01A10328
08-27-2002
Carmillia Grimes, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Carmillia Grimes v. Department of the Navy
01A10328
August 27, 2002
.
Carmillia Grimes,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A10328
Agency No. 9532858001
Hearing No. 100-98-7561x
DECISION
Carmilla Grimes (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her entitlement to compensatory damages
incurred as a result of the agency's unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final order.
On June 7, 2000, an EEOC Administrative Judge (AJ) issued a
decision without a hearing, finding that complainant was subjected
to discrimination on the basis of disability (multiple sclerosis and
cerebral artery disease) when it placed her on Leave Without Pay (LWOP)
and did not allow her to return to work because of its perception that
she could not perform the duties of her position. The AJ further found
that the agency's actions in placing complainant on LWOP and not allowing
her to return to work without attempting to reasonably accommodate her
disability was discriminatory. The AJ then concluded that complainant
failed to provide any evidence that she was subjected to race, color,
age or reprisal discrimination and that complainant failed to establish
that she was subjected to harassment.
The AJ held a hearing on the issue of compensatory damages and
concluded that complainant was entitled to pecuniary damages in the
amount of $1,280.18 and non-pecuniary damages in the amount of $8,000.
In so finding, the AJ noted that the agency's discriminatory actions
aggravated complainant's pre-existing condition of depression and she
was subsequently hospitalized for two days. The AJ further concluded
that complainant's damages were limited by the fact that her condition
was influenced by factors unattributable to the agency's discrimination,
as well as the fact that complainant's testimony regarding damages was
not credible. The AJ also noted that complainant's doctor's testimony
regarding the cause of complainant's depression was discredited.
The agency's final decision implemented the AJ's decision in full.
On appeal, complainant notes that she is not appealing the AJ's decision
on the merits of her complaint, but only the compensatory damages portion
of the AJ's decision. Complainant argues that the AJ's damages award
is not supported by substantial evidence. In so arguing, complainant
contends that the AJ's conclusion that certain factors limited the
amount of the award was erroneous. Specifically, complainant argues
that in awarding only $8,000 in non-pecuniary damages, the AJ ignored
the overwhelming evidence that complainant's aggravated depression was
far worse than the AJ concluded and that complainant also suffered from
mental anguish, weight gain, and loss of enjoyment of life due to the
agency's discriminatory actions. Complainant notes that the AJ failed
to provide any citation to the record in support of her conclusion
that complainant's testimony was not credible. Complainant also argues
that the AJ's conclusion that complainant's condition was influenced by
factors other than the agency's discrimination was erroneous. Finally,
complainant contends that the AJ's non-pecuniary damages award is not
consistent with awards in similar cases and that the AJ's denial of
future pecuniary damages was erroneous.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Furthermore, pursuant to section 102(a) of the Civil Rights Act of 1991,
a complainant who establishes her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out-of-pocket expenses)
and non-pecuniary losses (i.e., pain and suffering, mental anguish).
42 U.S.C. � 1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id. The Supreme Court has confirmed
that the Commission possesses the legal authority to require federal
agencies to pay compensatory damages. See West v. Gibson, 527 U.S. 212
(1999).
After a careful review of the record, we find that the AJ's decision
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. Because the AJ's factual findings in regard to
the extent of damages suffered by complainant due to the agency's
discrimination are supported by substantial evidence, we discern no
basis on which to alter the AJ's decision.
The AJ, after hearing testimony from complainant, three of her family
members, and one of her doctors, concluded that complainant established
that her depression was aggravated by the agency's discriminatory actions.
In so doing, she found credible the testimony of complainant's family
members, but noted that complainant's testimony and written submissions
included inconsistencies. The AJ determined that complainant's
testimony was therefore not credible. Furthermore, the AJ noted that
although complainant's doctor (MD) testified that complainant's severe
major depression was caused by the agency's discriminatory action,
this determination was based on false information provided to MD by
complainant. Specifically, the AJ noted that complainant told MD that,
prior to the agency's discriminatory action in April 1995, complainant
had not suffered from depression. As the record established that
complainant was diagnosed with depression prior to the discriminatory
actions of the agency, the AJ gave little weight to the MD's testimony.
The AJ concluded that although complainant's depression was aggravated
by the agency's discriminatory action, much of complainant's emotional
distress was caused by factors not found to be discriminatory, such as
the financial hardship she was facing after she retired on disability,
and her physical illnesses.
On appeal, complainant argues that the AJ's finding that complainant's
testimony was not credible is not supported by substantial evidence.
We disagree. Although the AJ did not specifically list the inconsistencies
which led her to the conclusion that complainant did not testify credibly
as to the damages she suffered, the record supports her finding.
It is clear from the AJ's decision that the AJ believed complainant
misrepresented her history of depression when talking with MD, leading
MD to determine and then testify that complainant's severe depression
was caused by the agency's discriminatory acts, despite the fact that
complainant suffered from depression prior to the agency's discriminatory
actions. The transcript reveals that the AJ was concerned about this
inconsistency and that she questioned MD on this point. Even if the
agency is correct that this is the only inconsistency in complainant's
testimony, it is an important one and is sufficient to support the AJ's
finding that complainant's testimony was not credible.
