01972427
03-08-2000
Hiawandus Gause, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Hiawandus Gause v. Social Security Administration
01972427
March 8, 2000
Hiawandus Gause, )
Appellant, )
)
v. ) Appeal No. 01972427
) Agency No. SSA-684-94
Kenneth S. Apfel, ) EEOC No. 210-95-6177X
Commissioner, )
Social Security Administration, )
Agency. )
________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment
Opportunity Commission (EEOC or Commission) from the final agency
decision concerning her equal employment opportunity (EEO) complaint,
which alleged discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether the agency has afforded appellant the
relief to which she is entitled.
BACKGROUND
Appellant filed a formal complaint on June 13, 1994, in which she alleged
that she had been discriminated against based on race (Black) and physical
disability (bone deformity and related impairments) when she was placed
on a Performance Improvement Plan (PIP) from November 13, 1993 to January
5, 1994, and when she was terminated during her probationary period,
effective January 21, 1994. Following an investigation of her complaint,
appellant requested a hearing, which was held before an administrative
judge (AJ) on October 18 and 19, 1994, and then resumed on December 14 and
15, 1995. In a thirty-two page Recommended Decision (RD) dated July 12,
1996, the AJ found that the agency discriminated against appellant on
all bases alleged. The AJ further concluded that appellant incurred
compensatory damages and that these damages were "obvious[ly]" related
to the discrimination. The AJ recommended the following remedies:
(1) she be reinstated retroactively to the position from which she was
terminated, or a substantially equivalent position;
(2) she be given retroactively all employee benefits, rights, and
privileges, including but not limited to back pay, interest, cost of
living adjustments, overtime, and any other benefits she would have
received had there not been any discrimination;
(3) because of the passage of time [that] she be recycled through the
formal training, and the receiving office, remedial and advanced training;
(4) unless reasonable accommodation pursuant to the RA [Rehabilitation
Act] would dictate otherwise, she be placed in a unit comparable to
that where other new trainees are normally initially placed, and that
she be provided all reasonable accommodation,[sic] requested by her for
her disability, in accord with [the] RA [Rehabilitation Act] and which
is not burdensome on the Agency's operation;
(5) she be provided equal quality, degree and extent training provided
other trainees, includ[ing][Comparatives 1 and 2];
(6) she be provided sustained equal quality, degree and extent of
mentorship provided other trainees, including, [Comparatives 1 and 2]
which is constant, one-on-one, and sitting at a desk(s) next her mentor(s)
to minimize the amount of walking;
(7) all training and mentoring records for her and all other Claims
Representative trainees for the same period of time be preserved intact
for a couple years thereafter;
(7) [sic] with all [due] respect, the Agency is directed to immediately
post the NOTICE TO EMPLOYEES, made part and parcel thereof, throughout the
facility for sixty (60) days so that all its staff will be apprised; and
(8) inasmuch as the complainant is also requesting compensatory damages,
and inasmuch as I have found that the complainant was discriminated
against because of her race and/or disability, and inasmuch as I now
find that she suffered mental stress, confusion and frustration due to
the disparate treatment she was subjected to because of her disability,
and the obvious anguish she continues to suffer as a result of her
termination from employment, I recommend that she be awarded a reasonable
sum for compensatory damages.
The agency asked appellant to provide it with information concerning
her request for compensatory damages. The agency received appellant's
response on October 22, 1996. On December 27, 1996, the agency issued
a final agency decision (FAD) denying appellant's request for pecuniary
compensatory damages with respect to reimbursement for personal loans,
unincurred medical expenses, unpaid bills, Thrift Savings Plan - Matching
contributions, and future losses. In addition, the agency reduced the
amount appellant requested for job search expenses, as well as expenses
associated with the filing of an EEOC claim, and moving expenses.
Finally, the agency reduced the amount of non-pecuniary compensatory
damages awarded from the requested amount of $118,577.16 to $331.20.
It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
The Commission notes at the outset that the agency found that appellant
had been discriminated against solely on the basis of disability with
regard to the issues alleged. Appellant did not appeal the agency's
finding of no discrimination with regard to race discrimination.
Accordingly, the Commission limits its review on appeal to the issues
of relief specifically addressed by the agency in its FAD.
