01A14246
06-20-2002
Loretta L. Viers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Loretta L. Viers v. United States Postal Service
01A14246
June 20, 2002
.
Loretta L. Viers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal No. 01A14246
Agency No. 4C-450-1051-95
Hearing No. 140-98-8313X
DECISION
PROCEDURAL BACKGROUND
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her claim for compensatory damages. Complainant's claim for
compensatory damages arose out of 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., filed in March 1995.
Initially, an EEOC Administrative Judge found that complainant was not
discriminated against because of her sex. The Commission, however,
issued a decision reversing that decision and finding that the agency
discriminated against complainant on the basis of sex when she was
sexually harassed by her supervisor. See Viers v. United States
Postal Service, EEOC Appeal No. 01975665 (October 14, 1999), req. for
recons. denied, EEOC Request No. 05A00193 (November 30, 2000). Pursuant
to our order in 01975665, complainant was afforded the opportunity to
submit a claim for compensatory damages. After her submission, the
agency issued a FAD on May 24, 2001, awarding complainant $2,184.20 in
past pecuniary damages, $10,000 in non-pecuniary damages, and $28,529.30
in back pay, for a total award of $40,713.50.
Complainant herein appeals that decision. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
modifies the agency's final decision.
FACTUAL BACKGROUND
The record reveals that in July 1994 complainant began working as a clerk
in the CFS Unit at the agency's facility in Dayton, Ohio. From July
1994 to December, 31, 1994, complainant was subjected to a hostile work
environment because of her sex. On December 31, 1994, complainant left
work after an incident with her supervisor and did not return for ten
(10) months.
In its compensatory damages FAD, the agency made the following
determinations:
Amount Requested
Amount Awarded
Loss of Income
$ 37,269.30
$ 28,529.30
FERS/Social Security
$ 4,453.30
Unspecified
Leave Restoration
$ 6,550.00
Unspecified
Medical Bills/co-pay
$ 1,297.36
$ 1,297.36
Medical cost associated with PTSD and anxiety disorders PSI/MED
$ 641.14
$ 641.14
Visa Bill/furnace
$ 1,457.00
$ 0.00
Loans
$ 684.90
$ 0.00
House Payments
$ 4,144.00
$ 0.00
Medical Insurance
$ 182.10
$ 0.00
Travel to/from doctor
$ 145.20
$ 145.20
Travel to/from attorney
$ 341.22
$ 100.50
Travel to/from EEO hearings and investigations
$ 739.20
$ 0.00
Non-pecuniary damages
$ 300,000.00
$ 10,000.00
TOTAL
$ 357,904.72
$ 40,713.50
On appeal, complainant contends that the agency's awarded amounts are
�woefully inadequate.� The agency argues that the amounts are reasonable
and/or are supported by the record, and also argues that complainant's
brief on appeal should not be considered as it was untimely. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
When discrimination is found, the agency must provide complainant with
full, make-whole relief to restore her as nearly as possible to the
position she would have occupied absent the discrimination. See, e.g.,
Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Wan v. United States
Postal Service, EEOC Appeal No. 01995204 (July 11, 2001). The Commission
recognizes that not all harms done are amenable to precise quantification;
the burden of limiting the remedy, however, rests with the employer.
Smallwood v. United Airlines, Inc., 728 F.2d 614, 616 n.5 (4th Cir.),
cert. denied, 469 U.S. 832 (1984).
In West v. Gibson, 119 S.Ct. 1906 (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 Civil
Rights Act of 1991 (the 1991 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)(2) indicates
that compensatory damages do not include back pay, interest on back
pay, or any other type of equitable relief authorized by Title VII.
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. 42 U.S.C. � 1981a(b)(3)(D).
If complainant alleges an entitlement to compensatory damages and the
agency or Commission enters a finding of discrimination, the complainant
is given an opportunity to submit evidence establishing the claim.
To receive an award of compensatory damages, a complainant must
demonstrate that he or 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 recons. denied,
EEOC Request No. 05940927 (December 11, 1995); Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14 (Guidance).
