01A34585
07-27-2004
Joan A. Thibault, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joan A. Thibault v. United States Postal Service
01A34585
July 27, 2004
.
Joan A. Thibault,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34585
Agency No. 4-H-335-0214-97
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) dated January 21, 2003. In its FAD, the agency awarded $10,000.00
in non-pecuniary compensatory damages, $2,882.50 for past pecuniary
damages, and denied a claim for future pecuniary damages, following
a decision by the Commission finding that the agency had engaged in
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., when on May 1, 1997 she was removed from her detail assignment
as a Producer of the Suncoast Satellite Network. See Joan A. Thibault
v. United States Postal Service, EEOC Appeal No. 01A05782 (August 12,
2002) Request for Reconsideration Denied, Jan. 13, 2003. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission MODIFIES the agency's final decision.
BACKGROUND
In our prior decision, we ordered the agency, inter alia, to conduct
a supplemental investigation and subsequently issue a FAD addressing
compensatory damages and other relief. In its FAD the agency denied
complainant's claim for future pecuniary losses on the grounds that
complainant presented insufficient objective evidence to support
an award for future pecuniary damages. Regarding past pecuniary
damages, the agency denied complainant's claim for $103,506.00 for lost
retirement benefits due to her early retirement in 2002, finding that
such lost benefits were not causally related to the underlying claim of
discrimination at issue. Claims for $377.00 and $445.00 for medical
expenses were denied, on the grounds that the former amount was not
shown to be related to the claim at issue, and the latter amount was not
verified by an authentic receipt or record. Instead of the $3,662.00
claimed in medical expenses, the agency awarded $2,882.50. The agency
noted that complainant's claim for lost benefits and reimbursement
for sick leave and leave without pay would be addressed in a separate
decision. Accordingly, this decision shall not address these issues.
Finally, regarding non-pecuniary compensatory damages, the agency
denied complainant's claim for $115,000.00 and awarded $10,000.00.
The agency observed that complainant incurred stress, depression,
lack of concentration, nervousness, excessive sleeping, weight gain,
anxiety, heart palpitations, back pain, anger, ulcers, feelings of being
victimized, bitterness, anger, confusion, distrust, and paranoia, but
that she was not hospitalized or confined to bed and that she attributed
much of the stress to events that pre-dated the discriminatory actions
at issue. The agency noted that the discriminatory incident occurred
in May 1997, but that complainant's psychologist (DR) referred to a
pre-existing mental condition beginning in 1989. The agency further
noted that DR attributed some of the stress to an extra-marital affair,
changes in career, and dissatisfaction with a subsequent position,
in addition to the discriminatory incident at issue.
On appeal, complainant argues that the agency's award fails to adequately
compensate her for her injuries. She maintains that the agency officials
who authored the FAD are beholden to the discriminating management
official who appointed them to their current positions. Complainant also
maintains that the agency erroneously justifies the FAD and the damages
award by citing cases that are �40-50 years old.� Finally, complainant
argues that she is entitled to future pecuniary losses because �I have
a limited future based on the emotional damage and lack of success in
my chosen career path� and that the agency �has taken away any future
income I may have had.� The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Non-Pecuniary Compensatory Damages
Complainant has requested non-pecuniary compensatory damages in the amount
of $115,000.00. 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 (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 $300,000.00 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. Department 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. Department 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.
The Commission applies the principle that "a tortfeasor takes its
victims as it finds them." Wallis v. United States Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy
Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However, 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 is 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. United
States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997).
The Commission notes, therefore, that complainant is entitled to
recover damages only for injury, or additional injury, caused by the
discrimination. Terrell v. Department of Housing and Urban Development,
EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002
at 12.
In considering the appropriate award in this case, we find the agency's
award of $10,000.00 insufficient to adequately compensate complainant
for her pain and suffering. We note that, contrary to what the FAD says,
complainant does not attribute �most of this stress to events pre-dating�
the agency's discriminatory act. See FAD, p. 6. While the record does
show that complainant has been seeking psychological treatment since
1989, both DR and complainant clearly attribute most of complainant's
current symptoms to the agency's discriminatory act in May 1997.
Complainant has presented a letter dated March 14, 2003, from DR, a
Clinical Psychologist who first began seeing complainant in January 1989.
DR states that when the agency removed her from her detail, complainant
�went from a job which meant everything to her and in which she felt
confident, to a lack of confidence in herself. She went from a management
position to a clerical position and felt aimless, displaced, and greatly
ambivalent.� DR further stated that complainant placed great emphasis
on her career, �which gave her a great deal of satisfaction, a sense
of competence, and sense of achievement. When all this was removed
from her, she felt cheapened and humiliated. Her depression included
frustration, a lack of confidence in herself, low energy, and problems
with attention and concentration.� DR recounted that when complainant was
first seen after the incident occurred �she was dazed and confused about
what happened. She had developed ulcers, she felt victimized, angry and
depressed. . . . she had a total loss of confidence and began to question
herself.� DR further reported complaints of anxiety, humiliation,
worsening depression, feelings of helplessness and hopelessness, and of
sickness whenever complainant saw the discriminating official.