Section 102 (a) of the Civil Rights Act of 1991 (1991 CRA) 105 Stat. 1071,
Pub. L. No. 106-166, codified at 42 U.S.C. � 1981a, authorizes an award
of compensatory damages as part of make-whole relief for intentional
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended. Section 1981a(b)(2) indicates that compensatory
damages do not include back pay, interest on back pay, or any other
type of equitable relief authorized by Title VII. Section 1981a(b)(3)
limits the total amount of compensatory damages that may be awarded
each complaining party for future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other nonpecuniary losses, according to the number of individuals
employed by the respondent. The limit for a respondent who has more than
500 employees is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
The Commission has held that compensatory damages are recoverable in the
administrative process.<1> Thus, if a complainant has alleged that she
is entitled to compensatory damages and the agency or the Commission
enters a finding of discrimination, the complainant must be given an
opportunity to submit evidence establishing her claim. To receive an
award of compensatory damages, a complainant must demonstrate that she
has been harmed as a result of the agency's discriminatory action;
the extent, nature, and severity of the harm; and the duration or
expected duration of the harm. Rivera v. Department of the Navy, EEOC
Appeal No. 01934156 (July 22, 1994), request for reconsideration denied,
EEOC Request No. 05940927 (December 11, 1995); Compensatory Damages and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992).
"[C]ompensatory damage awards must be limited to the sums necessary
to compensate [a complainant] for actual harm, even if the harm is
intangible." Id. at 13 (citing Carter v. Duncan - Higgins, Ltd., 727
F.2d 1225 (D.C. Cir. 1984)). Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and nonpecuniary losses.
Past Pecuniary Damages
A complainant may recover past out-of-pocket expenses incurred as a
result of the intentional discrimination. EEOC Notice No. N 915.002 at
8. As noted above, the AJ found that appellant suffered mental anguish
and anxiety, which resulted in her expending monies for the following:
1. Loans
Appellant requested reimbursement of $17, 819.00 that she borrowed from
relatives to pay for living expenses during her period of unemployment.
The agency denied this claim as a compensatory damage. The agency argued
that as a successful complainant, she will be receiving back pay damages
with interest which will reimburse her for her lost salary during her
period of unemployment and enable her to pay the loans she incurred
during her period of unemployment. After a review of the record, we see
no basis to disturb the agency's denial of subsistence damages that will
be covered by her award of back pay. Therefore, this claim is denied.
2. Job Search Expenses
Appellant requested reimbursement for transportation expenses in the
amount of $417.20 that she incurred during her search for employment.
However, because appellant submitted no documentation for this claim,
the agency allowed $200.00 for this claim. Generally, the amount to be
awarded for past pecuniary losses is determined by receipts, records,
bills, canceled checks, confirmation by other individuals, or other proof
of actual losses and expenses. Damages for past pecuniary losses will not
normally be awarded without documentation. EEOC Notice No. N 915.002
at 9. Therefore, we see no basis to disturb the agency's allocation of
$200.00 for job search expenses.
3. Expenses Associated with Filing EEOC Claim
Appellant requested reimbursement of the $126.20 she spent for
transportation and lunches when visiting EEOC to pursue her charge
of discrimination. The agency denied appellant's claim for $95.00 for
lunches relying on appellant's back pay award to compensate her for her
living expenses during the period in question. However, the agency allowed
the transportation costs, despite appellant's lack of documentation for
this claim. As such, the $31.20 for transportation was allowed. We find
no reason to disturb the agency's allocation of $31.20 for transportation.
4. Medical Expenses
Appellant requested medical costs in the amount of $2,715.00 for
medical procedures she contends she was unable to have because she was
unemployed. As noted by the agency, the law provides for reimbursement
of out-of-pocket medical expenses appellant incurred that would have
been covered by her health insurance. See EEOC v. Service News Co., 898
F.2d 958 (4th Cir. 1990). The law does not provide for reimbursement
of medical procedures the employee did not have. As such, this claim
is denied.
5. Unpaid Bills
Appellant has requested $3,873.00 to pay for personal bills she was unable
to pay during her period of unemployment.<2> This claim is denied for
the reasons stated above.
6. Thrift Savings - Matching Contributions
Appellant requested that her Thrift Savings Plan (TSP) be restored to
reflect the balance she would have had if she had not been terminated.
When a discriminatory action eliminates or reduces these contributions,
make whole relief includes not only the contributions themselves, but
the interest that would have been earned but for the discriminatory
action. Fiene v. United States Postal Service, 04920009 (September 3,
1992); See also Korchnak v. United States Postal Service, EEOC Request
No. 05910483 (November 15, 1991). Therefore, we find that appellant's
TSP should be restored, with interest, from the date of her termination.
7. Moving Expenses
Appellant requested reimbursement for $150.00 in moving costs she
incurred moving from her apartment into her sister's home. She stated
that the move was necessary because after her termination she could
not afford her apartment any longer. This is an allowable expense,
however, appellant failed to provide any documentation in support of
this claim. Nevertheless, because of the relatively small amount of
the claim requested, the agency allowed $100.00 for the claim. We see
no basis to disturb this amount.
