01984374
03-16-2000
Benjamin C. Dawson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Benjamin C. Dawson v. United States Postal Service
01984374
March 16, 2000
Benjamin C. Dawson, )
Complainant, )
)
v. ) Appeal No. 01984374
) Agency No. 4E-2149-93
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Complainant filed the instant appeal from the agency's decision dated
March 27, 1998 awarding complainant compensatory damages.<1>
ISSUE PRESENTED
The issue presented is whether the agency correctly determined that
complainant was entitled to a payment of $445.50 in compensatory damages
pursuant to a finding of discrimination by the Commission.
BACKGROUND
The instant complaint was the subject of a prior Commission decision
in Dawson v. United States Postal Serv., EEOC Appeal No. 01953024 (June
2, 1997).
Complainant filed an EEO complaint on July 7, 1993 and an EEOC
Administrative Judge issued a decision on December 30, 1994 recommending
a finding of discrimination on the basis of reprisal in the following
claims:
Complainant was accused of insubordination by his manager.
Complainant was moved from his office within his station.
Complainant's work schedule (day off and begin/end tour time) was changed.
a. Complainant was transferred from the Maryvale Station to the McDowell
Station.
Complainant was nonselected for the mentoring program.
Dawson, EEOC Appeal No. 01953024. Claims 1, 2, 3, 4(a), and 4(c), all
occurred from May 1993 - August 1993. The administrative judge found no
reprisal discrimination with respect to claims 4(b) and 4(d) and found
no race discrimination with respect to any claim. Id. On February
27, 1995 the agency issued a decision finding no discrimination. Id.
On appeal the Commission reversed the portion of the agency's decision
rejecting the administrative judge's recommended decision finding reprisal
discrimination with respect to claims 1, 2, 3, 4(a), and 4(c). Id.
The Commission affirmed the portion of the agency's decision finding no
reprisal discrimination with respect to claims 4(b) and 4(d) and no race
discrimination with respect to any claim. Id.
In addition to ordering other remedies, the Commission ordered the agency
to take the following action:
The agency shall conduct a supplemental investigation on the issue of
[complainant's] entitlement to compensatory damages, and provide him
with an opportunity to develop the record with respect to this claim.
Specifically, he shall be afforded an opportunity to establish a
causal relationship between the discrimination and any pecuniary or
non-pecuniary losses. Thereafter, the agency shall issue a final decision
on the amount of compensatory damages owed to [complainant], if any.
29 C.F.R. � 1614.110. The supplemental investigation and issuance of
the final decision must be completed within 120 calendar day of the
date this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
Id. (footnote omitted).
The agency subsequently conducted an investigation into the issue of
complainant's entitlement to compensatory damages. On March 27, 1998
the agency issued a decision finding that complainant was entitled to
$445.50 for compensatory damages. The instant appeal is from the March
27, 1998 decision.
By letter dated October 13, 1997 complainant submitted his claim
for compensatory damages. In the statement for compensatory damages
complainant requested: (1) $5,191.90 for medical bills for chest pains;
(2) $5,490.00 for medical bills for headaches and stomach problems; (3)
$1,500.00 for 15 sessions of therapy (future); (4) $540 for medication
for 12 months (future); (5) $534.60 for mileage from Maryvale Station
to McDowell Station from August 26, 1993 to December 20, 1993 (22 miles
x 30 cents/mile); (6) $50.00 postage for certified mail; (7) $6,000.00
substitute for attorney's fees to compensate for complainant's time; (8)
$6,671.00 in attorney's fees; (9) $225 for Dr. A's session and report;
(10) $3,000.00 for 1993 performance award and supervisors bonus or
award at Osborn Station; and (11) and unspecified amount for "[l]ost
compensation, lost benefits and lost retirement contributions from 1993
to present[.]"
