim that she was constructively
discharged was not previously raised, and it inappropriate for her to
raise these new claims for the first time as part of the current appeal.
See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449
(April 22, 2004).
2 In Wallis, the Commission held that it will apply the "collateral
source" rule in compensatory damages cases: sources of funds collateral
to the defendant may not be used to offset the financial liability of the
defendant. EEOC Appeal No. 01950510. Health insurance, even where funded
by agency contributions, is deemed a collateral source in that the agency
was not seeking to insure itself against injury to the employee caused
by discrimination. Wallis, EEOC Appeal No. 01950510. Double recovery is
not an issue, because complainant's health insurer may recover from him
the monies it expended on his behalf. See Ward-Jenkins v. Department
of the Interior, EEOC Appeal No. 01961483 (March 4, 1999).