0120130887
05-31-2013
Durrell M. Williams, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Durrell M. Williams,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120130887
Agency No. 4H-350-0008-07
DECISION
Complainant timely filed an appeal from the Agency's final decision on the issue of compensatory damages, concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision on compensatory damages.
ISSUE PRESENTED
The issue presented is whether the Agency properly determined that Complainant was entitled to non-pecuniary compensatory damages in the amount of $30,000.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at the Agency's Prichard Postal Station in Mobile, Alabama as a Part Time Flexible (PTF) City Carrier. On February 9, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when he was terminated from employment on October 24, 2006, during his probationary period.
In our December 22, 2010, consolidated decision, Darrell K. Payne and Durrell M. Williams v. U.S. Postal Service, EEOC Appeal Nos. 0120082497 and 0120082510,1 we found that Complainant established that the Agency's reasons for his termination were pretext for discrimination based on race and sex. We reversed the Agency's final order adopting the AJ's decision finding no discrimination and ordered the Agency to conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages. At the conclusion of the supplemental investigation, the Agency issued a final decision on damages on November 27, 2012.
In its decision, the Agency awarded Complainant $30,000 in non-pecuniary compensatory damages, but also found no award of pecuniary damages was appropriate. With respect to the non-pecuniary damage award, the Agency noted that Complainant submitted a two-page progress note from a physiatrist at the Mobile Veterans Affairs (VA) Outpatient Clinic dated January 6, 2011. The Agency noted that Complainant also submitted a letter from a VA psychologist with a Ph.D. on October 19, 2012, discussing his conditions. The Agency noted that Complainant had doctor visits for depression since 2005, but had been seen more on a regular basis for his depression in 2008. The Agency noted that Complainant only began to see the physiatrist in July of 2010, which was three years and nine months after his termination. The Agency noted that Complainant told the physiatrist that he had been suffering from poor sleep and stress. The Agency noted that Complainant had suicidal thoughts, but that having his two children to care for motivated him to keep going. The Agency further noted that the physiatrist found that Complainant had experienced a significant worsening of his depression, which she attributed to Complainant's termination. The Agency noted that Complainant had not been successful at vocational rehabilitation with the VA or at attending college since his termination. The Agency noted that Complainant had been prescribed four medications for depression and anxiety, but it was not clear how long Complainant had been taking them. The Agency noted that in Complainant's original PS Form 2569-C, prepared five months after his termination, he noted that that he sought medical treatment, but was not taking any medications. The Agency noted that although the physiatrist claimed that Complainant had been homeless until November 2010, there was no evidence to support this claim.
The Agency found that the quality of medical evidence contained in the record was poor and not timely. The Agency found that the medical evidence submitted by Complainant did not differentiate between the effects of his preexisting depression and any exacerbation caused by the discriminatory act. The Agency noted that Complainant failed to present, among other things, first-hand testimony of his medical condition, family situation, living arrangements, and efforts to obtain employment. The Agency noted that Complainant failed to submit testimony from his family and friends. The Agency found no persuasive evidence that all his symptoms evaluated in 2010 and 2011 were the result of his termination in 2006. The Agency found no evidence in the record that Complainant's family relationships were significantly impacted due to the discrimination. The Agency also noted there was a significant gap between his discriminatory termination and the medical evidence he submitted. The Agency therefore found that Complainant was entitled to $30,000 in non-pecuniary compensatory damages. In awarding $30,000, the Agency cited to cases, including Christman v. Dep't of Veterans' Affairs, EEOC Appeal No. 07A50006 (Mar. 18, 2005). In Christman, the complainant alleged that she had been homeless, placed on food stamps, and diagnosed with depression because of the discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant requests $300,000 in compensatory damages. The Agency did not reply to the appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
� 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Pecuniary Damages
Pecuniary losses are out-of-pocket expenses that are incurred as a result of the employer's unlawful action. Typically, these damages include reimbursement for medical expenses, job-hunting expenses, moving expenses, and other quantifiable out-of-pocket expenses. EEOC Enforcement Guidance on 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). Past pecuniary losses are losses incurred prior to the resolution of a complaint. 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, such objective evidence should include documentation of 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. Here, Complainant has not presented any evidence concerning an entitlement to pecuniary compensatory damages. Therefore, we will not award Complainant pecuniary damages herein.
Non-pecuniary Damages
Non-pecuniary losses are losses that are not subject to precise quantification, i.e., 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. See EEOC Notice No. 915.302 at 10 (May 14, 1992). 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. See Loving v. Pep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Pep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999).
Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr 18, 1996) (citing Carle v. Pep't of the Navy, EEOC, Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from 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 non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id.
Statements from others including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. Complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id.
In the instant case, on January 6, 2011, Complainant's physiatrist noted that Complainant was being treated for major recurrent depressive disorder. Complainant's physiatrist noted that Complainant was seen once in 2005, but had been seen more regularly since 2008. Complainant's physiatrist noted:
Patient lost his job at the Post Office, resulting in a severe depression, which subsequently contributed to the patient losing his home and becoming homeless with he [sic] and his 2 kids. The patient now is able to afford adequate housing due to his disability. The patient was homeless until November of 2010.
Supplemental Report of Investigation (Supp. ROI), Aff. A, at 9.