In the March 27, 1998 decision the agency found that complainant failed
to prove a causal connection between the discriminatory actions and the
chest pains, headaches, and stomach problems. The agency found that
complainant failed to submit any documentary evidence or reason for his
claim for damages for a 1993 performance award and supervisors bonus or
awards at Osborn Station. The agency also rejected complainant's claim
for payment for a session with and report from Dr. A and for future
therapy and medication recommended by Dr. A. The agency "reject[ed]
the fees paid to Dr. [A] as he was contacted after the complainant's
receipt of the Commission's decision and Dr. [A's] evaluation clearly
conflicts with other medical documentation supported by various other
attending physicians."
The agency rejected complainant's claim for certified mail fees on the
grounds that complainant provided no evidence of such mail costs and
because regulations do not provide for the reimbursement of postage fees
incurred by an individual in the processing of his complaint. The agency
rejected complainant's claim for reimbursement of complainant's time spent
on the subject complaint because complainant was not a member of the Bar.
The agency allowed reimbursement for the mileage requested by complainant
but only at the mileage rate of 25 cents per mile which the agency
found was the standard mileage rate during 1993. The agency found
that complainant will be reimbursed for the amount of $445.50 providing
complainant had not already been reimbursed for mileage and providing
that complainant actually reported to the McDowell station the entire
81 days claimed.
Regarding complainant's claim for "[l]ost compensation, lost benefits and
lost retirement contributions from 1993 to present" the agency found that
the Commission's order in EEOC Appeal No. 01953024 did not provide for
retroactive back pay for higher level details nor back pay for promotions.
Regarding complainant's claim for nonpecuniary costs, the agency found
that complainant failed to provide a specific amount he is claiming
for nonpecuniary damages. The agency found that complainant failed to
establish a causal connection between the alleged nonpecuniary losses and
the events in the subject complaint. The agency rejected complainant's
claim for damages due to nonpecuniary losses. Regarding complainant's
claim for attorney's fees for his attorney, the agency found that it
had previously notified complainant's attorney to submit the request
for attorney's fees to the agency's Law Department and that the instant
decision would only address the claim for compensatory damages.
On appeal complainant argues that he has submitted sufficient evidence
to establish a causal connection between the discrimination and the
resulting harm experienced by complainant. On appeal complainant argues
that he had requested $50,000.00 for complainant's "pain and suffering."
Regarding attorney's fees complainant stated that the claim for attorney's
fees will be submitted at a later time to the agency. Therefore, we
shall not address the request for attorney's fees from complainant's
attorney in this decision.
ANALYSIS AND FINDINGS
I. Legal Standards for an Award of Compensatory Damages
Section 102(a) of the Civil Rights Act of 1991 (CRA 1991), 105 Stat. 1071,
Pub. L. No. 102-166, codified at 42 U.S.C. � 1981a, authorizes an award of
compensatory damages as part of the "make whole" relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended. Section 1981a(b)(2) indicates that compensatory
damages do not include back pay, interest on back pay, or any other
type of equitable relief authorized by Title VII. Section 1981a(b)(3)
limits the total amount of compensatory damages that may be awarded
each complaining party for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other nonpecuniary losses, according to the number of individuals
employed by the respondent employer. The limit for an employer with
more than 500 employees, such as the instant agency, is $300,000.
42 U.S.C. � 1981(b)(3)(D).
The Commission has held that compensatory damages are recoverable in
the administrative process. Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (Nov. 12, 1992), req. to reopen den., EEOC
Request No. 05930306 (Feb. 1, 1993). To receive an award of compensatory
damages, a complainant must demonstrate that he has been 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.
Leperi v. Department of Agriculture, EEOC Appeal No. 01964107 (Apr. 2,
1998) (citing Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994), req. for reconsideration den., EEOC Request No. 05940927
(Dec. 8, 1995); Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 at 11-12,
14 (July 14, 1992)).