Similarly, the AJ's finding that complainant's depression was influenced
by factors other than the discriminatory action is supported by
substantial evidence. Complainant herself testified that she was having
severe financial difficulties due to the minimal amount of money she was
receiving after accepting disability retirement on or around June 1995 and
that this furthered her depression and other mental anguish. Her brother,
sister and daughter testified that complainant's emotional distress was
furthered by the fact that she was no longer employed. Paradoxically,
as there has been no finding that complainant's alleged forced retirement
was discriminatory, this testimony provides substantial evidence for the
AJ's conclusion that complainant's depression was influenced by factors
not attributable to the agency's discriminatory actions. <1>
Finally, although complainant is correct that the AJ found that MD's
testimony as to the cause of complainant's depression was discredited,
and did not make a similar finding as to MD's testimony regarding
the symptoms of that depression, this is irrelevant. The AJ's finding
that $8,000 provides the appropriate compensation for complainant's
emotional distress is not based on a finding that complainant's
depression was not severe. Rather, it is based on the findings that
the agency's discriminatory actions did not cause, but only aggravated,
that depression and that other factors, not related to discrimination,
contributed to complainant's depression. As noted above, these findings
are supported by substantial evidence.
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. The existence, nature, and severity
of emotional harm must be proved. See Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. N-915.002 (July 14, 1992) at 11. Emotional harm may manifest itself,
for example, as sleepiness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self esteem, excessive fatigue,
or a nervous breakdown. Id. A proper award should take into account
the severity of the harm and the length of time that the injured party
suffered the harm. See Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995). Finally, 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 Jackson v. United States Postal Service,
EEOC Appeal No. 01972555 (April 15, 1999), citing Cygnar v. City of
Chicago, 865 F. 2d 827, 848 (7th Cir. 1989).
Here, the AJ determined that complainant is entitled to $8,000 in
non-pecuniary damages. This award is consistent with amounts awarded in
similar cases. See, e.g., Rountree v. Department of Agriculture, EEOC
Appeal No. 01941906 (July 7, 1995) ($8,000 in non-pecuniary damages where
the complainant's statement and a psychologist's report indicated that
a portion of complainant's emotional distress over a 12-month period,
including feelings of inadequacy, failure and depression, were the
result of the agency's discriminatory actions); Butler v. Department
of Agriculture, EEOC Appeal No. 01971729 (April 15, 1999) ($7,500 in
non-pecuniary damages where complainant's health conditions were not
caused by agency's actions but were affected by it). Furthermore,
we note that where a complainant has a pre-existing condition, the
agency is only liable for the additional harm or aggravation caused by
the discrimination. See Wallis v. United States Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995).
Complainant's reliance on cases in which individuals were awarded larger
non-pecuniary damage awards is misplaced. Given the AJ's findings that
complainant's pre-existing depression was only aggravated by the agency's
actions and that her emotional condition was influenced by factors other
than discrimination, findings that are supported by substantial evidence,
we discern no reason to disturb the AJ's conclusion that $8,000 is an
appropriate non-pecuniary damages award.
Although complainant argued that the AJ's determination that she was not
entitled to future pecuniary damages was erroneous, we discern no reason
to disturb the AJ's finding, as it is supported by substantial evidence.
The AJ determined that complainant provided no evidence to establish a
causal connection between her future medical expenses and the agency's
discriminatory action, but for the discredited testimony of MD. The AJ
found that the record established that complainant was using depression
medication and attending psychotherapy prior to the agency's actions.
Complainant offered nothing on appeal to justify disturbing these
findings. Complainant did not appeal the AJ's award of past pecuniary
damages.
Accordingly, after a careful review of the record, including complainant's
statement on appeal and arguments and evidence not specifically discussed
in this decision, we AFFIRM the agency's final decision.
ORDER
The agency is ordered to take the following remedial actions, if it has
not already done so pursuant to the AJ's order:
1. Within thirty (30) calendar days of the date this decision becomes
final, pay complainant $1,280.18 in pecuniary damages and $8,000.00 in
non-pecuniary damages;
2. Pay attorney's fees totaling $27,815.45;
3. Provide EEO training for its managers and supervisors with respect
to eliminating discrimination in the workplace, with a special emphasis
on prevention and elimination of disability discrimination;
4. Ensure that no retaliatory action is taken against complainant for
having filed this EEO complaint.
Post the attached notice; and
Determine the appropriate amount of back pay (with interest, if
applicable) and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The complainant 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 complainant for the undisputed
amount within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The complainant 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 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 complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Communications Security Material
System, Washington, D.C. facility 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.
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
August 27, 2002
Date
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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. has occurred
at the Department of the Navy, Communications Security Material System,
Washington, D.C. facility (�facility�).
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 DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have violated the Rehabilitation Act
when failed to provide an employee with a reasonable accommodation.
The agency was ordered to: (1) pay the employee $1,280.18 in pecuniary
damages and $8,000.00 in non-pecuniary damages; (2) pay the employee's
attorney's fees and costs; (3) provide the employee with back pay
and other benefits to which she would have been entitled absent the
agency's discriminatory acts; (4) provide EEO training for the managers
and supervisors at the facility, with a special emphasis on preventing
and eliminating disability discrimination; (5) ensure that no retaliatory
actions are taken against the employee; and (6) post this notice.
The facility 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 16141 Although complainant argued that her lack of
employment and related financial difficulties were caused by the
agency's discrimination because she was forced to take disability
retirement when she was denied an accommodation, there has been no
finding that the agency discriminated against complainant when she was
offered and accepted disability retirement. Furthermore, the AJ noted
that she asked complainant during a pre-hearing conference whether she
was claiming constructive discharge and that complainant said that she
was not. The AJ's subsequent finding of discrimination did not include
a finding that complainant was discriminated against due to constructive
discharge or forced disability retirement. Indeed, the AJ specifically
stated during the hearing on compensatory damages that the allegation
that complainant was forced to apply for disability retirement was not
an accepted allegation of the complaint. If complainant disagreed with
this determination and wanted to raise an allegation of forced disability
retirement, she had the opportunity to appeal the AJ's finding on the
merits. She did not do so, specifically noting in her appeal statement
that she was not appealing the AJ's determination on the merits.