The physiatrist further noted that Complainant expressed frustration over loss of his job, and was finally able to afford some basic housing from his disability check. The physiatrist noted that Complainant complained of poor sleep, stress, and experienced suicidal thoughts of wishing he was dead. The physiatrist noted that Complainant has severe difficulty related to stress as well as attention and concentration issues related to his depression, which has hampered his ability to work and attend college. The physiatrist noted:
[I]t is felt that patient's more severe depression resulting in patient's homelessness, inability to work etc. were significantly exacerbated and caused by the situation of unlawful termination at the Post Office.
Id. at 10.
The physiatrist also noted that Complainant has been treated with multiple psychiatric medications, and is severely disabled from depression. The physiatrist noted that the termination aggravated and worsened Complainant's depression, and that Complainant "has limited ability to work or participate in life with a tendency to isolate himself." Id. at 11.
Complainant's psychologist in a letter dated October 19, 2012, noted that Complainant complained of symptoms of chronic insomnia, difficulty, irritability, anger, and vague suicidal ideations. Id. at 12. The psychologist noted that Complainant had been homeless and was a single parent trying to raise two children. The psychologist noted that Complainant's marital status had worsened, and he was on a downward spiral into a deeper depression. The psychologist noted that the "termination appeared to have aggravated and precipitated a significantly worsening in his depression to the moderate to severe range . . ." Id. The psychologist also noted that Complainant "struggles with his activities of daily living and providing adequate care for his children." Id. The psychologist found that Complainant has major recurrent depressive disorder that was exacerbated by his termination.
The Commission applies the principle that "a tortfeasor takes its victims as it finds them." See Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510 (Nov. 13, 1995) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However, the Commission also applies two exceptions to this general rule. First, when a complainant has a preexisting condition, the agency is liable only for the additional harm or aggravation caused by the discrimination. Second, if the complainant's preexisting condition inevitably would have worsened, the agency is entitled to a reduction in damages reflecting the extent to which the condition would have worsened even absent the discrimination; the burden of proof is on the Agency to establish the extent of this entitlement. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)).
In the instant case, while Complainant suffered from depression prior to his termination, Complainant's physiatrist and psychologist opined that the discrimination he suffered significantly worsened his depressive disorder. As noted above, Complainant, among other things, experienced poor sleep, stress, suicidal thoughts, and had trouble maintaining gainful employment. Complainant had also been prescribed psychiatric medication. We also note that Complainant's physiatrist opinioned that the termination contributed to the Complainant losing his home and becoming homeless with his two children, a thirteen-year-old son and an eight-year old daughter.
Taking into account the evidence of non-pecuniary damages submitted by Complainant, we find the Agency's award of non-pecuniary, compensatory damages in the amount of $30,000 to be inadequate. We note that damage awards for emotional harm are difficult to determine, and there are no definitive rules governing the amount to be awarded in given cases. As noted above, a non-pecuniary damage award must be consistent with awards made in similar cases.
Based on the above, we find that an award of $175,000 is warranted in this case. Our award takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See, e.g., McCormick v. Dep't of Justice, EEOC Appeal No. 0720100040 (Nov. 23, 2011) ($200,000 in non-pecuniary damages awarded where discriminatory conduct led to a loss of enjoyment of life that imperiled her marriage and hindered her ability to care for her young child); Padilla v. U.S. Postal Serv., EEOC Appeal No. 0120090062 (Sep. 21, 2010) ($165,000 in non-pecuniary damages awarded where complainant suffered emotional suffering, slept in his car, did not have any food, and lost custody of his daughter); Mack v. Dep't of Veterans Affairs, EEOC Appeal No. 01983217 (June 23, 2000) ($185,000 in non-pecuniary damages where complainant lost custody of his daughter and was stripped of all his worldly goods, including his home, which resulted in his being twice beaten and robbed, succumbing to the lure of illegal drugs and having increased depression and worsened emphysema requiring multiple medications); Kloock v. U.S. Postal Serv., EEOC Appeal No. 01A31159 (Feb. 5, 2004) ($150,000 in non-pecuniary damages where discriminatory removal resulted in depression, social withdrawal, weight gain, anxiety, sleeplessness, feelings of hopelessness, anger, paranoia, victimization, humiliation, constant fear of unjustified job loss, loss of self-esteem, severe financial strain, loss of his home and future home, added physical pain associated with his herniated disc, seriously deteriorated relationship with son and loss of hockey coach career).
Further, notwithstanding the Agency's assertions to the contrary, we find do not find that the medical documentation submitted by Complainant was insufficient. Complainant submitted a report from a VA licensed psychiatrist who is medical doctor specializing in the diagnosis of emotional and mental disorders. Complainant also submitted a letter from a VA licensed clinical psychologist that explained his mental suffering. We also note that the Agency cited to Christman, EEOC Appeal No. 07A50006, a case where the complainant had been homeless, placed on food stamps, and diagnosed with depression. However, in Christman, we noted that Complainant failed to present medical evidence to support her claim. As such, we find Christman inapposite to the case at bar. Accordingly, based upon awards in similar cases, we find that an award of $175,000 is proper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's decision and remand this case to the Agency to take remedial action in accordance with the Order below.
ORDER
Within 30 days of the date this decision becomes final, the Agency shall pay Complainant $175,000 in non-pecuniary compensatory damages.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 31, 2013
Date
1 The Agency's request for reconsideration was denied in Request Nos. 0520110280, 0520110550 (September 6, 2012).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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