01981579
09-07-2001
Barbara A. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Barbara A. Smith v. United States Postal Service
01981579
9/7/01
.
Barbara A. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01981579
Agency No. 1G-1325-92
Hearing No. 160-95-8002X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning the agency's award of compensatory damages. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Mail Processor at the agency's General Mail Facility,
Springfield, Massachusetts facility. Believing she was a victim of
discrimination, complainant sought EEO counseling and subsequently filed
a formal complaint on September 8, 1992. In her complaint she alleged
she was discriminated against on the basis of disability (back), when:
(1) she was terminated in August 1992<1>; (2) she was not provided a
suitable chair; and (3) the agency changed her work hours.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. After a
hearing, the AJ issued a recommended decision finding complainant was
not discriminated against. The agency issued a final decision adopting
the AJ's recommended decision.
Complainant appealed the agency's final decision. See Smith v. United
States Postal Service, EEOC Appeal No 01954735 (August 21, 1997).
Therein, the Commission found complaint had established she was a
qualified individual with a disability. Furthermore, the Commission found
the AJ erred when he found complainant was not discriminated against.
In that regard, the Commission found complainant was discriminated against
on the basis of disability when she was removed from her position in
August 1992, when she was not supplied with an appropriate chair as an
accommodation from August 1990 until her removal in August 1992, and
when her hours were changed in December 1991. As relief, the Commission
ordered the agency to reinstate complainant, pay her all back pay owed
and restore leave. Furthermore, the Commission ordered the agency to
provide training to the responsible officials, offer complainant to
change her work start time, and conduct a supplemental investigation
into her entitlement to compensatory damages.
In September 1997, the agency sent complainant a request to submit
evidence in support of compensatory damages. After the agency granted a
request for extension of time in which to submit information, complainant
failed to present evidence of compensatory damages. On November 25,
1997, the agency issued a final decision that found complainant was not
entitled to compensatory damages.
On appeal, complainant contends that the agency erred in not considering
her hearing testimony and exhibits which were already part of the record
when determining her entitlement to compensatory damages. She further
argues the agency should restore all leave, and should pay her pecuniary
damages for mileage, prescription medication, psychotherapy co-payments
and interest on her compensatory damages.
In response to complainant's appeal, the agency states that it did
consider complainant's hearing exhibits, but attributed complainant's
emotional distress to �premenopausal symptomology.� In asking that we
affirm the agency's final decision, the agency also submits a decision
of the OWCP Hearing Representative who issued a determination as to
complainant's claim for worker's compensation benefits.
ANALYSIS AND FINDINGS
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for post-Act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages
do not include back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII. To receive an award of
compensatory damages, a complainant must demonstrate that he or she
has been harmed as a result of the agency's discriminatory action,
i.e., 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 reconsid; denied, EEOC
Request No. 05940927 (December 11, 1995); EEOC's Enforcement Guidance:
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992)
("Guidance").
Applying the above standards, we find complainant has established
that she suffered harm as a result of the discrimination. The record
contains medical documentation that supports a causal connection
between the discriminatory treatment and complainant's distress,
which will be discussed below. We disagree with the agency's findings
that complainant's emotional distress was caused by �premenopausal
symptomology.� The evidence in the record overwhelmingly reveals
complainant suffered emotional distress due to the agency's change in
hours and ultimate removal, as well as the agency's failure to accommodate
her disability. The record supports the notion that complainant's
progress improved the more she was away from work, and worsened when
she returned to the work environment where she was not accommodated.
Furthermore, we are not persuaded by the agency's inclusion of the Office
of Worker's Compensation Program's determination that complainant was
not injured �in the performance of duties.�
Finally, complainant succeeded in proving both intentional discrimination,
as well as a failure to accommodate. We note that this is not
a case where the agency made a good faith effort to reasonably
accommodate complainant. Accordingly, the agency is liable for
appropriate proven compensatory damages based on both the findings
of intentional discrimination, as well as the finding of denial of
reasonable accommodation. See Teshima v. United States Postal Service,
EEOC Appeal No. 01961997 (May 5, 1998).
A. Pecuniary Damages
Compensatory damages may be awarded for pecuniary losses that are
directly or proximately caused by the agency's discriminatory conduct.
See Guidance at 8. Pecuniary losses are out-of-pocket expenses incurred as
a result of the agency's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
Past pecuniary losses are losses incurred prior to the resolution
of a complaint through a finding of discrimination, the issuance of
a full-relief offer, or a voluntary settlement. Id. at 8-9. Future
pecuniary losses are losses that are likely to occur after resolution of a
complaint. Id. at 9. For claims seeking pecuniary damages, a complainant
should proffer objective evidence documenting out-of-pocket expenses for
all actual costs and an explanation of the expense, e.g., medical and
psychological billings, other costs associated with the injury caused
by the agency's actions, and an explanation for the expenditure. Id. at 9.
In this case, complainant requested pecuniary damages for mileage costs.
In that regard, complainant explained that as a result of the agency's
discriminatory treatment in changing her work hours, complainant lost
her access to a car pool, and was forced to drive herself. However,
complainant did not provide sufficient evidence establishing the number
of times she drove herself to work. As such, we are unable to calculate
any award for mileage.
Complainant requests payment for co-payments towards psychotherapy
treatment related to the discrimination. However, she failed to provide
evidence of bills related to doctor's visits. As such, we are unable
to calculate pecuniary damages for complainant's doctor's visits.