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Guidance at 8.
Pecuniary losses are out-of-pocket expenses that are incurred as a result
of the employer's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
Past pecuniary losses are the pecuniary losses that are incurred prior
to the resolution of a complaint via a finding of discrimination, an
offer of full relief, or a voluntary settlement. Id. at 8-9.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. Thus, a compensatory damages award should
reimburse a complainant for proven pecuniary losses, future pecuniary
losses, and non-pecuniary losses. A complainant has a duty to mitigate
his or her pecuniary damages. Id. at 9. If a respondent can prove that
a complainant failed to mitigate pecuniary damages, the damages award
should be reduced to reflect all losses that could have been avoided by
the exercise of reasonable diligence. Id. at 9-10.
Appeal Briefs
The agency argues that we should not consider the arguments made
by complainant on appeal because the brief was untimely filed.
Specifically, complainant's attorney sent the agency's copy of the
brief to the incorrect address, although complainant's attorney had
the correct address and had previously used it on numerous occasions.
Complainant's attorney claims this was an unintentional mistake, but
agency counsel disagrees. Despite the delay, agency counsel was afforded
the opportunity to respond to the late-coming brief. As such, both briefs
will be considered on appeal, as no advantage was gained by complainant.
We also note that both complainant and the agency spend a great deal of
time rearguing the facts of the harassment, when liability attached,
and what actions should have been taken. These arguments are not
appropriate to the matter before us. The only issue on appeal before
this Commission is how much complainant is entitled to in compensatory
damages and equitable relief. The issue of liability was settled in
our previous decision and a request for reconsideration was denied.
Pecuniary Damages
The agency completely denied complainant's claim for reimbursement as
to her credit card bill for a furnace, personal loans, house payments,
medical records, and medical insurance. The agency partially denied
complainant's claim for reimbursement for travel to and from her attorney.
The agency argued that, as to the complete denials, these were expenses
complainant would have incurred regardless of the discrimination, and
those amounts were, therefore, not reimburseable expenses. Complainant
is not entitled to the additional windfall of having her house, loan,
household bills, and insurance payments made by the agency because she
was sexually harassed. See Wan v. United States Postal Service, EEOC
Appeal No. 01995204. Therefore, the decision to deny amounts listed
above is affirmed.
As to the partial denial, the agency states that the number of visits to
her attorney by complainant was excessive. We agree that 102 visits over
the course of this complaint is excessive and affirm the award of $100.50.
Non-Pecuniary Damages
Complainant also appeals the award of $10,000 for her pain and suffering
caused by the agency's treatment. We note that the agency, by awarding
complainant non-pecuniary damages, has conceded that complainant
established a nexus between the harm she sustained and the discriminatory
actions of the agency. Thus, we will not address the arguments relating
to nexus. The harm suffered by the complainant herein was severe, and she
must be justly compensated, with consideration given to how much previous
complainants have been awarded by the Commission, where the severity of
the harm suffered is similar to the facts of the instant action.
Pre-Existing Condition
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)).
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. Corcoran v. United States Postal
Service, EEOC Appeal Nos. 01A03456; 01A05522 (February 26, 2002);
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, however,
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.
While it is clear complainant had many emotional and psychological issues
that predate the events of her sexual harassment, it is also clear that
her suffering was at a low immediately preceding the events of December
31, 1994. Specifically, her psychological conditions were said to be
�in remission� by her doctor. This stabilization, therefore, makes
clear that the mental and emotional anguish suffered by complainant in
the months following the sexual harassment incidents was directly caused
by the agency's discrimination.
At the very heart of the principle of taking a victim as you find
her is the idea that one victim's response to harm does not set the
standard for what is considered reasonable suffering. Tortfeasors take
their victims as they find them, even when the claimed harm is mental
anguish or emotional distress. Tompkins v. Cyr, 202 F.3d 770, 780 (5th
Cir. 2000). A victim's particular susceptibility will not reduce the
damages available. Id.
