01a41857
07-07-2005
Linda Fields, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Linda Fields v. Department of Defense
01A41857
July 7, 2005
.
Linda Fields,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A41857
Agency No. CA-02-003
DECISION
Complainant timely initiated an appeal from a final agency decision on
compensatory damages concerning her complaint of 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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's decision.
The record reveals that complainant, an employee of the Defense Supply
Center in Columbus, Ohio, sought EEO counseling and subsequently filed
a formal complaint on March 5, 2002, alleging that she was discriminated
against:
(1) on the basis of sex (female) when, for a period from mid-1999
through December 2001, she was regularly harassed in a sexual manner
by a DSCC supervisor (not her supervisor); and
on the basis of race (Native American) when the same DSCC supervisor
made disparaging remarks about her ancestry.
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 that the agency issue a final decision.
In its final decision on the merits of the case (FAD1), the agency
concluded that complainant had not been subjected to race discrimination,
but that she had been subjected to sexual harassment in the form of
�inappropriate touching and sexually tinged remarks� for a five-week
period, from approximately November 13 to December 19, 2001. FAD1 advised
complainant of her entitlement to submit a claim for compensatory damages.
Complainant did so by a claim letter dated May 23, 2003. In her claim
letter, complainant first requests $45,301.62 in monetary damages.
This amount covers prescription medications ($1,100.00), social worker and
psychiatrist costs ($1,435.00 and $940.00 respectively), wages lost due to
non-promotion ($7,556.00), and time/leave lost from work ($34,270.62).
Complainant additionally requests $491,745.00 for lost pay from now
until the date of her planned retirement since she �will never be able
to return to work due to the sexual harassment practiced upon her and
its emotional impact.� Finally, complainant requests $3,500,000.00 to
cover her claim for �future lost wages, and past, present and emotional
damages and suffering, and for future costs of treatment therefore...�<0>
In its final agency decision on damages (FAD2), the agency first noted
that in determining the amount of the compensatory damages award, several
factors were considered. First, complainant had pre-existing therapeutic
issues, and a history of taking medication. Second, FAD2 noted that
complainant's psychiatrist (P1) was unsure of the effect on complainant
of the sexual harassment. Additionally, FAD2 found that some of P1's
treatment of complainant focused on complainant's EEO case. Further, FAD2
found that the period of harassment (October 1999 to March 2002) on which
P1 based his opinion far exceeded the time frame of harassment determined
in the decision finding discrimination (five weeks). Ultimately, FAD2
awarded complainant $20,000.00 in non-pecuniary damages.
As for past pecuniary damages, FAD2 awarded (a) $990.00 for prescription
medications; (b) $661.00 for treatment costs; and (c) $2,710.00 for the
costs of twelve months of future treatment. FAD2 noted that it made
no award for complainant's request for lost wages due to non-promotion
because the selection at issue occurred in July 2000, over one year
before the commencement of the period of harassment according to FAD1.
FAD2 also noted that complainant's request for time/leave lost from work
due to emotional distress constitutes a request for equitable relief,
which is outside the scope of FAD2. Finally, FAD2 denied complainant's
request for future lost wages, on the basis that complainant was granted
disability retirement in July 2003, and awarding future lost wages would
constitute double recovery. In sum, FAD2 awarded complainant a total
of $24,361.00 for pecuniary and non-pecuniary damages.
On appeal, complainant, through counsel, contends that FAD2 appears
to find that complainant's disability retirement resulted from a slip
and fall on ice in a parking lot. Complainant asserts that this badly
misconstrues the facts, as the disability retirement was due to the
sexual harassment and its emotional impact on complainant. Additionally,
complainant contends that FAD2 erred in failing to grant future damages
due to the fact that complainant received disability retirement.
Complainant requests �a far more justifiable and fair award.�
In its opposition to the appeal, the agency asserts that complainant's
slip and fall was not relevant to her claim for compensatory damages,
and notes that it was not considered in the calculation of damages.
Additionally, the agency asserts that complainant is not entitled to
future lost wages because she received wage replacement income in the
form of Federal Disability Retirement benefits. The agency contends that
by their very nature, the concept of retirement benefits, whether or
not disability benefits, and lost future wages are mutually exclusive.
In the alternative, the agency contends that it is entitled to offset
the wage replacement benefits from the amount of future lost wages,
as well as to proportionately reduce the amount of damages based on
complainant's preexisting condition.
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that
Congress afforded the Commission the authority to award compensatory
damages in the administrative process. Section 102(a) of the CRA,
codified as 42 U.S.C. � 1981a, authorizes an award of compensatory
damages as part of the "make whole" relief for intentional discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended.
