James E. Butler, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 15, 1999
01971729 (E.E.O.C. Apr. 15, 1999)

01971729

04-15-1999

James E. Butler, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


James E. Butler v. Department of Agriculture

01971729

April 15, 1999

James E. Butler, )

Appellant, )

)

v. ) Appeal No. 01971729

) Agency No. 940617

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

_______________________________________)

DECISION

INTRODUCTION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning his 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 Age Discrimination in Employment

Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The appeal is

accepted by the Commission in accordance with the provisions of EEOC

Order No. 960.001.

ISSUE PRESENTED

The issue presented is whether the agency properly calculated the amount

of compensatory damages to which appellant is entitled.

BACKGROUND

Appellant filed an EEO complaint alleging that the agency discriminated

against him on the bases of race, sex, and age with regard to promotion

actions. On August 11, 1994, appellant and the agency entered into

a "Resolution Agreement" (RA) in settlement of the complaint. The RA

provided, in relevant part, that the agency would pay appellant's proven

compensatory damages up to $25,000. On November 8, 1996, the agency

issued a final agency decision (FAD) awarding appellant $2,049 in past

pecuniary damages and $7,500 in non-pecuniary damages, a total of $9,549.

It is from this decision that appellant now appeals.

ANALYSIS AND FINDINGS

A. Legal Standards for an Award of Compensatory Damages

Pursuant to section 102(a) of the Civil Rights Act of 1991, a

complainant who establishes his or 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 (e.g., pain and suffering, mental anguish).

42 U.S. C. �1981a(b)(3). For an employer with more than 500 employees,

such as the agency, the limit of liability for future pecuniary and

non-pecuniary damages is $300,000. Id.

The particulars of what relief may be awarded, and what proof is necessary

to obtain that relief, are set forth in detail in EEOC Notice No. N

915.002, Compensatory and Punitive Damages Available Under Section 102

of the Civil Rights Act of 1991 (July 14, 1992). 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. Id. at 11-12, 14; Rivera v. Dept. of the Navy, EEOC Appeal

No. 01934157 (July 22, 1994). The amount awarded should reflect the

extent to which the agency's discriminatory action directly or proximately

caused harm to the complainant and the extent to which other factors may

have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of

non-pecuniary damages should also reflect the nature and severity of

the harm to the complainant, and the duration or expected duration of

the harm. Id. at 14.

In Carle v. Dept. of the Navy, the Commission explained that "objective

evidence" of non-pecuniary damages could include a statement by the

complainant explaining how he or she was affected by the discrimination.

EEOC Appeal No. 01922369 (January 5, 1993). Statements from others,

including family members, friends, and health care providers could

address the outward manifestations of the impact of the discrimination

on the complainant. Id. The complainant could also submit documentation

of medical or psychiatric treatment related to the effects of the

discrimination. Id.

As will be discussed further below, the record reflects that appellant's

conditions were not caused by the alleged discrimination,<1> but were

affected by it. The Commission applies the principle that "a tortfeasor

takes its victims as it finds them." Wallis v. U.S. Postal Service,

EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson

v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)).

The Commission also applies two exceptions to this general rule.

First, when a complainant has a pre-existing condition, the agency

is liable only for the additional harm or aggravation caused by the

discrimination. Second, if the complainant's pre-existing 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 being 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)); Finlay v. U.S. Postal Service, EEOC Appeal No. 01942985

(April 29, 1997). The Commission notes, however, that a complainant

is entitled to recover damages only for injury, or additional injury,

caused by the agency's discriminatory actions. Terrell v. Dept. of

Housing and Urban Development, EEOC Appeal No. 01961030 (October 25,

1996); EEOC Notice No. N 915.002 at 12.

B. Appellant's Evidence of Causation

(1) Appellant's Affidavit

Appellant, in both his affidavit and in other documents submitted

in connection with this case, described the nature of the alleged

discrimination and its effects on him in the most general terms.

Appellant stated that the alleged discriminating officials (ADOs) created

"an abusive and disparate work environment so severe as to cause injury

to my quality of life." Appellant further stated:

As a direct and proximate result of the aforementioned wrongful conduct,

I have suffered economic harm and have suffered anxiety, worry, mental

and emotional distress, and other incidental damages and out-of-pocket

expenses, causing me to suffer general and specific damages.

The outrageous acts and omissions of the aforementioned persons, each of

them, have caused me to incur general damages, including the infliction

of mental and emotional anguish, distress and suffering, which caused

me to become ill, nervous and upset to the detriment of my general and

specific health.

(2) Medical Note From Dr. SS

Appellant submitted an August 26, 1994, note from Dr. SS, a

Board-certified dermatologist. Dr. SS diagnosed appellant as having

rosacea, a skin condition which manifests itself as a red rash on

the face. Dr. SS stated that the cause of this condition is unknown,

but that stress is known to aggravate it. Regarding the relationship

of the alleged discrimination to appellant's condition, Dr. SS stated

that it is "probable that [appellant's] work stress is playing a role

in the persistence of this process."

(3) Medical Note From Dr. KS

Appellant submitted an August 24, 1994, note from Dr. KS, a

Board-certified internist with a sub-specialty in gastroenterology.

Dr. KS diagnosed appellant as having abdominal pain, duodenal ulcer, and

esophagitis. Regarding the relationship of the alleged discrimination to

appellant's condition, Dr. KS stated, "Sometimes abdominal symptoms can

get worse and the physical problems can increase due to stress at work."