Complainant also requests pecuniary damages for co-payments made
towards medication prescribed by her physicians. Specifically, the
record reveals complainant was prescribed a number of medications for
treatment of anxiety and depression, including Prozac, Zoloft and Doxepin.
Complainant submits evidence of co-payments in the amount of $330.00
for prescriptions from February 1992 to December 1994, and $315.00 from
December 1994 through October 1997. Since we find these out-of-pocket
expenses were causally related to the discrimination, and complainant
provided sufficient evidence in support of the expenses, we find the
agency should pay complainant $645.00 in pecuniary damages for her
prescription co-payments.
B. Non-Pecuniary Damages
Non-pecuniary damages constitute the sums necessary to compensate the
injured party for actual harm, even where the harm is intangible.
Carter v. Duncan - Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984).
In cases against agencies with more than 500 employees, non-pecuniary
damages are limited to $300,000.00. We note that non-pecuniary losses
for emotional harm are more difficult to prove than pecuniary losses.
See Guidance at 5. Emotional harm will not be presumed simply because
the complainant is a victim of discrimination. Id. The existence,
nature, and severity of emotional harm must be proved. Id. The method
for computing non-pecuniary damages should typically be based on
a consideration of the severity and duration of harm. Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
In determining the severity of the harm, consideration should be given
to all resulting damage of the discrimination, for example, whether the
harm was accompanied by occasional sleeplessness, or a nervous breakdown
resulting in years of psychotherapy. Guidance at 8. The duration of
the emotional harm is also relevant, meaning that a complainant who has
suffered from severe depression for two months may be awarded less money
than a complainant who has suffered from severe depression for a year.
Id. at 8. We note that for a proper award of non-pecuniary 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 awarded in similar cases. See Ward - Jenkins
v. Department of the Interior, EEOC Appeal No. 01 961483 (March 4, 1999)
(citing Cygnar v. City of Chicago, 865 F.2d 827 , 848 (7th Cir. 1989)).
Finally, we note that the Commission applies the principle that
"a tortfeasor takes its victims as it finds them." Wallis v. United
States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995)
(quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290 , 1295
(7th Cir. 1987)).
We note that the Commission has awarded compensatory damages in cases
somewhat similar to complainant's case in terms of the harm sustained.
See, e.g., Brown v. Department of Justice, EEOC Appeal No. 01983712
(June 22, 2000) ($75,000.00 in non-pecuniary damages where the agency's
discrimination caused sleeplessness, insomnia, argumentative behavior,
depression, anxiety, low self esteem, increased irritability, and
aggravation of complainant's post traumatic stress syndrome); Ward -
Jenkins v. Department of the Interior, EEOC Appeal No. 01961483 (March 4,
1999) ($50,000 in non-pecuniary damages for retaliation which exacerbated
pre-existing Borderline Personality Disorder); Johnson v. Department of
the Interior, EEOC Appeal No. 01961812 (June 18, 1998) ($37,500.00 in
nonpecuniary damages where medical evidence established depression and
related symptoms as a result of the agency's discrimination); Turner
v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518
(April 27, 1998) ($40,000 in nonpecuniary damages for physical pain,
loss of enjoyment of life and loss of health sustained by complainant as a
result of harassment); Wallis v. United States Postal Service, EEOC Appeal
No. 01950510 (November 13, 1995) ($50,000.00 in non-pecuniary damages
where the discrimination aggravated of pre-existing emotional condition).
After analyzing the evidence which establishes the physical and emotional
harm sustained by complainant and upon consideration of damage awards
reached in comparable cases, the Commission finds that complainant is
entitled to an award of non-pecuniary damages in the amount of $40,000.00.
We find this case analogous to the above - referenced cases, with respect
to the nature, severity and duration of the harm. In reviewing the
evidence, we find that complainant has suffered physical and emotional
harm in the form of anxiety, depression, insomnia, tearfulness and
helplessness. Complainant, who was diagnosed with Major Depression
stated that her depression often made her avoid getting out of bed,
and impeded decision making and concentration. The record also reveals
complainant suffered a 30 pound weight gain between 1992 and 1993.
Complainant spoke of other physical manifestations such as pressure
and pounding in her chest, as well as nightmares. The record reveals
complainant sought treatment for her depression for over a year, and
was prescribed anti-depressant medication for several years. Finally,
we note that this award is not motivated by passion or prejudice, is
not "monstrously excessive" standing alone, and is consistent with the
amounts awarded in similar cases. See Cygnar, 865 F.2d at 848.
Complainant argues on appeal that she has not been reimbursed for leave
taken as a result of the discrimination. A request for compensation for
leave taken, due to emotional distress, as a result of discrimination,
is a claim for equitable relief, not compensatory damages. McGowan -
Butler v. Department of Treasury, EEOC Request No. 059 40636 (September 9,
1994). Pursuant to the order in Smith v. United States Postal Service,
EEOC Appeal No.01954735 (August 21, 1997), the agency was ordered
to restore all leave. To the extent the agency has not yet done so,
they are ordered to comply. If complainant believes the agency has not
complied with the prior decision, she is advised to file a petition for
enforcement as directed in the paragraph below.
CONCLUSION
Accordingly, based upon a careful review of the record, we REVERSE
the agency's final decision and order the agency to comply with the
ORDER below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days from the date this decision becomes final, the
agency shall pay complainant $645.00 in pecuniary damages and $40,000.00
in non-pecuniary damages.
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 backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
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 (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
9/7/01
Date
1Complainant was eventually reinstated pursuant to the grievance
procedure.