01965628
10-01-1998
Tina V. DeLeon, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Tina V. DeLeon v. Department of Defense
01965628
October 1, 1998
Tina V. DeLeon, )
Appellant, )
)
v. )
) Appeal No. 01965628
William S. Cohen, ) Agency No. 95-DCNW19-020
Secretary, )
Department of Defense, )
(Defense Commissary Agency), )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED as MODIFIED.
ISSUE PRESENTED
The issue on appeal is whether the agency provided make-whole relief
under Title VII after it determined that its reasons for having issued
a Letter of Counseling (Letter) were a pretext for unlawful reprisal?
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as a WG5/03 Store Worker - Material Handler at the agency's Fort Lewis
Commissary, Produce Department, Fort Lewis, Washington. On or around June
15, 1995, appellant received verbal counseling and the above-referenced
Letter from her supervisor. The Letter, documenting their conversation,
counseled appellant for: (1) leaving her shift early; (2) failing to
follow instructions; and (3) failing to keep her produce line stocked.
Believing she was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on August 8, 1995.
After investigating appellant's complaint, the investigator concluded
that management's reasons for issuing the Letter were not credible,
and were motivated by retaliatory animus. In its FAD, the agency
adopted the investigative report's finding that appellant was a victim
of unlawful reprisal when she was issued the Letter on June 15, 1995.
The agency FAD next addressed the issue of damages, and concluded that
appellant was entitled to:
having the Letter rescinded;
correcting the leave of absences taken on the recommendation of
appellant's psychologist;
reasonable attorney's fees, upon receipt of appropriate documentation,
in accordance with 29 C.F.R. �1614.501(e);
an award of $1300.00 in pecuniary compensatory damages, as reimbursement
of documented medical expenses for all visits to appellant's psychologist
occurring after the issuance of the Letter;
a nominal award of $200.00 in nonpecuniary compensatory damages for the
issuance of the Letter in retaliation for her participation in lawful
EEO activities and associated emotional distress.
With respect to (4) above, the agency noted that although appellant
submitted $2500.00 in medical expenses, the agency determined that
$1200.00 of that amount was associated with doctor's visits which occurred
prior to the agency's issuance of the Letter. The agency concluded
that these visits were not proximately related to the discriminatory
issuance of the Letter and therefore not reimbursable as pecuniary
compensatory damages.
With respect to (5) above, the agency noted that appellant's psychologist
stated: "[appellant] seems to be suffering increasingly from interpersonal
and managerial stress in the workplace," and recommended that appellant
take a leave of absence from the workplace. Accordingly the agency
granted appellant leave for the period June 26, 1995, through August 10,
1995, and again from August 11, 1995, through September 16, 1995.<1>
The agency also noted that in arriving upon a nominal nonpecuniary
compensatory damages award of $200.00, it considered that the Letter was
withdrawn in July of 1995, a few weeks after its issuance; appellant's
level of stress decreased while she was on leave during the summer of
1995; and finally, that upon her return in September of 1995, she left the
Fort Lewis Commissary for another position in the McChord Commissary.
Appellant appealed the agency's FAD, and through counsel, requested
$10,318.75 in attorneys's fees, $11,973.88 as reimbursement of wages
lost, $2500.00 in medical expenses, and $600,000.00 (at 12% interest)
compensatory damages.<2> The agency requests that we affirm its FAD.
ANALYSIS AND CONCLUSION
With respect to the items previously identified as (1) through (3) above,
we first find that the agency's proposed resolution with respect to
rescinding the Letter and awarding attorney's fees was proper. To this
end, we note that appellant is entitled to attorney's fees, both for
the processing of her complaint, and subsequently, for this appeal.
Appellant's submission of attorney's fees on appeal should, upon remand
of this case, be submitted to the agency pursuant to our ORDER which
follows this decision.
We also note that with respect to appellant's leave between June 26, 1996,
and September 16, 1996, the agency's order of relief, specifically, its
statement that it would "correct[] the leave of absences taken on the
recommendation of appellant's psychologist" is unclear. We therefore
instruct the agency to ensure that appellant is properly compensated
for her leave of absence between June 26, 1995, and September 16, 1995,
by restoring applicable sick or annual leave taken during this period.
