01A20720
09-16-2002
Elizabeth A. Brewer, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Elizabeth A. Brewer v. Department of the Interior
01A20720
September 16, 2002
.
Elizabeth A. Brewer,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A20720
Agency No. BIA-95-002
Introduction
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her claim for compensatory damages and attorney's fees
on a complaint of unlawful 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 Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq., and the 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.
Issues Presented
The issues on appeal are whether the agency properly determined that
complainant is entitled to payment of $27,507.93 in compensatory damages
and whether the agency properly determined that complainant is not
entitled to attorney's fees, back pay, front pay, or retirement benefits.
Background
The record reveals that during the relevant time, complainant was
employed as a Secretary at the agency's Division of Trust Services,
Eastern Area Office, Bureau of Indian Affairs, Arlington, Virginia.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on October 6, 1994.
Complainant alleged that she was discriminated against on the bases
of national origin, race/color, disability, sex, age, and reprisal for
prior EEO activity when:
(1) On June 24, 1994, she was placed on emergency administrative leave
from January 27, through August 15, 1994, until a medical assessment
(Fitness for Duty Examination) was made of her ability to continue
working;
On August 15, 1994, complainant's office refused to pay for her medical
assessment;
Complainant was treated differently than co-workers with respect to
assignments; and
On September 14 and 15, 1994, she was charged Absent Without Leave
(AWOL).
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. Complainant
requested that the agency issue a final decision.
In a final decision dated January 21, 1997, the agency concluded that
complainant had been discriminated against on the bases of disability
and in reprisal for prior protected activity with respect to claims
(1) and (2). The agency ordered that complainant be reimbursed for
medical expenses incurred when she obtained the medical assessment.
She was directed to submit medical statements documenting such expenses
within thirty (30) days of receipt of the decision. Complainant was also
directed to submit documentation supporting her claim for compensatory
damages. The agency also ordered that complainant receive attorney's
fees and costs; that it post a notice of its finding of discrimination,
provide training to the responsible officials, ensure that complainant
not be subjected to further reprisal, and take any other appropriate
remedial action to ensure that this type of discrimination does not recur.
The agency found no discrimination with respect to claims 3 and 4.
Complainant appealed the agency's January 21, 1997 decision to
the Commission. Brewer v. Department of the Interior, EEOC Appeal
No. 01972835 (February 22, 2000). In a decision dated February 22,
2000, the Commission affirmed the agency's final decision and ordered
the agency to undertake the following remedial actions:
Within thirty (30) days from the date on which this decision becomes
final, the agency shall request complainant to submit medical statements
and/or bills that document expenses she incurred for the fitness for
duty examination;
The agency shall determine the appropriate amount of back pay due to
the fitness for duty examination (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 issues of compensatory damages and attorney's fees and costs
are REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant, through
counsel, shall submit a request for attorney's fees and costs in
accordance with the attorney's fees paragraph set forth below. No later
than sixty (60) days after the agency's receipt of the attorney's
fees statement and supporting affidavit, the agency shall issue a
final agency decision addressing the issues of attorney's fees, costs,
and compensatory damages. The agency shall submit a copy of the final
decision to the Compliance Officer at the address set forth below;
The agency shall post a notice in accordance with the order below; and
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.
In compliance with the Commission's order, the record reveals that on
April 12, 2000, the agency requested that complainant submit documentation
to support her claim for compensatory damages. Complainant requested
and was granted two extensions: one until July 31, 2000, and another
until August 7, 2000. On July 31, 2000, August 7, 2000, August 15, 2000,
and May 22, 2001, complainant submitted compensatory damage documentation.
Complainant submitted medical bills totaling $900.00 from three physicians
relating to the agency-ordered Fitness for Duty Examinations in 1994.
Complainant claimed $420.00 in expenses for seven sessions with the
Women's Center in August/September 1997; $1,880.00 for ten psychotherapy
sessions with D-1 in 1998; $240.00 for four March 2000 group therapy
sessions; and $3,836.00 for medication, x-rays, and surgery related to
the physical altercation with the Acting Chief and the collapse of a
portable partition on complainant.
To support her non-pecuniary damages claim, complainant submitted a
personal statement; psychiatric/medical evaluations from three physicians
[D-1, D-2, D-3]; a bill for an individual psychotherapy session from the
Women's Center; and impact statements from complainant's co-workers and
family members.
In her statement, complainant stated that the �nature of the emotional
conditions and illness for which I am claiming compensatory damages are
as follows: anxiety, depression, stress, and one form of substance abuse,
namely, alcohol.� Complainant stated that the symptoms of these emotional
conditions began in June 1994, and continue up to the present.