Compensatory damages may be awarded for past pecuniary losses,<2>
future pecuniary losses, and nonpecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. EEOC Notice
No. N 915.002 at 8. Pecuniary losses are out-of-pocket expenses incurred
as a result of the employer'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 the pecuniary losses that are incurred
prior to the resolution of a complaint via a finding of discrimination,
the issuance of a full-relief offer, or a voluntary settlement. Id. at
8-9. Future pecuniary losses are out-of-pocket expenses that are likely
to occur after resolution of a complaint. Id. at 9. Nonpecuniary losses
are losses that are not subject to precise quantification, including
emotional pain, suffering, inconvenience, mental anguish, loss of
enjoyment of life, injury to professional standing, injury to character
and reputation, injury to credit standing, and loss of health. Id. at 10.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses. Smith v. Department of Defense,
EEOC Appeal No. 01943844 (May 9, 1996). A complainant has a duty to
mitigate his pecuniary damages. EEOC Notice No. N 915.002 at 9. If a
respondent can prove that a complainant failed to mitigate pecuniary
damages, then the damages award should be reduced to reflect all losses
that could have been avoided with reasonable diligence. Id. at 9-10.
There are no precise formulae for determining the amount of damages for
nonpecuniary losses. Smith, EEOC Appeal No. 01943844. Damage awards
for nonpecuniary losses that have been assessed by juries and courts
have varied significantly. EEOC Notice No. N 915.002 at 13. An award
of compensatory damages for nonpecuniary losses, including emotional
harm, should reflect the extent to which the respondent's discriminatory
action directly caused the harm and the extent to which other factors
also caused the harm. Id. at 11-12. An award of 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.
Compensatory damages may be awarded for all pecuniary and nonpecuniary
losses post-dating the November 21, 1991 effective date of CRA 1991.
See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993),
the Commission described the type of objective evidence that an agency
may obtain when assessing the merits of a complainant's request for
emotional distress damages:
[E]vidence should have taken the form of a statement by [complainant]
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
[complainant] day to day, both on and off the job. In addition, the
agency should have asked [complainant] to provide objective and other
evidence linking . . . the distress to the unlawful discrimination. . . .
Objective evidence may include statements from the complainant
concerning his emotional pain or suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to professional standing,
injury to character or reputation, injury to credit standing, loss
of health, and any other nonpecuniary losses that are incurred as a
result of the discriminatory conduct. Smith, EEOC Appeal No. 01943844.
Statements from others, including family members, friends, and health
care providers could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, loss of self-esteem,
excessive fatigue, or a nervous breakdown. Id. Objective evidence may
also include documents indicating a complainant's actual out-of-pocket
expenses related to medical treatment and counseling related to the
injury caused by the respondent's discriminatory action. Id.
II. Past Pecuniary Damages
A. Medical Expenses
Complainant has submitted copies of bills from physicians for services
provided in connection with complainant's complaints of chest pains,
headaches, and stomach pains. A report dated May 24, 1994 from Dr. B
(doctor of medicine) states that complainant had "chronic headaches"
for 15 years prior to May 24, 1994. A letter entitled Neurological
Consultation dated May 2, 1997 from Dr. C (doctor of medicine) states
that an MRI scan showed that complainant had "multilevel degenerative
disc disease." Another medical report dated June 10, 1996 states that
complainant has had "headaches for almost 20 yrs. since divorcing his
first wife, and they have been virtually daily in the neck and frontal
area . . ." The June 10, 1996 medical report stated that the headaches
were suspected to be "related to cervical strain and compounded by the
longstanding nature of the headaches."
A Cardiology Consultation from Dr. D (doctor of medicine) stated that
complainant was assessed on February 21, 1995 the day after complainant
was admitted to the hospital with recurrent chest discomfort. Dr. D
stated in the Cardiology Consultation:
The patient is most bothered by headaches, which have been chronic
since 1985.
. . . . The patient has a five- to six-year history of intermittent
chest pains. . . . Of note is that he plays racquetball once a week
without any symptoms.
After a thorough review of all the medical documentation in the record
we find that complainant had preexisting medical conditions prior
to the discriminatory incidents at issue. While it is true that the
discriminatory incidents could, in theory, have exacerbated complainant's
preexisting medical conditions, the Commission finds that complainant
has not shown the necessary causal connection between the discriminatory
incidents at issue in this decision and the medical expenses for which
he seeks reimbursement. Therefore, we find that the agency properly
rejected complainant's claim for past pecuniary damages for medical
bills for chest pains, headaches, and stomach problems.
