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).