01A02246
08-14-2002
Judith C. Benjamin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judith C. Benjamin v. United States Postal Service
01A02246
08-14-02
.
Judith C. Benjamin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02246
Agency No. 1A-072-1031-94
DECISION
Complainant timely initiated an appeal to the Equal Employment
Opportunity Commission concerning her entitlement to compensatory damages.
The final agency decision (FAD) found that complainant was not entitled
to compensatory damages because she failed to show a causal connection
between the respondent's illegal action and the emotional harm alleged.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant filed a formal complaint on May 18, 1994, against the
Postal Service claiming, in relevant part, discrimination based on
race (Black), national origin (West Indian), sex (female), age (DOB:
1/21/47), and retaliation (prior EEO complaint activity under Title
VII), when complainant was not offered a job with the Postal Service
after she passed both an exam and a physical. The record reveals that
complainant re-applied for a position with the agency in 1993 after being
terminated for cause in 1985. Upon completion of the application process,
complainant waited for a call that would notify her of her start date.
At some point in 1994 however, complainant received a call from the
agency informing her that they had selected someone more qualified
for the position. Complainant maintained that she was devastated.
She indicated that she was thrown for a loop and felt worthless, lost
her self-esteem, and had no ambition. Complainant contends that she
could not get the telephone call from the agency out of her mind and
as a result had to drop out of a college program that she started in
September 1996. Complainant also indicated that due to her high anxiety
level associated with not being hired, she had a stroke in September 1996.
Complainant contended that she is still a wreck and has flashbacks.
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 a hearing before an EEOC Administrative Judge (AJ). The AJ
issued a finding of discrimination based on reprisal. The AJ ordered a
supplemental investigation regarding compensatory damages. Following an
investigation, the agency issued a FAD awarding no compensatory damages.
The agency denied complainant's request for pecuniary compensatory
damages because complainant presented no evidence of bills actually
incurred relative to the agency's failure to hire her in November 1993.
With respect to non-pecuniary damages, the agency found that complainant
had linked her damages to the EEOC Hearing held on June 3, 1997<1>,
and not to the retaliatory event itself, some four years earlier.
On appeal complainant requests non-pecuniary compensatory damages in the
amount $130,000.00, unspecified pecuniary damages, unspecified loss of
future earnings, and front-pay until she is age 65. Complainant maintains
that the agency's action of not hiring her caused a diminution in her
ability to earn a living, in that the pain and suffering, mental anguish
and anxiety, connected with the reprisal resulted in a stroke.
ANALYSIS
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages
do not include back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII. 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. 01934157
(July 22, 1994), req. for reconsid. denied, EEOC Request No. 05940927
(December 11, 1995); EEOC's Enforcement Guidance: Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) (�Guidance�).
A complainant is required to provide objective evidence that will allow
an agency to assess the merits of her request
for damages. See Carle v. Department of the Navy, EEOC Appeal
No. 01922369 (January 5, 1993).
Non-pecuniary damages constitute the sums necessary to compensate
the injured party for actual harm, even where the harm is intangible.
Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). The
award should take into account the severity and duration of the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995). Non-pecuniary and future pecuniary damages are limited to
an amount of $300,000.00.
Non-pecuniary compensatory damages are designed to remedy a harm and
not to punish the agency for its discriminatory actions. See Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986) (stating
that a compensatory damages determination must be based on the actual harm
sustained and not the facts of the underlying case). In the instant case,
we find that while almost certainly this incident caused some degree of
emotional distress to the complainant, not all of her injuries can be
attributed to denying complainant a position with the agency.
We note that this award of compensatory damages is made in order to
remedy any harm suffered by complainant only as it relates to her being
denied a position with the agency due to retaliation, and we cannot
make an award that takes into account the processing of other past or
current EEO matters, illnesses or situations that are remote from the
discriminatory incident. We find, contrary to the agency's findings, that
complainant has demonstrated that she experienced emotional distress i.e.,
felt worthless, lost her self-esteem, and had no ambition, as a result
of the telephone call that indicated that she did not get the position.
We agree with the agency however, that complainant has not demonstrated
the necessary nexus that links the discriminatory incident which occurred
in 1994 to events which occurred some two to three years later, e.g.,
dropping out of school or having a stroke.
The Commission has awarded compensatory damages in cases somewhat
similar to complainant's case in terms of the harm sustained. See, e.g.,
Jojola-Jemison v. United States Postal Service, EEOC Appeal No. 01970027
(1998) ($500 award based on statement of the complainant that she suffered
severe anxiety and depression, without corroborating statements from
family, friends, or medical personnel). In this instance, complainant
provided corroborating statements from family and friends but taking
into account the harm alleged by complainant, the Commission finds
that complainant is entitled to non-pecuniary damages in the amount
of $1,000.00. This amount takes into account the severity and duration
of the harm suffered, and is consistent with prior Commission precedent.
Further, since complainant failed to provide medical bills or any
evidence of any expenses for the services she listed as pecuniary damages,
complainant is not entitled to pecuniary damages.<2>
CONCLUSION
Accordingly, based on a thorough review of the record, we MODIFY and
REMAND the agency's final decision and award non-pecuniary compensatory
damages in the amount of $1,000.00. We ORDER the agency to comply with
the Order below.
ORDER
To the extent it has not already done so, the agency is ORDERED to take
the following remedial action:
(1) We hereby ORDER the agency to, within thirty (30) days of the date
on which this decision becomes final, tender to complainant a total of
$1,000.00 in compensatory damages.
(2) Proof of payment of compensatory damages must be sent to the
Compliance Officer, as referenced below.
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.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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 (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
____08-14-02______________
Date
1 Complainant indicated: �testimony at hearing
revealed my EEO activity was the motivating factor. I was devastated.
I was crushed. All my hopes, and dreams for me and my daughter died.�
2 Pecuniary losses are out-of-pocket expenses incurred as a result of
the agency's unlawful action, including job-hunting expenses, moving
expenses, medical expenses, psychiatric expenses, physical therapy
expenses, and other quantifiable out-of-pocket expenses.