Future Pecuniary Damages
We find no basis to award future pecuniary damages. First, we note that
appellant has requested an unidentifiable amount of money as pecuniary
future losses for not being able to purchase a car, furniture, or
take vacations that she planned because she was terminated. However,
future pecuniary losses are quantifiable out-of-pocket expenses that
are likely to occur after conciliation, settlement, or the conclusion of
litigation. EEOC Notice No. N 915.002 at 9. Therefore, future losses are
not purchases appellant had to forego because she was discriminatorily
terminated. Therefore, unless appellant can provide some evidence of
losses likely to occur after resolution of this complaint, appellant is
not entitled to future pecuniary damages.
Nonpecuniary Damages
The AJ found that the evidence of record established that appellant
suffered mental stress, confusion, anguish, and frustration due to the
disparate treatment she was subjected to because of her disability, and
subsequent termination from employment. The AJ based this finding on
appellant's testimony of record. Appellant also submitted statements
that due to the discrimination she suffered humiliation, embarrassment,
loss of self-esteem, depression, loss of credit rating, and gained thirty
pounds. She also stated that she was labeled an incompetent for allegedly
not having the ability to learn the basics of the job. After being hired
by the agency, she had obtained her own apartment and lived independently.
She stated that she had to give this all up when she was terminated.
Appellant had to move into an apartment with her niece. This caused
her to lose the enjoyment of life as she knew it for she became totally
dependant on others for her support. As the agency offered nothing to
rebut this evidence, we find that appellant suffered emotional harm
as a result of her disparate treatment and termination. Accordingly,
we find that appellant is entitled to an award of nonpecuniary damages.
Having determined that appellant proved that she suffered emotional
distress causally connected to agency action, we must next determine
the amount of compensatory damages to be awarded for that harm. In
determining the amount of a compensatory damages award, we are guided
by the principle that a compensatory damages award is limited to the
sums necessary to compensate appellant for the actual harm caused by the
agency's discriminatory action and attempt to affix a reasonable dollar
value to compensate her for that portion of her emotional distress that
was caused by the agency's discrimination. EEOC Notice No. N. 915.002
at 13.
There are no definitive rules governing the amount of nonpecuniary
damages to be awarded. However, nonpecuniary damages must be limited to
the sums necessary to compensate the injured party for actual harm, even
where the harm is intangible, see Carter v. Duncan - Higgins, Ltd., 727
F.2d 1225 (D.C. Cir. 1984), and should take into account the severity of
the harm and the length of time that the injured party has suffered the
harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995); EEOC Notice No. N 915.002 at 14. The Commission notes
that for a proper award of nonpecuniary damages, the amount of the
award should not be "monstrously excessive" standing alone, should not
be the product of passion or prejudice, and should be consistent with
the amount awarded in similar cases. See Cygnar v. City of Chicago,
865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations,
Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).
We note that there have been several Commission decisions which have
awarded, nonpecuniary damages for emotional distress. In Mullins
v. United States Postal Service, EEOC Appeal No. 01954362 (May 22,
1997), the Commission ordered an award of $10,000.00 in nonpecuniary
compensatory damages where the evidence established that the complainant's
depression--which included features of pessimism, helplessness, loss
of concentration, poor memory, anxiety, tension, difficulty with trust,
paranoia, feelings of alienation, low self-esteem, isolation withdrawn
behavior, loss of initiative, resentment, and hostility--was directly
related to the emotional damage the complainant suffered in her work
environment as a result of sexual harassment and reprisal. In White
v. Department of Veterans Affairs, EEOC Appeal No. 01950342 (June 13,
1997), the Commission ordered an award of $5,000.00 in nonpecuniary
damages where the complainant's testimony and his psychologist's report
indicated that the harassment the appellant endured, which took both
sexual and nonsexual forms, led appellant to suffer from anxiety,
depression, emotional fatigue, occasional nightmares, and insomnia.
In Bever v. Department of Agriculture, EEOC Appeal No. 01953949 (October
31, 1996), the Commission ordered an award of $15,000.00 in nonpecuniary
compensatory damages where the evidence established that the complainant's
situational anxiety was directly linked to a hostile work environment,
that the complainant was required to take medication as a result thereof,
and that the complainant's symptoms included uncontrolled crying, weight
loss, and depression. In Lawrence v. United States Postal Service,
EEOC Appeal No. 01952288 (April 18, 1996), the Commission ordered
an award of $3,000.00 in nonpecuniary compensatory damages where the
complainant established that she suffered emotional distress as a result
of sexual harassment and the agency's failure to respond promptly to
her allegations.