The agency then submitted all medical and psychiatric documentation
regarding complainant to the Department of Health and Human Services (HHS)
for a summary medical/psychiatric evaluation.<1> The HHS evaluation
was conducted by a Clinical Professor of Psychiatry of the Georgetown
University School of Medicine [D-4]. In his report, D-4 stated that
in his professional opinion, complainant did experience frustration
and stress in the workplace because of discrimination. However, he
noted that �she did not need lengthy psychiatric treatment, she did not
need hospitalization, she did not become psychotic or out of control
or dysfunctional...�
In a final decision that is the subject matter of the instant appeal,
the agency awarded complainant $27,507.93 in compensatory damages plus
interest, but denied her claim for attorney's fees. The $27,507.93
award consisted of the following determinations:
$900.00 for expenses complainant incurred for the fitness for duty
examination (past pecuniary damages);
$25,000 for non-pecuniary damages, from the period September 1994 through
early 1997;
$1,607.93 for medical and psychiatric treatment costs (pecuniary damages).
In its analysis of complainant's past medical expenses, the agency
awarded complainant $1,140.00 for six psychotherapy sessions with D-1,
$150.00 for one group therapy session with Comprehensive Addiction
Treatment Services, and $317.93 for medication to treat her psychiatric
conditions. The agency rejected complainant's claims for five sessions
with D-1, nine sessions with the Women's Center, and three sessions
with Comprehensive Addiction Treatment Services because it determined
that complainant failed to produce bills, statements, or records that
established the nexus between the discrimination and the treatment; and
The agency denied complainant's request for attorney's fees because of
insufficient documentation.
The agency ordered the payment of $27,507.93 plus interest to complainant.
Complainant filed this appeal with the Commission.<2>
On appeal, complainant contends the agency failed to include back pay,
front pay, future earnings, pension benefits, and attorney's fees
in its award. Complainant contends that the agency issued its final
decision without allowing complainant the opportunity to submit further
documentation regarding attorney's fees.
Findings and Analysis
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 $300,000.00
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).
The particulars of what relief may be awarded, and the proof necessary
to obtain that relief, are set forth in detail in Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. N-915.002 (July 14, 1992) (Compensatory Damages
Notice). Briefly stated, the complainant must submit evidence to show
that the agency's discriminatory conduct directly or proximately caused
the losses for which damages are sought. See Damiano v. United States
Postal Service, EEOC Request No. 05980311 (February 26, 1999). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part. See Compensatory Damages
Notice, at 11-12. The amount of non-pecuniary damages should also reflect
the nature and severity of the harm to complainant, and the duration or
expected duration of the harm. Id. at 14. A complainant is required to
provide evidence that will
allow an agency to assess the merits of complainant's request for
emotional distress damages. See Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993).
Past Pecuniary Damages
Pecuniary damages are available for out-of-pocket expenses shown
to be related to the discriminatory conduct. Typically these damages
include reimbursement for medical expenses, job hunting expenses, moving
expenses and other quantitative out of pocket expenses. The Commission
requires documentation in support of these expenses, typically in
the form of receipts, bills, or physician's statements. See Minardi
v. United States Postal Service, EEOC Appeal No. 01981955 (October 3,
2000); Gause v. Social Security Administration, EEOC Appeal No. 01972427
(March 8, 2000).
As past pecuniary damages, complainant requested reimbursement of $900.00
for medical expenses associated with her fitness for duty examination
and $6,376.00 for all other medical and psychotherapy expenses.
After a thorough review of the record, the Commission determines that the
agency properly calculated the medical and psychiatric costs related to
the discrimination found in claims (1) and (2) of complainant's complaint.
We determine that the record only supports a connection between claims
(1) and (2) and the medical costs with respect to six psychotherapy
sessions with D-1, one group therapy session with Comprehensive
Addiction Treatment Services, and $317.93 in psychiatric medication.
The other medical costs submitted by complainant either lack adequate
documentation or have not been proven by complainant to be related to the
discrimination found in claims (1) and (2). Specifically, we determine
that complainant's claims for the cost of treatment for injuries sustained
from an altercation with an agency official and a falling partition are
denied because these matters were not found to be discriminatory acts in
the Commission's decision. Consequently, we AFFIRM the agency's award
of $2,507.93 for past medical and psychiatric costs.
Back Pay
In Appeal No. 01972835, the Commission ordered the agency to �determine
the appropriate amount of back pay due to the fitness for duty examination
(with interest, if applicable) and other benefits due complainant.�
Although not addressed in its final decision, the agency determined in
a letter dated May 17, 2001, that since complainant was placed on paid
administrative leave from June 27 through August 15, 1994, she did not
lose any wages or benefits related to employment because of the fitness
for duty examination.
Upon review of the matter, we note that the record contains �Individual
Payroll Registers� reflecting that complainant was placed on paid
administrative leave from June 27 through August 15, 1994. Therefore,
we determine that the agency properly determined that complainant was
not entitled to back pay.
