01991097
07-26-2000
Kathy L. Teal, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kathy L. Teal v. United States Postal Service
01991097
July 26, 2000
Kathy L. Teal, )
Complainant, )
)
v. ) Appeal No. 01991097
) Agency No. 4F-2722-93
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On November 18, 1998, Kathy L. Teal (hereinafter referred to as
complainant) filed a timely appeal from the October 27, 1998, final
decision of the United States Postal Service (hereinafter referred
to as the agency) concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The appeal is timely filed (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402(a)))<1> and is accepted in accordance with
64 Fed. Reg. 37,644, 37,659 (to be codified as 29 C.F.R. � 1614.405).
For the reasons that follow, the agency's decision is MODIFIED.
The issue presented in this appeal is whether the agency properly
determined the amount of compensatory damages due to complainant.
In EEOC Appeal No. 01960092 (June 18, 1998), the Commission found
that the agency discriminated against complainant on the bases of
race/color and reprisal.<2> The AJ found that the Postmaster (PM) at
the agency's Livermore, California, facility "subjected (complainant)
to harassment at work in an effort to force her from her position."
(RD, p. 2). Complainant worked for the agency since 1976 and became a
supervisor at Livermore in 1987. She worked under the PM's supervision
from January 1993, when he was assigned to Livermore, through December
1993, when she was detailed to another facility. From January 1994, she
was on disability leave for nine months due to stress, and since then has
worked as a relief supervisor in several positions at multiple facilities.
We described complainant's claims against the PM as follows:
(Complainant) alleged that the PM harassed her through intimidation,
disparaging and demeaning treatment, and verbal abuse. In particular,
she stated that he gave conflicting instructions, undermined her actions,
constantly changed her schedule, threatened her with loss of her position,
and gave her additional job duties and responsibilities. (Complainant)
also alleged that the PM's discussion of personal sexual matters with
her and his demonstrated favoritism towards another female supervisor
(Hispanic) [sic] (E1) created a hostile environment based on sex.
(Complainant) indicated that the PM's conduct inflicted severe emotional
distress and anxiety, which caused her to seek medical attention, to
file a claim for workers' compensation, and to use extensive sick leave
and leave without pay (LWOP).
The Commission ordered, inter alia, that the agency consider complainant's
claim for compensatory damages by requesting objective evidence from
her with an explanation of the information and documentation required.
The agency was required to request such information within 30 days and
issue its determination within 60 days of complainant's submission.
The agency conducted a supplemental investigation with regard to
complainant's claim for compensatory damages and issued a final agency
decision (FAD) on October 27, 1998, awarding complainant $3,920 in past
pecuniary damages and $15,000 in non-pecuniary damages. Although the
FAD recited the evidence supplied by complainant, it did not explain
the basis for the amount of its award for non-pecuniary damages.
The Civil Rights Act of 1991 (CRA) authorizes awards of compensatory
damages as relief for intentional discrimination in violation of
Title VII. 42 U.S.C. �1981a. Compensatory damages are recoverable in
the administrative process. West v. Gibson, 119 S.Ct. 1996 (1999);
see Jackson v. USPS, EEOC Appeal No. 01923399 (November 12, 1992),
req. to recon. den., EEOC Request No. 05930306 (February 1, 1993).
Compensatory damages may be awarded for losses and suffering due to the
discriminatory acts or conduct of the agency and include past pecuniary
losses, future pecuniary losses, and non-pecuniary losses that are
directly or proximately caused by the agency's discriminatory conduct.
See Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice No. N9152 (July 14, 1992)
(Notice) at p. 8.
Pecuniary Compensatory Damages: Complainant claimed $3,920 in
pecuniary damages, and the agency agreed; she does not dispute the
amount awarded.<3> Accordingly, we affirm that portion of the agency's
decision.
Non-pecuniary Compensatory Damages: With regard to non-pecuniary
compensatory damages, complainant appeals the agency's award, arguing that
the extent, severity, and egregious nature of the agency's discriminatory
actions merited a higher amount, and she claimed $300,000 in such damages.
Complainant presented medical documentation and reports demonstrating
that she suffered physical and mental symptoms beginning in March
1993, including anxiety, depression, loss of sleep, backaches, muscle
cramps, and deterioration of occupational functioning. Several medical
professionals submitted reports describing her stress and stress-related
symptoms and the need for medication and therapy, diagnosing her as
having an adjustment disorder with mixed emotional and physical aspects.
In addition, her husband of almost 30 years attested to the onset of
complainant's depressed emotional state due to the treatment of the
PM and resulting work-related stress. He also stated that previously,
complainant had been happy and enjoyed her work. Finally, complainant
submitted a lengthy statement, noting numerous specific incidents of
harassment from the PM's arrival in January 1993. She also noted that
she was disabled for nine months from January 1994, and thereafter worked
an erratic schedule as a substitute supervisor.<4> She stated that she
continued her therapy through at least May 1995.