B. Mileage
The agency allowed 25 cents per mile for the extra mileage complainant
had to travel due to the transfer to the McDowell station rather than
the 30 cents per mile claimed by complainant. On appeal complainant
has not challenged the agency's calculation of damages for the mileage
including the use of the rate of 25 cents per mile for 81 days in 1993
(22 miles round trip). The Commission has held that "the reimbursement
rate the federal government provided its employees when conducting
official business in a personal automobile in 1993 was 25 [cents]
a mile." Santiago v. Department of the Army, EEOC Appeal No. 01955684
(Oct. 14, 1998). Therefore, we find that the agency properly calculated
the amount of reimbursement for the mileage as $445.50 (25 cents/mile
x 22 miles x 81 days).
The agency stated that complainant would be reimbursed $445.50 provided
complainant has not already been reimbursed for mileage and provided
complainant actually reported to the McDowell Station for the entire 81
days claimed. The Commission finds that the agency has not identified
any evidence casting any doubt on complainant's claim for 81 days of
travel or indicating that complainant has already received reimbursement
for the mileage. Therefore, we shall order the agency to pay $445.50
in past pecuniary damages for the mileage claimed.
C. Postage
Complainant claimed damages for postage for certified mail sent to the
EEO Office. Complainant has not provided any receipts of these costs
and therefore, even if complainant could be reimbursed for such fees, he
has not provided sufficient evidence of such fees to allow reimbursement.
D. Substitute Attorney's Fees
Complainant has requested "substitute" attorney's fees for the time
complainant spent on self representation before and during the EEO
hearing. Awards for attorney's fees are separate from compensatory damage
awards. The Commission agrees with the agency that complainant is not
entitled to payment of fees for his non-attorney representative (i.e.,
complainant). 29 C.F.R. � 1614.501(e)(1)(iii); Johnson v. Department
of the Interior, EEOC Appeal No. 01961812 (June 18, 1998).
E. "1993 Performance Award and Supervisors Bonus or Award of Osborn
Station"
Complainant claimed $3,000.00 in damages for "1993 performance award
and supervisors bonus or award of Osborn Station." In his affidavit
complainant claimed:
4. Manager [A] received a large performance award in 1993 and gave
supervisor [A] $2,000 for help during that fiscal year. I had worked
at the Maryvale Station for eleven months of that year and contributed
at least as much to its success, yet I received nothing.
I was a supervisor at the Osborn Station when supervisors [B and C]
each received $1,000. I contributed at least as much to the success of
the Osborn Station as did they and was serving as carrier supervisor,
yet I never received anything.
The Commission finds that complainant has failed to show that the
discriminatory actions in claims 1, 2, 3, 4(a), and 4(c) caused
complainant to not receive the awards and bonus. Complainant's claim
is speculative at best. The Commission agrees with the agency that
complainant should not receive past pecuniary damages for the awards
and bonus.
F. "Lost Compensation, Lost Benefits and Lost Retirement Contributions
from 1993 to Present"
In his affidavit complainant claimed:
I have lost five years of compensation and other benefits I would have
received had I been promoted to a Level 20 in 1993, when I should
have received a promotion during the Postal Service restructuring.
Not only has this affected my pay, but it has affected my retirement
and other benefits as well. After I was not promoted, I began working
on the route inspection team and often put in as much as 30 to 50 hours
of overtime per pay period. I would not have had to do this if I had
received the promotion. The Postal Service is capable of computing the
specific amount of lost compensation, lost benefits and lost retirement
contributions I would have received had I been promoted to a station
manager position in 1993.