Section 1981a(b)(3) limits the total amount of compensatory damages
that may be awarded to each complaining party for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish, loss
of enjoyment of life, and other non-pecuniary losses, according to the
number of persons employed by the respondent employer. The limit for
an employer with more than 500 employees, such as the agency herein,
is $300,000.00. 42 U.S.C. � 1981a(b)(3)(D).
Initially, we note that complainant does not contest the award of
$20,000.00 in non-pecuniary damages. Accordingly, we will not disturb
the amount of this award. Additionally, complainant does not contest
the amounts awarded for prescription medications, treatment costs, or
future treatment. Therefore, again, we will not disturb the amounts
of these awards. Additionally, we find that FAD2 did not find that
complainant's disability retirement resulted from a slip and fall on
ice in a parking lot.
We now turn to addressing the question of whether complainant is entitled
to future lost wages. Lost earning capacity represents a loss in
one's future earning power and is distinct from the issue of front pay.
That is, an award for the loss of future earning capacity considers the
effect that complainant's injury will have on her ability in the future to
earn a salary comparable with what she earned before the injury. St. John
v. United States Postal Serv., EEOC Appeal No. 01996707 (January 29,
2002); Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995); McKnight v. General Motors Corp., 973 F.2d 1366, 1370
(7th Cir. 1992); Williams v. Pharmacia Inc., 956 F. Supp. 1457, 1467
(N.D. Ind. 1996). An award of damages for lost earning capacity comports
with Title VII's goal of providing make-whole relief to the victims of
discrimination. Williams, 956 F. Supp. at 1466 (citing Albemarle Paper
Co. v. Moody, 422 U.S. 405, 417-19 (1975)). The Commission previously has
awarded future pecuniary damages for the loss of future earning capacity.
See Brinkley v. United States Postal Serv., EEOC Request No. 05980429
(August 12, 1999); Finlay v. United States Postal Serv., EEOC Appeal
No. 01942985 (April 29, 1997).
Proof of entitlement to loss of future earning capacity involves
evidence suggesting that the individual's injuries have narrowed the
range of economic opportunities available to her. Carpenter, supra.
Generally, the party seeking compensation for loss of earning capacity
needs to provide evidence which demonstrates with reasonable certainty
or reasonable probability that the loss has been sustained. Id.
We find that the record evidence is inadequate to make an award
for any claimed impact on complainant's future earning potential.
Although complainant was granted disability retirement and claims that
she can never return to work because of the discriminatory conduct, the
medical evidence of record does not indicate with reasonable certainty or
probability that complainant could not have worked in other federal or
non-federal jobs at some point before complainant's planned retirement
date. In so finding, we note the letter from complainant's social
worker, dated April 7, 2003, stating �Throughout our subsequent sessions
[complainant] has focused largely on the issues of the workplace and on
her increasingly difficult time in coping with the expectations of her
job, the continued presence in the workplace of the man who harassed
her, and her perception of the lack of protection and support provided
her by her superiors and most of her fellow workers. In general, her
condition has improved significantly during this time, as she remains
depressed and anxious and is even less able to function on the job,
currently applying for disability status.� These statements from the
social worker indicate that complainant had difficulty working in her
current job, but do not suggest a narrowing of the range of other economic
opportunities available to her.
The record is also devoid of evidence of the likely duration of
complainant's diminished future earning capacity. A letter from
complainant's psychiatrist dated March 21, 2003, indicates that
complainant could not currently work in the job she previously held,
and further states �Whether at some point [complainant] would be able to
return to employment in a different federal situation, in a different
type of job is impossible to define at the present. Her condition,
beyond the work responsibilities, would have an effect on her ability to
be in the workplace. She would be absent at times, episodically and not
necessarily predictably.� In the April 7, 2003 letter from complainant's
social worker, he states �It is very clear that the harassment has
significantly affected her ability to return to work in her present
condition, and has likewise caused her to miss substantial time at work
since it occurred.� This evidence does not demonstrate that complainant's
injuries have narrowed the range of economic opportunities available
to her. Complainant has failed to provide evidence which demonstrates
with reasonable certainty or reasonable probability that the future wage
loss has been sustained, and recovery for those losses must be denied.
Consequently, we AFFIRM FAD2, and the agency is ordered to take remedial
actions in accordance with this decision and order below.
ORDER
Within sixty (60) days of the date this decision becomes final and to
the extent it has not already done so, the agency is ordered to:
pay complainant $20,000.00 for non-pecuniary damages; and
pay complainant $4,361.00 for pecuniary damages.
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 (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 7, 2005
__________________
Date
0 1It appears that the figure of $3,500,000.00 includes the $491,745.00
previously cited.