01A03047
06-12-2002
Lorretta Holliday, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Lorretta Holliday v. Department of Agriculture
01A03047
June 12, 2002
.
Lorretta Holliday,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A03047
Agency Nos. 970246 & 970501
DECISION
BACKGROUND
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal in the above-entitled matter. The issue on appeal is whether
complainant has established that she is entitled to compensatory damages
beyond those awarded by the agency.
In January 1996, pursuant to a settlement agreement obtained through a
class action suit, the agency reassigned complainant from a Community
Development Assistant<1> position in its Salem, Oregon facility to a
vacant GS-11, Community Development Manager (CD Manager) position in
its Eugene, Oregon facility. Prior to the settlement agreement, the
agency advertised the vacant CD Manager position. A staff member of
the Eugene, Oregon facility (C1) applied for the vacancy. C1 was one of
the strongest candidates because she served in the vacant position in an
acting capacity for two years and was �backed� by the position's first
line supervisor (S1). Due to the aforementioned settlement agreement,
the vacancy was canceled, complainant was appointed and unknowingly
entered a very hostile work environment. Complainant functioned fourteen
months in the hostile work environment. She retired effective March 1997.
Complainant, believing that she was a victim of discrimination, filed an
EEO complaint alleging that the agency discriminated against her based
on sex (female) and reprisal (prior Title VII-related activity) when it
subjected her to a hostile work environment (harassment) and constructive
discharge. The complaint was investigated and complainant was informed
of her right to elect a hearing before an EEOC administrative judge or
an immediate final agency decision (FAD). Complainant chose the latter.
The agency issued a FAD, finding discrimination based on reprisal, but
not sex, for harassment and constructive discharge. The agency ordered
remedies, including compensatory damages. Subsequently, the agency issued
a FAD awarding complainant $9,000 in non-pecuniary, compensatory damages.
The agency found complainant's lack of medical documentation noteworthy
in determining the amount it awarded. This appeal followed. On appeal,
complainant stated that the agency's remedy was inadequate and requested
$100,000 in non-pecuniary damages. Our decision will focus solely on
the appropriateness of the agency's non-pecuniary award.<2>
ANALYSIS AND FINDINGS
When discrimination is found, the agency must provide the complainant
with a remedy that constitutes full, make-whole relief to restore the
complainant 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). Section 102(a) of the Civil Rights Act of 1991 (the CRA
1991), Stat. 1071, Pub. L. No. 102-166, codified as 42 U.S.C. � 1981a,
authorizes an award of compensatory damages as part of the "make whole"
relief for intentional discrimination. Section 1981a(b)(2) indicates
that compensatory damages do not include back pay, interest on back
pay, or any other type of equitable relief. 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, is $300,000.
42 U.S.C. � 1981a(b)(3)(D).
Compensatory damages, however, are further limited to the amount
necessary to compensate an injured party for actual harm caused by
the agency's discriminatory action, even if the harm is intangible.
Damiano v. U.S. Postal Service, EEOC Request No. 05980311 (February
26, 1999). Compensatory damages should consider the extent, nature,
and severity of the harm and the length of time the injured party endured
the harm. Id.; 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. The Commission notes that for a proper award of
non-pecuniary compensatory damages, the amount of the 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 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)).
Complainant submitted evidence, through her own affidavit as well as
affidavits from relatives and former coworkers, of the emotional distress
caused by the agency's action. Complainant stated that prior to the
retaliation, she was �an upbeat, optimistic and happy person . . . [who]
approached [her] work with a good attitude and was confident in [her]
abilities,� but that after the retaliation, �[her] whole world was turned
upside down.� Complainant stated that she found it difficult to report
to work each day, began to question her own abilities, lost enjoyment in
life, isolated herself from loved ones, and gained weight. Complainant
added that she suffered financial difficulties due to the retaliation
because she had to retire two years earlier than she planned and had
difficulty obtaining employment. Complainant stated that she eventually
obtained employment as a part-time bookkeeper earning $6.00 per hour,
which is only a small portion of what she earned as a full-time GS-11
agency employee, so as a result, she had to sacrifice her own household
and move in with her elderly mother. In addition, complainant stated that
her professional reputation, which she worked twenty five years to build,
deteriorated along with her self-esteem. Finally, complainant stated
that she experienced stress, depression, distrustfulness, humiliation,
fear, sleeplessness, exhaustion, headaches, higher blood pressure, and
exacerbation of a physical impairment due to the agency's retaliation.
Complainant indicated that the effects of the retaliation remain.
Complainant's children and former coworkers corroborated her statements.
Complainant's daughter added that complainant complained about the
retaliation daily and cried consistently. Complainant's son stated
that complainant remains cynical and much less cheerful than prior to
the retaliation. Complainant's former coworkers stated that complainant
consistently called them to ask questions regarding matters about which
she was very knowledgeable, was obviously stressed, and was placed on
medication for high blood pressure.
As previously noted, the agency considered the absence of medical evidence
in the record in awarding complainant $9,000 in non-pecuniary damages.
The Commission has previously held that neither evidence from a medical
provider nor expert testimony in general is a mandatory prerequisite for
recovery of compensatory damages for mental and emotional distress,
and that evidence may include statements from the complainant.
Mayo v. Department of Treasury, EEOC Request No. 05990302 (July 21, 2000).
Based on the record, the Commission finds the agency's award insufficient
to remedy the severe and persistent harm the agency's actions caused
complainant. We find $50,000 an appropriate amount as complainant
presented sufficient objective evidence to establish that the agency's
actions caused her emotional distress on, minimally, a daily basis for
fourteen months. Similar cases with somewhat similar evidence support
this award. See, e.g., Bowden v. Dep't of Veterans Affairs, EEOC Appeal
No. 01A00360 (June 22, 2000) ($45,000 award for non-pecuniary damages
where the agency subjected complainant to harassment, which resulted in
exacerbation of depression, injury to professional standing, character,
reputation, and credit rating, humiliation, physical manifestations,
loss of self-esteem, and marital and family problems); Turner v. Dep't
of Interior, EEOC Appeal No. 01956390 (April 27, 1998) ($40,000 award
for non-pecuniary damages where the agency subjected complainant
to sexual harassment and retaliation, which resulted in depression,
anger, anxiety, frustration, sleeplessness, crying spells, loss of self
esteem and strained relationships); Wallis v. U.S. Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995) ($50,000 award for non-pecuniary
damages where the agency retaliated against complainant, which resulted
in exacerbation of a preexisting mental condition, loss of reputation,
injury to credit standing, emotional distress, loss of enjoyment of life,
and loss of health.)
CONCLUSION
The agency's final decision is modified. The agency is instructed to
comply with the order as set forth below.
ORDER
The agency is ORDERED to take the following remedial action within 60
calendar days of the date this decision becomes final, unless otherwise
noted:
(1) The agency shall pay complainant compensatory damages in the amount
of $50,000 for non-pecuniary damages, less any non-pecuniary damages
already paid.
(2) The agency shall pay complainant's reasonable attorney's fees and
costs related to pursuing this appeal, in accordance with the paragraph
below entitled, �Attorney Fees.�
(3) The agency is further directed to submit a report of compliance, as
provided in the paragraph entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's actions.
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 12, 2002
__________________
Date
1The record indicates that complainant's
former position as an assistant was a GS-11, but such information appears
inaccurate because the GS-11 CD Manager position was a promotion.
2The FAD stated that complainant did not submit a claim for pecuniary
damages. It appears that complainant was previously awarded pecuniary
damages.