The Commission finds that complainant has failed to show that the
discriminatory actions in claims 1, 2, 3, 4(a), and 4(c) caused
complainant to not receive the compensation, benefits, and retirement
contributions he cited in his affidavit. Complainant's claim for these
damages is based on his assertion that the agency improperly failed to
promote him in 1993. There was no consideration of the merits of the
1993 nonpromotion issue in EEOC Appeal No. 01953024. Complainant has
not filed a request for reconsideration from the Commission's decision
in EEOC Appeal No. 01953024. The Commission finds that complainant has
failed to submit the necessary evidence to establish the necessary causal
connection and the necessary evidence of actual damage to complainant's
compensation, benefits, and retirement contributions. The Commission
finds that complainant has failed to show that he is entitled to receive
past pecuniary damages for "lost compensation, lost benefits, and lost
retirement contributions."
III. Future Pecuniary Damages
Complainant has requested a total of $2,265.00 for future pecuniary
damages. The total amount is comprised of: (1) $225.00 for a session and
report from Dr. A on October 13, 1997 (after the Commission's decision
finding discrimination in EEOC Appeal No. 01953024); (2) $1,500.00
for 15 sessions of therapy (counseling) at $100.00 per hour; and (3)
$540.00 for antidepressant medication for one year at $45.00/month.
The record includes a report from Dr. A showing that: (1) complainant
was evaluated in person by Dr. A for one hour on October 13, 1997 and
that the cost of the evaluation and subsequent report was $225.00; (2)
Dr. A recommended that it would be "extremely helpful" for complainant
to receive 15 sessions of counseling and that Dr. A's charge for such
services was $100.00 per hour; and (3) Dr. A recommended that complainant
take antidepressants for "at least 6 months to a year and possibly more"
and that the cost of such medication would range between $30.00 and
$45.00 per month.
Dr. A's report is entitled "Psychological Evaluation." Dr. A's billing
statement indicates that Dr. A is a Psychologist. There is no indication
that Dr. A is a medical doctor. Dr. A concluded that complainant
"suffered significant disruption of his psychological well being, both at
the time of the reported work events and in the time subsequent to it."
Dr. A found that complainant "is suffering from a dysthymic reaction,
that is a depression of at least two years duration."
The agency found that complainant's mental condition was caused by
degenerative disc disease and not the incidents related to the agency.
The agency found that Dr. A's evaluation conflicts with other medical
documentation from various other attending physicians in the record. The
agency also found that Dr. A's report "offers some conflicting statements
[than] was earlier reported by complainant's other attending physicians."
On appeal complainant argues that Dr. A's analysis was correct and that
a letter dated March 3, 1992 from Dr. E relates complainant's medical
problems to the employment discrimination.
Dr. A found that complainant's headaches became more severe and his
stomach complaints "increased dramatically after he was not promoted and
during the events that constituted retaliation according to the EEOC."
Dr. A found that "the etiology of [complainant's] disturbance is the
stressors associated with his job, the failure to receive a promotion
and his subsequent treatment by his supervisors and co-workers . . ."
Dr. A concluded that preexisting conditions did not "have any causal
connection with the symptoms complained of at the present time nor at
the time of his demotion from Superintendent, the concurrent failure to
receive a promotion, and his subsequent stagnation in his job."
The Commission finds that Dr. A has linked complainant's mental and/or
physical symptoms to, at least in large part, complainant's failure
to receive a promotion - the one incident consistently referred to by
Dr. A. As stated supra, complainant's nonpromotion is not a matter
for which the agency can be considered liable in the instant decision.
Nor can complainant's purported demotion be considered in determining
compensatory damages. Only the harm flowing from claims 1, 2, 3,
4(a), and 4(c) may be considered when determining the proper amount of
compensatory damages. Furthermore, the Commission finds that to the
extent that Dr. A is referring in general terms to complainant's EEO
complaint without referring to the specific actions at issue in claims 1,
2, 3, 4(a), and 4(c), the Commission finds that Dr. A has failed to show
how the October 13, 1997 session and report, the recommended counseling,
and the recommended medication, are necessary to remedy the harm caused
by the specific discriminatory actions in claims 1, 2, 3, 4(a), and 4(c).