Nature, Severity and Duration
The record indicates that complainant experienced fatigue, insomnia,
loss of marital harmony, apprehension, excessive anxiety, loss of
self-esteem, disinterest, feelings of isolation and fear, depression,
worry, humiliation, embarrassment, and a general loss of enjoyment of
life, friends and family. Complainant became withdrawn and was unable to
return to work for approximately one year. During that time complainant
was in counseling, but would nonetheless spend days inactive and did
not �keep herself up.� Complainant was also diagnosed with acute Post
Traumatic Stress Disorder (PTSD) and aggravation of her pre-existing
Generalized Anxiety Disorder (GAD). She was treated with various
medications, including Paxil, Ativan, and Klonopin.
We note that complainant's marital problems were exacerbated by the sexual
harassment, but that the problems were more on-going in nature. Thus,
the amount which complainant can be compensated for as to the severity of
this harm is reduced. Comparatively, her psychological problems were �in
remission.� The remission creates an inference of a discrete point in
time at which suffering because of the discrimination began. Moreover,
the nature of complainant's psychological trauma was such that she had
to live through a second incident of PTSD, with this one being acute.
Finally, according to the record, complainant suffered for a period of
approximately thirteen (13) months. She did not return to work for ten
(10) months. Further, she remains on medication. With this information,
we turn to the award amount.
Damages awards for non-pecuniary losses that have been assessed by juries
and courts have varied significantly. Guidance at 13. However, an award
of compensatory damages for non-pecuniary losses, including emotional
harm, should reflect the extent to which the respondent directly or
proximately caused the harm and the extent to which other factors also
caused the harm. Id. at 11-12. An award of compensatory damages for
non-pecuniary losses should also reflect the nature and severity of the
harm and the duration or expected duration of the harm. Id. at 14.
Jury and court awards for emotional distress or mental anguish which did
not include major depression have ranged from $500 to $100,000. See,
e.g., Fleming v. County of Kane, State of Illinois, 898 F.2d 553, 562 (7th
Cir. 1990) (jury award of $120,000 reduced to $40,000 for embarrassment,
humiliation, severe headaches, sleeplessness, and depression following
a termination); Wulf v. City of Wichita, 883 F.2d 842, 874-875 (10th
Cir. 1989) (jury award of $250,000 award remanded for reconsideration
and an award of damages no greater than $50,000 for anger, depression,
anxiety, frustration and emotional strain following a termination);
Jackson v. Pool Mortgage Co., 868 F.2d 1178, 1180 (10th Cir. 1989)
($24,421 award for depression, muscle spasms, stomach pain, and hair loss
following a termination); Kuntz v. City of New Haven, 3 AD Cases 1590,
1592 (D.C. Conn.) ($500 award for emotional distress based on testimony
that plaintiff was �disappointed,� �cranky� with family and friends,
�embarrassed� at not having been promoted, and had many sleepless nights),
aff'd. without opinion, 29 F.3d 622 (2d Cir.), cert. denied sub nom., City
of New Haven v. Kuntz, 155 S.Ct. 667 (1979); McClam v. City of Norfolk
Police Department, et al., 877 F. Supp. 277, 284 ($15,000 award for 18
months of headaches, lowered self esteem, and changes in attitude and
devotion toward job following repeated denials of job transfer requests);
Boyce v. Board of Commissioners of Dickinson County, 857 F. Supp. 794
(D. Kan. 1944) ($50,000 award for emotional pain, suffering and mental
anguish due to a hostile work environment); Willson v. Shannon, 857
F. Supp. 34, 37 (S.D. Tex. 1994) ($100,000 award for mental anguish
due to reprisal for filing a discrimination complaint); and Johnson
v. Philadelphia Electric Co., 709 F. Supp. 98, 104 (E.D. Pa. 1989)
($10,000 for mental anguish following the denial of a promotion).
