Elizabeth A. Brewer, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionSep 16, 2002
01A20720 (E.E.O.C. Sep. 16, 2002)

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.