01A04047
12-23-2002
Anita Bagwell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anita Bagwell v. United States Postal Service
01A04047
12-23-02
.
Anita Bagwell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04047
Agency No. 4C-440-1303-95
Hearing No. 220-96-5099X
DECISION
On May 8, 2000, Anita Bagwell (Complainant) timely initiated an appeal
to the Equal Employment Opportunity Commission (EEOC or Commission) from
the United States Postal Service's final decision denying compensatory
damages in connection with her equal employment opportunity (EEO)
complaint. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission REVERSES the agency's final
decision (FAD).
ISSUE PRESENTED
The issue presented on appeal is whether the agency's determination that
complainant was not entitled to compensatory damage was proper.
BACKGROUND
Complainant, a Letter Carrier and EEO representative at the agency's
Beachwood Station facility in Cleveland, Ohio, filed a sex and retaliation
complaint alleging that an agency manager (RMO) interrupted an EEO
meeting, questioned her about her footwear<1>, and tried to look up her
skirt uniform while he questioned her. After appropriate procedural
processing, complainant requested a hearing before an EEOC administrative
judge (AJ). After a hearing, the AJ found that complainant failed to show
that she had been discriminated against because of her sex. The AJ went
on to find that complainant had been subject to reprisal. Specifically,
the RMO was unable to identify the emergency circumstances which required
him to interrupt complainant's EEO meeting, rather than waiting for the
meeting to end to determine if her footwear complied with the agency dress
code requirements. The AJ also noted that even though RMO testified that
complainant's actions were egregious enough to interrupt the meeting, he
did not bother to discipline complainant for her behavior. The AJ then
denied complainant's request for compensatory damages finding that while
complainant established her claim for reprisal, she did not introduce
evidence of any emotional harm or pain and suffering that she experienced
due to RMO's actions except for a short statement to the effect that she
felt embarrassed and humiliated. The agency adopted the AJ's recommended
decision. Complainant appealed the agency's decision to the Commission
in Bagwell v. United States Postal Service, EEOC Appeal No. 01970692
(December 2, 1998); request to reconsider denied, EEOC Request 05990289,
(June 17, 1999). The Commission determined that there was insufficient
evidence in the record to make a decision on compensatory damages and
remanded the complaint to the agency in order to allow complainant to
submit evidence in support of her claim.
Subsequently, the agency sent complainant a brief letter requesting
�objective evidence that the damages in question were as a result of the
agency's discrimination and the amount of damages claimed.� The agency
also included an internal form (PS Form 2569-C), that asked questions
about changes in complainant's family or marital status, deaths in her
family, whether she had suffered a serious illness or other traumatic
event, encountered financial difficulties, or suffered from dietary
problems. In response, complainant indicated that by condoning RMO
actions, the agency gave other employees the impression that it was
appropriate for managers to interrupt EEO meetings without just cause.
Further, complainant indicated that as a result of the RMO's actions she
became the topic of gossip and whispers and that her name was maligned.
Complainant then requested $500,000 in compensatory damages. Complainant
returned the blank PS Form 2569-C, indicating that the questions asked
were �personal and private and therefore, [could] not be answered in
the manner of which the form was sent.� Complainant then requested that
the agency explain the appropriate laws and regulations which required
that the form be completed. The agency did not respond to complainant's
request and instead issued a final decision finding that complainant
was not entitled to compensatory damages. Neither complainant nor the
agency submitted arguments on appeal.
FINDINGS AND ANALYSIS
Complainant must present objective evidence that the agency's
discriminatory actions caused her to suffer the harm complained of.
See Smith v. Department of Defense, EEOC Appeal No. 01943844 (May 8,
1996). In Carle v. Dept. of the Navy, EEOC Appeal No. 01922369 (January
5, 1993), the Commission explained, that "objective evidence" of any
pecuniary and non-pecuniary damages could include a statement by the
complainant explaining how he or she was affected by the discrimination.
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could also
submit documentation of medical or psychiatric treatment related to the
effects of the discrimination. Id.
The statute authorizing compensatory damage awards limits the total
amount that can be awarded each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of individuals employed by respondent employer. The limit for an
employer with more than 500 employees, such as the agency, is $300,000.
42 U.S.C. � 1981(b)(3)(D).
There is no precise formula for determining the amount of damages for
non-pecuniary losses except that the award should reflect the nature and
severity of the harm and the duration or expected duration of the harm.
Loving v. Department of Treasury, EEOC Appeal No. 01955789 (August 29,
1997). It should likewise be consistent with amounts awarded in similar
cases. Hogeland v. Department of Agriculture, EEOC Appeal No. 01976440
(June 12, 1999).