In Rountree v. Department of Agriculture, EEOC Appeal No. 01941906 (July
7, 1995). affirmed, EEOC Request No. 05950919 (February 15, 1996), the
Commission ordered an award of $8,000.00 in nonpecuniary damages where the
complainant's statement and a psychologist's report indicated that some of
the complainant's emotional distress, including feelings of inadequacy,
failure, and depression, were the result of a discriminatory performance
appraisal and the denial of bonus pay based on that appraisal. In Benson
v. Department of Agriculture, EEOC Appeal No. 01952854 (June 27, 1996),
the Commission affirmed the agency's award of $5,000.00 in nonpecuniary
damages where the complainant, his relatives, and his colleagues offered
testimony regarding the embarrassment and humiliation that the complainant
suffered at work as a result of the denial of promotional opportunities,
a suspension, and other adverse actions.
Having carefully considered the facts of this case, the Commission
finds that appellant is entitled to nonpecuniary damages in the amount
of $4,000.00. In reaching this amount, the Commission has considered a
number of factors. For example we considered the nature and severity of
the discrimination, as well as the nature and severity of appellant's
emotional distress and related symptoms. We considered the evidence
concerning appellant's emotional distress, including the AJ's findings,
appellant's brief statements, the statements of her father and niece in
support of her claims, as well as the lack of medical documentation.
Finally, we considered the amounts awarded in similar cases. Based on
all of these considerations, we find that $4,000.00 is a proper award
for the emotional distress which appellant has suffered.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
MODIFY the agency's final decision.
ORDER
The agency is ORDERED to take the following remedial actions:
(1) Within thirty calendar (30) days of the date on which this decision
becomes final, the agency shall tender to appellant past pecuniary
compensatory damages in the amount of $231.20.
(2) Within thirty (30) calendar days of the date on which this decision
becomes final, the agency shall tender to appellant nonpecuniary
compensatory damages in the amount of $4,000.00.
(3) Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall provide appropriate payments to appellant's TSP
account commencing as of January 21, 1994. Such payments shall include
interest that his account would have earned during the relevant period.
(4) The agency is further directed to submit a report of compliance,
including proof that it has provided all the remedial relief provided for
in the AJ's recommended decision, as provided in the statement entitled,
"Implementation of the Commission's Decision." The report shall include
evidence that the corrective action has been taken.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint. 29
C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the
agency. The attorney shall submit a verified statement of fees to the
agency -- not to the Equal Employment Opportunity Commission, Office of
Federal Operations -- within thirty (30) calendar days of this decision
becoming final. The agency shall then process the claim for attorney's
fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the appellant. If
the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42
U.S.C. � 2000e-16(c) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive
this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you
receive a timely request to reconsider filed by another party. Any
argument in opposition to the request to reconsider or cross request to
reconsider MUST be submitted to the Commission and to the requesting
party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the
request to reconsider. See 29 C.F.R. � 1614.407. All requests and
arguments must bear proof of postmark and 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 filed on the date
it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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. You
should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
March 8, 2000
_________ _____________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 In Jackson v. United States Postal Service, EEOC Appeal No. 01923388
(November 12, 1992) the Commission held that Congress afforded it the
authority to award such damages in the administrative process. It based
this assessment, inter alia, on a review of the statutory provisions
of the Civil Rights Act of 1991 in relation to one another and on
principles of statutory interpretation which require statutes to be
interpreted as a whole. In particular, the Commission discussed the
meaning of the statute's definition of the term "compelling party"
and the significance of the reference to the word "action" in Section
102(a). In addition to the specific reasons set forth in Jackson for this
holding, Section 2000e 16(b)(Section 717) of the Civil Rights Act of 1964
(42 U.S.C. � 2000e et seq.)(CRA) conveyed to the Commission the broad
authority in the administrative process to enforce the nondiscrimination
provisions of subsection (a) through "appropriate remedies." Similarly,
in Section 3 of the Civil Rights Act of 1991 (CRA of 1991), Congress
refers to its first stated purpose as being "to provide appropriate
remedies for intentional discrimination and unlawful harassment in the
workplace;", thereby reaffirming that authority. Consequently, it is our
view that in 1991, Congress clearly intended to expand the scope of the
"appropriate remedies" available in the administrative process to federal
employees who are victims of discrimination. Moreover, in Section 717(c)
of the CRA, the term "final action" is used to refer to administrative
decisions by agencies or the Commission, as distinguished from the term
"civil action," used to describe the rights of employees after such
final action is taken. Therefore, the Commission reaffirms the holding
therein. See Cobey Turner v. Department of the Interior, EEOC Appeal
Nos. 01956390 and 01960518 (April 27, 1998).
2 Appellant's personal bills included Columbia House Music Club, BMG
Music, Doubleday Music Club, Book of the Month Club, Marshall Fields,
Carson, Pirie, Scott, and Amoco Merchandise Center.