Alternatively, if appellant was on leave without pay during this period,
she shall be awarded back pay, seniority and other employee benefits
for the above-referenced leave period pursuant to our ORDER following
this decision.
With respect to the items previously identified as (4) and (5) above,
we first note that the Commission has held that compensatory damages
are recoverable in the administrative process. See Jackson v. U.S,
Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request
to reopen denied, EEOC Request No. 05930306 (February 1, 1993).<3>
We next note that in reviewing a claim for compensatory damages, the
Commission has stated that "compensatory damages must be limited to the
sums necessary to compensate [a complainant] for actual harm, even if
the harm is intangible." EEOC Notice No. N915.002 at 13 (citing Carter
v. Duncan Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984)). The Commission
also notes that there are no precise formulas for determining the amount
of damages for nonpecuniary losses and should reflect the extent to
which the respondent directly or proximately caused the harm. Id. at
11-12. An award for compensatory damages for nonpecuniary losses should
also reflect the nature and severity of the harm and the duration or
expected duration of the harm. Id. 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 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).
A review of previous Commission decisions on the issue of compensatory
damages reveals that 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. In Bever v. Department of Agriculture, EEOC
Appeal No. 01953949 (October 31, 1996), the Commission ordered an award
of $15,000.00 in nonpecuniary compensatory damages where the evidence
established that the complainant's situational anxiety was directly
linked to a hostile work environment, that the complainant was required
to take medication as a result thereof, and that the complainant's
symptoms included uncontrolled crying, weight loss, and depression.
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. Finally, in Demeuse
v. United States Postal Service, EEOC Appeal No. 01950324 (May 22,
1997), the Commission ordered an award of $1,500.00 in nonpecuniary
damages after the complainant established that he suffered emotional
distress when his post-traumatic distress disorder was exacerbated and
he had suicidal thoughts because his supervisor left out a letter from
appellant requesting accommodations for others to see, he was referred
to as "Rambo," his request for overtime restrictions was not honored
by the agency, and a supervisor "frisked" him for weapons when he was
walking to his work area.
A review of the medical records submitted by appellant indicates that
on the attending physician's statement submitted in conjunction with a
claim for workers compensation by appellant, completed on or around July
10, 1995, appellant's physician diagnosed appellant with "Adjustment
Disorder with mixed emotional features." In response to item 6., "What
are your findings?", appellant's physician stated that appellant had
abdominal pain, sleep and appetite problems, muscle tension and headaches.
We also note that appellant's individual psychotherapy and mental health
counseling continued throughout the summer, and that the agency agreed
to reimburse all charges for psychotherapy which were incurred following
the date the Letter was issued. We further note that the relationship
between appellant, some of her co-workers, and agency management was
acrimonious, and the record documented some of these difficulties.
We finally note that appellant had filed prior EEO complaints against the
agency, and that she experienced stress and other physical manifestations
as a result of her difficulties at the Fort Lewis Commissary.
Having carefully considered the facts of this case in conjunction with
previous awards of compensatory damages by the Commission, we first
find the agency's award of $1,300.00 in pecuniary compensatory damages
was proper. We agree with the agency's conclusion that appellant's
costs associated with her doctor's visits occurring prior to the
issuance of the Letter are not reimbursable because such visits are
not proximately related to emotional distress suffered as a result
of receiving the Letter. We also find that appellant is entitled to
an increased nonpecuniary damages award in the amount of $4,000.00.
In reaching this conclusion, the Commission has considered a number
of factors. For example, we considered the nature and severity
of the discrimination, and note that the agency concurred with the
investigator's report that agency management trumped up charges in
order to retaliate against appellant for her prior participation in
the EEO process. We also considered evidence submitted by appellant
concerning the nature and severity of appellant's emotional distress
and related symptoms proximately caused by the issuance of the Letter.