On appeal complainant refers to a letter dated March 3, 1992 letter
from Dr. E (doctor of medicine - family physician). In the March
3, 1992 letter Dr. E supports complainant's request for sick leave
due to "emotional stress" from agency actions concerning, in part,
complainant's wife. Complainant argues on appeal that Dr. E's letter
related complainant's medical problems to the employment discrimination
and reprisal for complainant's participation in his wife's EEO complaint
and the filing of his own complaints beginning in 1991. The Commission
finds that any purported discriminatory incidents in 1992 can not show
harm in the instant matter because the incidents in claims 1, 2, 3,
4(a), and 4(c) all occurred in 1993. Therefore, Dr. E's letter fails
to show the causation necessary for future pecuniary damages.
Dr. A failed to specifically consider the effect of complainant's
degenerative disc disease, which was diagnosed by various medical
doctors, on the symptoms reported by complainant. None of the other
physicians who examined complainant, of which there were several, during
the relevant time frame, ultimately recommended a course of therapy.
While some physicians suggested possibly prescribing medications, none
of these physicians made the causal connection between claims 1, 2, 3,
4(a), and 4(c) and the need for future medication. Viewing the record
as a whole the Commission finds that Dr. A's report is insufficient to
show a need for treatment of therapy or medication because Dr. A's report
does not persuasively link the discrimination in claims 1, 2, 3, 4(a),
and 4(c) to the October 13, 1997 session and report, the recommended
therapy, and the recommended medication. Therefore, we find that an
award of future of pecuniary damages is inappropriate.
IV. Nonpecuniary Damages
On appeal complainant explains that he is requesting $50,000.00 for
"pain and suffering." In his affidavit complainant claimed that
because of the discrimination he suffered depression, chest pains,
headaches, and stomach pains. Complainant claimed that because of his
nonpromotion he had to answer embarrassing questions from his family,
friends, coworkers, and other unidentified persons. Complainant stated
that the discrimination began in 1991 and that his credibility and career
have been ruined. Complainant stated that he can not feel happy about
his job and that he is viewed as a troublemaker.
Complainant's wife states in an affidavit that after complainant's
nonpromotion on March 5, 1993 complainant "changed dramatically":
complainant did not pay attention to the children as much; complainant
began losing his temper; complainant withdrew from family and friends;
complainant looked sad; complainant became noncommunicative; complainant
complained of headaches, stomach aches, and chest pains; complainant
refused to go anywhere; complainant never went running anymore; their sex
life completely ceased; complainant would not socialize with friends or
the children; and complainant would "simply sit and watch TV and complain
about his headaches and other pains." Complainant's wife concluded:
"I attributed all of this to his debilitating depression at being passed
over for promotion because he had never been like this before."
Complainant's friend (a former coworker) stated in affidavit that after
complainant was not promoted in 1993 complainant began complaining of
headaches. Complainant's friend concluded that complainant's headaches
and "other physical problems . . . appeared directly related to his
disappointment over failing to receive the promotion . . ."
Complainant's cousin stated in an affidavit dated October 13, 1997 that
after complainant's nonpromotion complainant "became depressed" and that
after this time complainant "aged dramatically" and had more headaches.
Complainant's cousin stated that complainant's "personality has changed
as a result of his not being promoted." Complainant's cousin stated that
complainant used to be much more friendly and jovial. Complainant's
cousin stated that complainant has almost become a recluse and is no
longer active in hobbies such as racquetball.
The Commission finds that much of the evidence of the nonpecuniary damages
asserted by complainant and purportedly corroborated by his wife, friend,
and cousin, link the nonpecuniary harm to the nonpromotion which, as
discussed supra, is not at issue in this decision and can not form the
basis for the damage award in this decision. As with pecuniary damages,
the agency is liable only for those damages directly or proximately
caused by the intentional discrimination. Smith, EEOC Appeal No. 01943844
(citing EEOC Notice No. N 915.002 at 11). Thus any nonpecuniary damage
caused by the nonpromotion can not be included in the instant award.