Complainant submitted a statement to the effect that when she was selected
for the two year detail as producer of the Suncoast Satellite Broadcast
Network �I was thrilled� and that when she was told two days later that
the detail had been cancelled �I was devastated and embarrassed since
notification of my assignment had been sent to all Postmasters and Station
Managers in the Suncoast District.� Complainant states that she �suffered
immeasurable damage to my self-worth and self-esteem, including mental
anguish, depression, physical pain and suffering, ability to concentrate,
headaches, backaches, sleeplessness, anxiety, personal relationships
[sic], . . . lethargy, . . . and loss of enjoyment of life (with negative
thoughts of the purpose of my existence)� and that �the incidents caused
a serious distrust of men and impaired my ability to date and form male
relationships.� Correspondence from complainant's sister, dated March 11,
2003, said that complainant suffered from feelings of guilt and anger,
decline in self confidence, clinical depression, fear and paranoia.
While the FAD correctly notes that some of complainant's stress could be
attributed to changes in complainant's career, and dissatisfaction with
a subsequent position, we find it disingenuous of the agency to argue
that such events are unrelated to the discriminatory incident at issue.
Instead, a review of the record makes it clear that the �changes� and
the �dissatisfaction� referred to are changes that were caused when
complainant was removed from her detail and subsequently reassigned to
a less prestigious, and hence less �satisfactory,� position. It is
precisely this removal and reassignment that we found to constitute
discrimination in our prior decision. See Thibault v. United States
Postal Service, EEOC Appeal No. 01A05782. Any stress resulting from
such �career changes� and from the subsequent �unsatisfactory� position,
therefore, resulted ultimately from the agency's discrimination.
Several Commission decisions have addressed compensatory damages in
cases similar to complainant's. See Terrel v. Department of Housing
and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996)
($25,000.00 awarded where complainant was hurt, embarrassed, withdrawn,
and reclusive, and suffered marriage difficulties, crying, weight-loss,
and loss of self-esteem, but symptoms in part were due to issues unrelated
to agency's discrimination); Hogeland v. Department of Agriculture, EEOC
Appeal No. 01976440 (June 14, 1999) ($25,000.00 awarded where agency's
action led to aggravation of complainant's preexisting depression,
headaches, and abdominal pain); Flythe v. Department of the Army, EEOC
Appeal No. 01972258 (April 11, 2000) ($30,000.00 awarded for complainant's
anger, pain, frustration, severe anxiety, marital tension, irritability,
and nervousness).
Given the above, we find that the evidence supports an award
of $25,000.00. This amount takes into account the severity and the
duration of the harm done to complainant by the agency's action, as well
as the fact that a portion of complainant's emotional harm pre-dates the
agency's action. The Commission further notes that this amount meets
the goals of not being motivated by passion or prejudice, not being
"monstrously excessive" standing alone, and being consistent with the
amounts awarded in similar cases. See Ward-Jenkins v. Department of
the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing 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).
Pecuniary Damages
Complainant claims reimbursement in the amount of $103,506.00 for lost
retirement benefits due to her early retirement in 2002. The agency
denied the claim on the grounds that such lost benefits were not causally
related to the underlying claim of discrimination at issue. In view of
the fact that the record does not indicate that complainant filed a claim
of constructive discharge, we concur with the agency's denial of this
claim. In her appeal, complainant also requests an unspecified amount in
compensation for loss of future earning capacity. The agency denied such
a claim on the grounds that the record contained insufficient objective
evidence to support an award for future pecuniary damages. We note that
there is no evidence that complainant is unable to work as a result of
the discriminatory conduct of the agency. While DR noted that remaining
in her position at the agency exacerbated complainant's symptoms, the
doctor did not indicate that complainant could not work again at all.
Accordingly, complainant's claims for future lost retirement benefits
and loss of future earning capacity are denied.
Regarding past pecuniary expenses, we agree with the FAD's finding that
$377.00 in medical expenses was not shown to be related to the claim at
issue, and $445.00 in medical expenses was not verified by an authentic
receipt or record.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD in part
and reverse the FAD in part.
ORDER
The agency is ordered to take the following remedial action:
As the record shows that the agency has already issued complainant a check
in the amount of $12,882,50, within sixty (60) days of this decision
becoming final, the agency shall issue complainant an additional check
in the amount of $15,000.00 in nonpecuniary compensatory damages.
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 appellant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
ATTORNEY'S FEES (H0900)
If complainant 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.
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
July 27, 2004
__________________
Date