We note that the animus appellant experienced from agency management
was part of a series of acts which appellant considered harassing,
that she underwent psychotherapy during the summer of 1995, and that
the agency accepted without question appellant's contention that her
doctor's visits were proximately related to the act of discrimination
she endured by receiving the Letter on June 15, 1995. We also note that
the emotional distress associated with receiving trumped up charges
contained in the Letter caused appellant to take leave for the entire
summer, and upon her return, she left the Fort Lewis Commissary to work
at another Commissary. However, we are careful to point out that we
considered her prior acrimonious relationship with agency management
and staff as background information only, and this nonpecuniary award
is not intended to compensate appellant for any emotional distress as
a result of events occurring prior to the issuance of the Letter.
We further note that the agency FAD failed to order training and
discipline, if appropriate, to appropriate agency management officials
who were found to have retaliated against appellant for trumping up the
charges contained in the Letter dated June 15, 1995. We finally note
that the agency should post a notice in the Fort Lewis Commissary as
provided in this decision.
CONCLUSION
Accordingly, after a careful review of the record, we AFFIRM the FAD as
MODIFIED, and REMAND this case to the agency to take remedial actions
in accordance with this decision and ORDER below.
ORDER
The agency is ORDERED to take the following remedial action:
The agency shall ensure that the Letter of Counseling dated June 15, 1995,
is rescinded and expunged from any agency personnel records concerning
appellant;
The agency shall ensure that appellant is properly compensated for her
leave of absence between June 26, 1995, and September 16, 1995, and
shall restore applicable sick or annual leave taken during this period.
Alternatively, if appellant was on leave without pay during this period,
appellant shall be awarded back pay, seniority and other employee benefits
for the above-referenced leave period;
To the extent applicable, the agency shall determine the appropriate
amount of back pay (with interest, if applicable) and other benefits
due appellant, pursuant to 29 C.F.R. �1614.501, no later than sixty (60)
calendar days after the date this decision becomes final. The appellant
shall cooperate in the agency's efforts to compute the amount of back pay
and benefits due, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the appellant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The appellant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision;"
The agency shall reimburse reasonable attorney's fees to appellant which
were associated with the processing of her complaint and her appeal,
consistent with our attorney's fees order (H1092), which follows this
order;
The agency shall take immediate steps, no later than sixty (60) days
after the date this decision becomes final, to provide training to
all supervisory and managerial staff at its Fort Lewis Commissary on
the current state of the law on employment discrimination, including
discrimination based on retaliation and the goals behind the law requiring
equal employment opportunities for all;
To the extent applicable, the agency shall make a determination whether
disciplinary action for any management official found to have participated
in the retaliation against appellant for her participation in the EEO
process are warranted;
Within thirty (30) days of the date on which this decision becomes final,
the agency shall tender to appellant pecuniary compensatory damages in
the amount of $1,300.00; and nonpecuniary compensatory damages in the
amount of $4,000.00;
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 back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Fort Lewis Commissary, copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
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.
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/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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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 1, 1998
_______________ _________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated __________ which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. has occurred at the Department of Defense,
Defense Commissary Agency, Fort Lewis Commissary (hereinafter "Fort
Lewis Commissary").
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Fort Lewis Commissary supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The Fort Lewis Commissary was found to have unlawfully retaliated
against the individual affected by the Commission's decision after
agency management issued an improper Letter of Counseling in June of
1995 shortly after the affected individual had filed an EEO complaint
of discrimination. The agency shall therefore remedy the violation
by rescinding and destroying the Letter of Counseling, restoring
annual leave, sick leave, or back pay, if applicable to the affected
individual, providing EEO training to appropriate agency officials,
and providing the individual compensatory damages and attorney's fees.
The Fort Lewis Commissary will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The Fort Lewis Commissary will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 We note that the agency FAD indicated that appellant reported to
work for one hour on August 10, 1995, and subsequently left the
facility.
2 We remind appellant and her counsel that under the Civil Rights Act
of 1991, compensatory damages recoverable for violations of Title VII
is capped at $300,000.00. [citation omitted]
3 In Jackson v. United States Postal Service, EEOC Appeal No. 01923399
(November 12, 1992); request for reconsideration denied, EEOC Request
No. 05930306 (February 1, 1993), 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 "complaining 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. �2000(e)
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 Cobey Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998).