Furthermore, some of the evidence appears contradictory. For instance,
although complainant's wife states that complainant stopped socializing,
complainant's friend indicated that he played racquetball with complainant
"weekly" until 1995 when complainant moved from the Glendale area to
Ahwatukee. Although complainant's wife and cousin stated that complainant
was effectively a recluse, the cousin stated that until approximately
October 1996 when the cousin changed work shifts, he saw complainant
"almost every other weekend at family get-togethers or playing golf,
bowling or swimming." Finally, although complainant's wife states
that their sex life stopped, complainant completed a personal medical
history dated June 10, 1996 in which he indicated that he had no loss
of sexual activity.
Viewing the record as a whole the Commission finds that complainant
incurred nonpecuniary losses in the form of emotional distress as a result
of the discrimination at issue in the instant matter. The statements
provided by complainant, his wife, his friend, and his cousin, are the
type of evidence envisioned in Carle which can be used to support a
claim of nonpecuniary losses. See Carle, EEOC Appeal No. 01922369.
The Commission has held that there are no "hard and fast" rules governing
the amount of nonpecuniary damages to be awarded. Robison-Matheson
v. Social Security Admin., EEOC Appeal No. 01961574 (Oct. 23, 1998).
The Commission has explained, however, that "non-pecuniary damages must be
limited to the sums necessary to compensate the injured party for actual
harm, even where the harm is intangible and should take into account
the severity of the harm and the length of time that the injured party
has suffered from the harm." Smith, EEOC Appeal No. 01943844 (citations
omitted). 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 awarded in similar cases. Id. (citing 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)).
The Commission has awarded nonpecuniary compensatory damages in several
cases somewhat similar to complainant's case. Robison-Matheson, EEOC
Appeal No. 01961574 ($2,000 in nonpecuniary damages for reported sleep
disturbances, lack of appetite, and tearfulness, caused by agency's
undermining of complainant's authority with complainant's staff); Pruette
v. United States Postal Serv., EEOC Appeal No. 01951567 (Mar. 10, 1998)
($3,000.00 in nonpecuniary damages for emotional distress caused in part
by harassing statements by EEO Counselor interfering with EEO process);
Young v. Social Security Admin., EEOC Appeal No. 01955120 (Jan. 30,
1998) ($5,000.00 in nonpecuniary damages for migraines, emotional
distress, humiliation, embarrassment caused by nonselections); Pailin
v. Department of Defense, EEOC Appeal No. 01954350 (Jan. 26, 1998) ($2,500
in nonpecuniary damages for weight loss, fatigue, lack of motivation,
sadness, and diminished self esteem caused in part by discrimination);
DeMeuse v. United States Postal Serv., EEOC Appeal No. 01950324 (May 22,
1997) ($1,500.00 in nonpecuniary damages for emotional distress from
frisking constituting a hostile environment).
The Commission finds that a large part of the claimed nonpecuniary
damages purportedly resulted from the 1993 nonpromotion not at issue in
this decision. The Commission rejects the agency's complete denial of
nonpecuniary damages, because the Commission finds that complainant has
established a causal connection between a portion of the damages and the
discrimination at issue. After considering the nature and severity of
the harm to complainant, the actual duration of the harm, and limiting
the award to those damages caused by the discrimination in claims 1, 2,
3, 4(a), and 4(c), we find that complainant is entitled to an award of
nonpecuniary damages in the amount of $2,000.00. The Commission finds
that such an award is consistent with other awards as cited supra, is
not "monstrously excessive" standing alone, and is not the product of
passion or prejudice.
CONCLUSION
The Commission MODIFIES the agency's decision and REMANDS the matter so
that the agency may pay complainant $2,445.50 in compensatory damages.
ORDER
Within 30 days of the date this decision becomes final the agency shall
pay complainant $2,445.50 in compensatory damages. Proof of payment
of the damages to complainant must be sent to the Compliance Officer as
referenced herein.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
March 16, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Section 1981a does not cap or otherwise limit damage awards for past
pecuniary losses. EEOC Notice No. N 915.002 at 8.