(4) Additional Evidence

Appellant submitted documentation reflecting that he obtained professional

services and purchased prescription medications costing a total of $7,722,

of which he paid co-payments totaling $2,049. Appellant requested

reimbursement for the amount of the co-payments.

C. Calculation of Damages Payable

1. Past Pecuniary Damages

Appellant submitted documentation to show that he paid a total of

$2,049 in co-payments for professional services (office visits) and

prescription medicines. The agency does not dispute that these expenses

were incurred on account of the effects of the alleged discrimination,

and awarded appellant $2,049 in past pecuniary damages. The Commission

finds no basis to disturb this portion of the award.<2>

2. Future Pecuniary Damages

Appellant requested $14,400 for future treatment of his pre-existing

conditions. The agency awarded no future pecuniary damages. The

agency noted that the bills submitted by appellant ended in June 1994.

The agency further stated that, because appellant's complaint had been

resolved, he should not be experiencing further stress on account of the

alleged discrimination. The record reflects that, in accordance with the

resolution agreement, appellant was required to retire from the agency

no later than November 3, 1994. The Commission notes that appellant

submitted on appeal more recent medical bills than those he submitted to

the agency. These bills contain no reportage linking the expenses to

the aggravation of appellant's pre-existing conditions by the agency's

alleged discriminatory activity. While it does not follow of necessity

that the effects of the alleged discrimination ceased upon either the

resolution of appellant's complaint or his departure from the workplace,

the Commission finds that the evidence submitted by appellant does not

establish the need for continuing treatment related to the effects of the

alleged discrimination, or the extent of such treatment, and so provides

an insufficient basis upon which to award future pecuniary damages.

3. Non-Pecuniary Damages

Appellant has requested up to $22,951 in non-pecuniary damages, the

difference between the limit agreed to in the RA and the amount awarded

as pecuniary damages. There are no "hard and fast" rules governing the

amount to be awarded. However, non-pecuniary 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-Hogans, Ltd., 727

F.2d 1225 (D.C. Cir. 1994), and should take into account the severity of

the harm and the length of time that the injured party has suffered from

the harm. Carpenter v. Dept. 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 non-pecuniary 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); US EEOC v. AIC Security Investigations,

Ltd., 823 F.Supp. 573, 574 (N.D. Ill. 1993).

Several Commission decisions have awarded compensatory damages in

cases somewhat similar to appellant's. Benson v. Dept. of Agriculture,

EEOC Appeal No. 01952854 (June 27, 1996) ($5,000 nonpecuniary damages

where appellant was denied promotional opportunities on the bases of

race and reprisal, and consequently experienced stress, skin rashes,

withdrawal, and isolation); Lawrence v. U.S. Postal Service, EEOC Appeal

No. 01952288 (April 18, 1996) ($3,000 in nonpecuniary damages for sexual

harassment where appellant presented primarily nonmedical evidence that

she was irritable, experienced anxiety attacks, and was shunned by her

co-workers); Rountree v. Dept. of Agriculture, EEOC Appeal No. 01941906

(July 7, 1995) ($8,000 in nonpecuniary damages where appellant received

a low performance appraisal and was denied bonus pay because of race and

reprisal; medical evidence testimony was provided regarding appellant's

emotional distress, but the majority of appellant's emotional problems

were caused by factors other than the discrimination).

The agency awarded appellant $7,500 in non-pecuniary damages. Taking into

account the evidence of non-pecuniary damages submitted by appellant,

the Commission finds no basis to disturb this portion of the award.

D. Other Relief

On appeal, appellant alleges that the agency has failed to perform, or

has performed incompletely, other provisions of the resolution agreement.

Appellant is advised that if he believes the agency is in breach of the

resolution agreement, he must notify the agency in writing of this belief.

The Commission's regulations provide that such notification must be made

with 30 days of the date on which the breach is alleged to have occurred.

29 C.F.R. �1614.504(a). However, if appellant provides the agency with

such notification within 15 days of the date on which he receives this

decision, the date on which the appeal was filed (December 17, 1996) will

be deemed the date on which breach was alleged for purposes of determining

whether appellant raised his breach allegation in a timely fashion.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the final agency decision finding that appellant is entitled to

$9,049 in compensatory damages.

ORDER

If it has not already done so, within fifteen (15) days of the date on

which this decision becomes final the agency shall tender to appellant

compensatory damages in the amount of $9,549. Proof of payment must be

sent to the Compliance Officer, as referenced below, even if the agency

has already tendered payment.

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

appellant. If the agency does not comply with the Commission's order,

appellant may petition the Commission for enforcement of the order.

29 C.F.R. �1614.503 (a). 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, 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 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 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. �l6l4.604(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. 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 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:

April 15, 1999

DATE Frances M. Hart

Executive Officer

Executive Secretariat

1The Commission notes that because appellant's complaint was settled,

there was no finding of discrimination; neither did the agency admit

discrimination in the Resolution Agreement..

2The Commission notes that appellant's medical expenses were borne,

in part, by his health insurer, but that appellant has not argued for

application of the collateral source rule in this case. See Young

v. Social Security Administration, EEOC Appeal No. 01955120 (January

30, 1998); cf. Wallis v. U.S. Postal Service, EEOC Appeal No. 01950510

(November 13, 1995).