01a14771
07-31-2003
Andrea R. Ramsey, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Andrea R. Ramsey v. Social Security Administration
01A14771
07-31-03
.
Andrea R. Ramsey,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A14771
Agency No. 95-0460-SSA
DECISION
Andrea R. Ramsey (hereinafter referred to as complainant) filed an
appeal from the July 18, 2001, final decision of the Social Security
Administration (hereinafter referred to as the agency) concerning her
claim for compensatory damages submitted pursuant to the Commission's
decision in Ramsey v. Social Security Administration, EEOC Request
No. 05990513 (July 13, 2000), affirming, EEOC Appeal No. 01981129
(February 9, 1999). 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.
In several decisions issued in February 1999, the Commission found,
inter alia, that the agency discriminated against complainant and
others based on race when managers failed to advertise a vacancy in
March 1995.<1> With regard to complainant, the decision found that the
agency showed that she would not have been selected for the position had
it been posted but that she was entitled to proven compensatory damages.
Complainant presented her claim for compensatory damages, and the agency
awarded her $1,000 in non-pecuniary damages, noting in addition that
complainant chose not to supplement her claim upon the agency's request
for further information. It is from this final agency decision (FAD)
that complainant has filed the instant appeal.
To explain its award, the agency provided a legal memorandum that
described complainant's submission and reviewed relevant points of law.
With regard to any claim for pecuniary damages, the memorandum concluded
that she was not entitled to such relief, since she did not submit
objective evidence demonstrating out-of-pocket expenses. With regard to
her claim for non-pecuniary damages, the agency found that she submitted
limited information and did not distinguish between the harm suffered
as a result of the March 1995 discrimination and other agency actions
or the EEO process. The agency concluded that an award of $1,000 was
appropriate.
On appeal, complainant stated that the AJ awarded her retroactive
promotion, back pay, and compensatory damages. In addition, she
asserted that the compensatory damages award did not fully remedy her.
To the extent that complainant is claiming the relief ordered by the AJ
(retroactive promotion, back pay, and compensatory damages), she misreads
the Commission's decisions. Although the Commission agreed with the AJ's
finding of discrimination, it did not agree with the remedy provided by
the AJ; the Commission's Order of remedy superceded the AJ's decision.
See ORDER, EEOC Request No. 05990513 (July 13, 2000).
The Commission has issued legal guidance on compensatory damages.
Enforcement Guidance: Compensatory and Punitive Damages Available under
� 102 of the Civil Rights Act of 1991, No. N 915-002 (July 14, 1992)
(Guidance). Compensatory damages are awarded for losses and suffering due
to the discriminatory acts or conduct of the agency and may include past
pecuniary losses, future pecuniary losses, and non-pecuniary losses that
are directly or proximately caused by the agency's conduct. Guidance
at 8. It is the complainant's burden to demonstrate, through appropriate
evidence and documentation, the harm suffered as a result of the agency's
actions; 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); Guidance at 11-12,
14; see also, Carpenter v. Department of Agriculture, EEOC Appeal
No. 01945652 (July 17, 1995). Awards are limited to compensation
for the actual harm suffered as a result of the agency's actions, and
it is complainant's burden to demonstrate the duration of the harm.
See Rivera v. Department of the Navy, supra; Carter v. Duncan-Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1984); Guidance at 13.
The agency is only responsible for those damages that are shown to be
caused by the agency's discriminatory conduct. Carle v. Department of
the Navy, EEOC Appeal No. 01922369 (January 5, 1993); 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 show that the agency's actions found to
be discriminatory were the cause of the harm or loss. Guidance at 8.
Objective evidence in support of a claim for pecuniary damages includes
documentation showing all actual, out-of-pocket expenses with an
explanation of the expenditure; in general, pecuniary damages are those
expenses which are subject to precise quantification. Guidance at 7.
For non-pecuniary claims, statements from the complainant and others,
including family members, co-workers, and medical professionals,
addressing the effect of the agency's action are examples of evidence
necessary to support a claim. Guidance at 9; Carle v. Department of
the Navy, supra.
We have carefully reviewed complainant's submission in support of her
claim for compensatory damages and find that the award issued by the
agency is appropriate and correct.<2> First, with regard to pecuniary
damages, complainant did not present a claim for pecuniary damages.
Turning to non-pecuniary damages, we note that such damages are available
for the intangible injuries of emotional harm, such as emotional pain,
suffering, inconvenience, mental anguish, and loss of enjoyment of life,
caused by the agency's discriminatory action.
Here, the Commission found that the agency discriminated against
complainant in March 1995 when it failed to post a vacancy. To claim
non-pecuniary pain and suffering damages, complainant must show that
the agency's March 1995 failure to post caused the harm she seeks the
damages for. While her statement refers to the March 1995 event, most of
it describes different events that occurred long before or substantially
after March 1995. In addition, her claims that she developed recurrent
pneumonia or bronchitis because of the agency's discrimination are not
supported by any medical statement, and we note that these illnesses
began two years prior to the March 1995 event. Further, none of the
documents complainant submitted are relevant to a claim in this matter,
i.e., they refer to events more than one year after the March 1995 event,
where the illness or its causation is not described. Her mental problems
are initially reported in a letter dated March 2000, five years after
the event at issue.
For the above reasons, we agree with the agency's award for compensatory
damages.
CONCLUSION
Accordingly, the agency's decision was proper and 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
____07-31-03______________
Date
1Following a hearing, an EEOC Administrative Judge (AJ) found
discrimination based on race/color and directed the agency to
retroactively promote complainant. The agency accepted the AJ's
discrimination finding but concluded that complainant would not have
been selected had the vacancy been advertised.
2Reference is made to the agency legal memorandum describing complainant's
submission, p. 4, for a detailed listing of the documents submitted.