In claiming an award of compensatory damages, a complainant must
demonstrate through appropriate evidence and documentation that she
has been harmed as a result of the agency's discriminatory action;
the extent, nature, and severity of the harm that she suffered; and the
duration or expected duration of the harm. Rivera v. Department of the
Navy, EEOC Appeal No. 01934156 (July 22, 1994), req. to recon. den.,
EEOC Request No. 05940927 (December 11, 1995); Notice at 11-12, 14; see
also, Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). An award of compensatory damages for non-pecuniary
losses, including emotional harm, should reflect the extent to which the
agency's discriminatory action directly or proximately caused the harm
and the extent to which other factors also caused the harm. See Johnson
v. Department of Interior, EEOC Appeal No. 01961812 (June 18, 1998).
Also, the amount of an 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).
The Commission seeks to make damage awards for emotional harm consistent
with awards in similar cases. Taking into account the nature, severity,
and duration of harm, the Commission has approved awards of non-pecuniary
compensatory damages in several cases where the complainant was subject to
harassment. See Chow v. Department of the Army, EEOC Appeal No. 01981308
(August 5, 1999) ($100,000 for physical and mental suffering due to
supervisor's harassment); Carpenter v. Department of Agriculture, EEOC
Appeal No. 01945652 (July 17, 1995) ($75,000 for non-pecuniary damages in
order to compensate the complainant for the deterioration of her medical
and emotional condition); Finlay v. United States Postal Service, EEOC
Appeal No. 01942985 (April 29, 1997) ($100,000 in non-pecuniary damages
to compensate for severe psychological injuries over four years); and
Santiago v. Department of the Army, EEOC Appeal No. 01955684 (October 14,
1998) ($125,000 in non-pecuniary damages for severe emotional distress
after her removal).
Given the severity of the psychological and physical harm experienced by
complainant, the egregiousness of the discriminatory acts, the duration
of the harassment and period of time complainant was incapacitated,
and awards made by the Commission in similar cases, we find that
complainant is entitled to non-pecuniary damages in the amount of $95,000.
Our determination considers the emotional and physical symptoms described
by the complainant and medical professionals, is not motivated by passion
or prejudice, is not monstrously excessive, and is not inconsistent with
amounts awarded in similar cases. See Cygnar v. City of Chicago, 865
F.2d 827, 848 (7th Cir. 1989); and EEOC v. AIC Security Investigations,
Ltd., 823 F. Supp. 573, 574 (N.D. I11. 1993).
CONCLUSION
Accordingly, the agency's decision is AFFIRMED, in part, and REVERSED,
in part. The agency is directed to comply with the Order, below.
ORDER
The agency is ordered to take the following remedial actions:
A. Within thirty (30) days of the date this decision is received, if it
has not already done so, the agency shall issue a check to complainant
for $3,920 for proven pecuniary compensatory damages.
B. Within sixty (60) days of the date this decision is received,
the agency shall issue a check to complainant for $95,000 for proven
non-pecuniary compensatory damages.
C. Within thirty (30) days of the date this decision is received,
the complainant shall submit to the agency (not to the Commission) a
verified statement in support of attorney's fees for pressing her claim
for compensatory damages, including attorney's fees incurred for this
appeal, if any. Within twenty (20) calendar days of the date of receipt
of the verified statement, the agency shall issue to the complainant a
determination on the amount of attorney's fees along with a check for
the sum the agency determines as being appropriate in accordance with
the Commission's regulations. The agency's determination shall include a
notice of right to appeal the determination to the Commission; specific
reasons for determining the amount of the award; and a notice that the
complainant may cash the check for the awarded sum of attorney's fees
without prejudice to her right to appeal the award to the Commission.
D. Within thirty (30) days of its payments to complainant, the agency
shall submit copies of the checks for compensatory damages to the
Compliance Officer, as referenced below.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
07-26-00
Date Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ _____________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The Commission's decision affirmed the Recommended Decision (RD) of the
Administrative Judge in EEOC Hearing Nos. 370-94-X2504 and 370-94-X2505.
3In addition, complainant argued that she was entitled to interest
based on the agency's failure to timely implement the relief ordered
and as part of her claim for make-whole relief. We find however that
the agency acted within a reasonable period from the date of our Order.
Also, complainant did not seek future pecuniary damages for further
medical or psychological treatment.
4In a letter dated May 21, 1999, the agency reported that complainant
had been assigned to the Fremont, California, facility. It is not clear,
however, whether this assignment is a permanent one and when it occurred.
The Commission is seeking further information from the agency. See EEOC
Petition No. 04990026, issued simultaneously with the instant Decision.