Future pecuniary damages
We note that complainant contends that she is entitled to future earnings
and retirement pension benefits as a remedy for her claims. However, a
thorough review of the record reveals that complainant failed to submit
a request or any documentation regarding retirement benefits or future
earnings to the agency. Moreover, we note that although complainant
requests such relief on appeal, she fails to submit any documentation or
calculations pinpointing the basis for her request for future pecuniary
damages. Without any documentation to validate her claim for future
pecuniary damages, we find that the agency properly determined that
complainant is not entitled to future pecuniary damages.
Non-pecuniary Damages
Complainant claims that she should receive non-pecuniary compensatory
damages and submits, letters from three physicians (D-1, D-2, D-3)
regarding the effect that the harassment had on her mental and physical
well-being. Those medical statements reflect that complainant fainted at
work on June 16, 1994, during the crux of the discrimination detailed
in claims (1) and (2). The record further reveals that complainant
sought medical and psychiatric treatment. D-1's statement concluded
that �the great deal of stress that she was undergoing at work, most
likely made her anoretic [sic], unable to eat, and may have made her
hyperventilate.� In his statement, D-3 stated that his psychiatric
evaluation of complainant persuaded him that complainant did not have
a psychiatric disorder, but reflects that �she does have frustration
with workplace conditions,� specifically, being treated in ways she
perceives to be unfair. Significantly, her primary physician noted that
complainant's �blood sugars started showing an elevation in March of 1996
and she was diagnosed with diabetes in May of 1997.� The physician's
statements corroborate complainant's assertion that the incidents in
claims (1) and (2) led to: her fainting in June 1994; sleeplessness;
depression; anxiety attacks; and substance abuse. Complainant notes the
effects of the harassment on her health in her formal complaint when
she states that the harasser's conduct makes her �sick at my stomach
and my head starts to hurt� and that these symptoms were exacerbated by
the agency's reprisal. We find that complainant has established a nexus
between the alleged harm and the discrimination suffered and therefore
is entitled to a non-pecuniary damage award.
The agency awarded $25,000.00 in non-pecuniary damages. Taking into
account the evidence of non-pecuniary damages submitted by complainant,
the Commission finds that the agency's award is proper.
With this award, we take into account the duration of the discrimination
found (over one month), the severity of the harm, as well as prior
Commission precedent. See Colwell v. United States Postal Service, EEOC
Appeal No. 01985789 (June 13, 2001)(Commission awarded $20,000.00 in
non-pecuniary damages for complainant's depression and emotional distress,
which manifested themselves in crying spells, insomnia, headaches,
anxiety attacks, constant mood swings, and low self esteem, and for which
complainant received psychological treatment; loss of credit standing and
loss of professional standing); Turner v. Department of the Interior,
EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998)(Commission
awarded $40,000.00 in non-pecuniary damages for physical pain, loss
of enjoyment of life, and loss of health sustained by complainant as a
result of harassment); Christian v. Department of Veterans Affairs, EEOC
Appeal No. 01996342 (September 7, 2001)(Commission awarded $30,000.00
for six years of sexual harassment suffered by complainant); Jackson
v. United States Postal Service, EEOC Appeal No. 01972555 (April 15,
1999)(Commission awarded $30,000.00 in non-pecuniary damages for
complainant's emotional distress during a six-month period).
Attorney's Fees
The agency denied complainant's request for attorney's fees because
complainant failed to submit a petition or statement detailing those
expenses. The record reveals that complainant submitted two checks
to attorneys made by complainant as evidence of her attorney's fees.
There is no other documentation of attorney's fees in the record.
Without a statement verifying the relation between the two checks and
the legal representation acquired to pursue her complaint, we are unable
to award complainant attorney's fees. We further note that the record
contains correspondence and documents evidencing that the agency attempted
to procure verifying documentation of attorney's fees from complainant
and her counsel, to no avail.<3> Consequently, we find that the agency
properly denied complainant attorney's fees.
Conclusion
In summary, we AFFIRM the agency's determination that complainant's
compensatory damages consist of $2,507.93 for pecuniary damages and
$25,000.00 in non-pecuniary damages, yielding a total of $27,507.93.<4>
Accordingly, we AFFIRM the agency's final decision.
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
September 16, 2002
__________________
Date
1The record reveals that the Department of
the Interior has a contract with the HHS to review medical documentation
in connection with claims for compensatory damages.
2The record reveals that the agency has complied with items (iii) and
(iv) of the Commission's ORDER in Appeal No. 01972835, which is not
disputed by complainant on appeal.
3The Commission notes that in Appeal No. 01972835, the Commission ordered
complainant's attorney to �submit a verified statement of fees to the
agency� within thirty calendar days of its February 22, 2000, decision.
The record reveals that the agency requested that complainant submit the
verified statement of fees in a letter dated April 12, 2000. The record
further reveals that the agency had not received any documentation from
complainant verifying her attorney's fees by August 30, 2001.
4The record reveals that the agency paid complainant the amount of
$29,384.75 ($27,507.93 plus interest) to complainant on December 23, 2001.