The Commission has awarded varying amounts, depending upon the extent
and duration of the harm suffered. See, e.g., Bahaudin v. Department
of the Army, EEOC Appeal No. 01993594 (September 13, 2000) ($85,000
awarded where complainant, diagnosed with major depression, produced
evidence indicating that the agency's discriminatory actions caused
him to, among other things, become very irritable; distant; wake up at
night and make sudden jerking movements; not want to go to work; just
lay in bed when he was not working; neglect his home duties; and not
eat); McCann v. Department of the Air Force, EEOC Appeal No. 01971851
(October 23, 1998) ($75,000 awarded where complainant's testimony and
several reports supported a finding that the agency's discrimination
reawakened complainant's post traumatic stress disorder); Turner
v. Department of the Interior, EEOC Appeal No. 01956390 (April 27, 1998)
($40,000 awarded where discriminatory harassment, particularly forcing
complainant to carry a 45-pound back pack, caused her to experience
psychological trauma and physical injury with permanent effects); Jackson
v. United States Postal Service, EEOC Appeal No. 01972555 (April 15,
1999) ($30,000 awarded for emotional harm during a six month period);
Christian V. Department of Veterans Affairs, EEOC Appeal No. 01996342
(September 7, 2001) ($30,000 awarded where complainant was continuously
sexually harassed by a co-worker for a period of six years, no medical
evidence produced); Mooney v. United States Department of Agriculture,
EEOC Appeal No. 01974494 (May 24, 2000) ($20,000 awarded where complainant
suffered from depression and anxiety for 6-7 months, followed by a 4-5
month period of Major Depression, due to the agency's discrimination);
and Yue Lee Wan v. United States Postal Service, EEOC Appeal No. 01995204
(July 11, 2001) ($15,000 awarded where there was loss of marital harmony,
emotional distress, depression, and inability to sleep).
After a thorough review of the record, and given the severity, nature
and duration of distress experienced by complainant, we find that
an award of $65,000 is appropriate. We point out that 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 compensatory
damages determination must be based on the actual harm sustained and not
the facts of the underlying case). The Commission notes that this award
is not �monstrously excessive� standing alone, is not be the product
of passion or prejudice, and is consistent with the amount 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)).
Equitable Relief
Complainant does not make a specific argument against the award amounts
for loss of income, FERS/Social Security payments, or leave restoration.
Further, there is no evidence in the record to make a determination if
the amounts awarded are appropriate. Thus, we will not decide this issue.
CONCLUSION
The compensatory damages awarded to complainant are as follows:
Amount Requested
Amount Awarded By Agency
Amount Awarded By Commission
Loss of Income
$ 37,269.30
$ 28,529.30
Unchanged
FERS/Social Security
$ 4,453.30
Unspecified
Unchanged
Leave Restoration
$ 6,550.00
Unspecified
Unchanged
Medical Bills/co-pay
$ 1,297.36
$ 1,297.36
Unchanged
Medical cost associated with PTSD and anxiety disorders PSI/MED
$ 641.14
$ 641.14
Unchanged
Visa Bill/furnace
$ 1,457.00
$ 0.00
Unchanged
Loans
$ 684.90
$ 0.00
Unchanged
House Payments
$ 4,144.00
$ 0.00
Unchanged
Medical Insurance
$ 182.10
$ 0.00
Unchanged
Travel to/from doctor
$ 145.20
$ 145.20
Unchanged
Travel to/from attorney
$ 341.22
$ 100.50
Unchanged
Travel to/from EEO hearings and investigations
$ 739.20
$ 0.00
Unchanged
Non-pecuniary damages
$ 300,000.00
$ 10,000.00
$ 65,000.00
TOTAL
$ 357,904.72
$ 40,713.50
$ 95,713.50
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 modify the agency's final
decision and order the agency to take remedial actions in accordance
with this decision and Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action within sixty
(60) days of the date this decision becomes final:
Pay complainant $95,713.50 in damages. If the agency has already
tendered to complainant the $40,713.50 awarded in the May 24, 2001, FAD,
it shall tender the remaining amount of $55,00.00 to the complainant
within sixty (60) days; and
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
payment to complainant and other benefits due complainant, including
evidence that the corrective action has been implemented.
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.
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
June 20, 2002
__________________
Date