Complainant requested $500,000 in non-pecuniary damages, for the emotional
distress she suffered as a result of the discrimination, and resulting
harm to her good name. The agency did not award complainant damages,
and reasoned that complainant provided no evidence of harm other than the
damage to her name to support a claim of damages. Further, the agency
argued that complainant failed to show that a nexus existed between
the harm and the alleged discrimination. We disagree with the agency's
reasoning, and find that complainant is entitled to a reasonable amount
in damages.
We note that while the agency requested that complainant submit
documentation, it did not properly explain the type of documentation
complainant needed to submit in order to support her claim for
compensatory damages. Moreover, in her statement responding to the
agency request for information, complainant explained that she believed
that the PS Form 2569-C asked questions that were �personal and private
and therefore, [could] not be answered� on the form without further
clarification from the agency as to why the information was necessary,
and what law or regulation authorized the release of the information.
We find that responding to the request would not have been an undue burden
for the agency. Specifically, the agency could have referenced Commission
decisions such as Smith v. Department of Defense, and Carle v. Dept. of
the Navy, referenced above, which are instructive as to what evidence
is necessary to support a claim for damages. The agency could have also
have cited to the Commission's Enforcement Guidance on Compensatory and
Punitive Damages Available under 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 (July 14, 1992). Further, the agency could
have explained why complainant was required to complete the PS Form
2569-C and how it would be used to estimate her entitlement to damages.
Moreover, we note that this is a clarification that complainant should
not have had to request as the agency should have clearly explained what
was needed and why at the time it sent complainant the PS Form 2569-C.
A review of the record also shows that complainant was an EEO
representative, with eight years of EEO experience at the time that
the AJ issued a decision on her complaint. AJ Decision at p. 6.
It is unclear then, why complainant would not have understood her
obligations or the standard of proof she would need to meet in order to
prevail in her claim for damages. However, because the agency failed
to provide the requested clarification, or an adequate explanation for
it's failure, it may not now seek to summarily deny complainant's claim
due to insufficient evidence. While complainant did not submit detailed
evidence of the harm she may have suffered, in part due to the agency's
failure to provide the information she requested, we find that there
is sufficient evidence in the record to make a determination whether
complainant is entitled to damages.
We note that the amount of compensatory damages awarded by the Commission
has varied according to the injury sustained by the complainant. See,
e.g.,Mozell v. Depart of the interior, EEOC Appeal No. 01981521 (August
12, 1999) ($1,000 in damages where complainant testified that she became
more emotional, was irritable and paranoid), DeMeuse v. U.S. Postal
Service, EEOC Appeal No. 01950324 (May 22, 1997) ($1,500 in damages
where complainant testified as to exacerbation of post-traumatic stress
disorder); Lawrence v. U. S. Postal Service, EEOC Appeal No. 01952288
(April 18, 1996) ($3,000 in damages where complainant presented
primarily non-medical evidence that she was irritable, experienced
anxiety attacks, and was shunned by her co-workers); White v. Department
of Veterans Affairs, EEOC Appeal No. 01950342 (June 13, 1997) ($5,000 in
non-pecuniary damages based on emotional distress); Hull v. Department
of Veterans Affairs, EEOC Appeal No. 01951441 (Sept. 18, 1998) ($12,000
in non-pecuniary damages based on complainant's testimony of emotional
distress due to retaliatory harassment).
The record shows that during the hearing complainant testified that she
was embarrassed and humiliated by RMO's actions. Further, in her letter
to the agency dated September 1, 1999, complainant indicated that as a
result of the RMO's actions, she became the topic of gossip and whispers
and that her name was maligned, and that because the agency failed to
take any actions against the RMO, the agency gave the impression that
it was appropriate for him to take the action he did. Based on this
evidence we find that complainant has established a causal nexus between
the discrimination that occurred and the emotional harm she suffered.
Taking into account the evidence of non-pecuniary damages submitted
by complainant, the Commission finds that complainant is entitled to
non-pecuniary damages in the amount of $1,500.00. 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 complainant's emotional distress and related
symptoms, and the sparseness of the evidence pertaining to this emotional
distress. We note that this sum is meant to compensate complainant for
the emotional distress she suffered, which was caused entirely by the
agency's discriminatory actions. Finally, this amount meets the goals
of not being motivated by passion or prejudice, not being "monstrously
excessive" standing alone, and being consistent with the amounts awarded
in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848
(7th Cir. 1989) at 574.
CONCLUSION
Accordingly, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we reverse the
agency's final decision and order the agency to take remedial actions
in accordance with this decision and Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
1. The agency shall pay complainant compensatory damages in the amount
of $1,500.00. The agency shall tender full payment to complainant
no later than thirty (30) calendar days after the date on which this
decision becomes final;
2. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
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 2000). 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.
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.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
___12-23-02_______________
Date
1The record reveals that complainant was not wearing the shoes
provided as a part of her regular uniform, but was instead wearing
3 inch heels.