01980671
03-23-2001
Mary L. Jenkins, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Mary L. Jenkins v. Department of the Air Force
01980671
March 23, 2001
.
Mary L. Jenkins,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01980671
Agency No. MVOF93238
Hearing No. 370-95-X2323
DECISION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
concerning the agency's award of compensatory damages. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Supply Systems Analyst, GS-11 at the McClellan Air Force Base,
Sacramento, California. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint. when based on her race (Black), color (black), national origin
(African), and sex (female) on February 7, 1993, she was not classified
as a Supply Systems Analyst, GS-12 upon termination of the Pacer Share
project when other eligible employees were and when from February 11,
1993 through March 20, 1993, her second line supervisors would not
reconsider reclassifying her at the GS-12 level. At the conclusion of
the investigation, complainant requested a hearing. The AJ found that
complainant had met her burden of proof and recommended the issuance
of a final agency decision (FAD) of discrimination. In its FAD, the
agency concluded that complainant had been discriminated against with
respect to the above issues and requested information from complainant
regarding her damages. Complainant submitted statements which maintained
that she had suffered constant mental anguish, emotional distress,
humiliation, embarrassment, sleeplessness, crying, increased smoking,
loss of companionship and interference with family life. Complainant's
husband and son also submitted information describing complainant's
response to the discriminatory action. Complainant requested $800,000
in compensatory damages for herself and $250,000 for her husband. The
compensatory damages FAD found that although complainant proved that
she had suffered some degree of emotional distress during the relevant
time period, it was not persuaded that the emotional harm suffered
by complainant was severe. The FAD awarded complainant $1,000.00 in
non-pecuniary damages. On appeal, complainant contends that her emotional
distress was in fact severe. She maintains that her depression and the
emotional harm that she suffered affected her health, home life, work
life and reputation. Complainant also requests damages for her spouse.
The agency requests that we affirm its FAD.
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
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 taken 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. The Commission notes that for a proper
award of non-pecuniary 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)).
Applying the above legal standards, we agree with the agency that
complainant submitted sufficient unrebutted evidence to establish that
she suffered emotional harm as a result of the agency's discrimination.
The record contains several instances where complainant describes
the effects the discrimination had on her mental and physical health.
Complainant's statement in support of compensatory damages indicate that
she experienced interference in relationships with family and friends,
experienced a worsening of her smoking, sleeplessness and experienced
depression, anxiety and embarrassment. We find that this uncontroverted
evidence establishes complainant's entitlement to compensatory damages.
See Sinott v. Department of Defense, EEOC Appeal No. 01952872 (September
19, 1996) (stating that a complainant's own testimony, along with the
circumstances of a particular case, can establish mental or emotional
harm).
While there is no dispute that complainant is entitled to non-pecuniary
damages, the parties differ on the appropriate amount necessary
to remedy the harm caused by the discrimination. Complainant
contends that she should receive $800,000.00. The agency offers
that $1,000.00 properly compensates complainant for any harm caused
by the discrimination. Initially, 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).
We note that the Commission has awarded compensatory damages in cases
somewhat similar to complainant's case in terms of the harm sustained.
See, e.g., Batieste v. Department of the Air Force, EEOC Appeal
No. 01974616 (May 26, 2000)($12,000.00 in non-pecuniary damages based
on complainant's and others' statements of emotional distress due to
agency's discriminatory termination); Jones v. Department of Defense,
EEOC Appeal No. 01973551 (April 14, 2000)($9,000.00 in non-pecuniary
damages based on complainant's statements of the interference with
family and marital relations, digestive problems, headaches, anxiety,
sleeplessness, and exhaustion resulting from the agency's discrimination);
Butler v. Department of Agriculture, EEOC Appeal No. 01971729 (April 15,
1999)($7,500.00 in non-pecuniary damages based on complainant's testimony
regarding his emotional distress); Hull v. Department of Veterans
Affairs, Appeal No. 01951441 (Sept. 18, 1998)($12,000.00 in non-pecuniary
damages based on complainant's testimony of emotional distress due to
retaliatory harassment); White v. Department of Veterans Affairs, EEOC
Appeal No. 01950342 (June 13, 1997)($5,00.00 in non pecuniary damages
based on emotional distress); Roundtree v. Department of Agriculture,
EEOC Appeal No. 01941906 (July 7, 1995)($8,000.00 in non-pecuniary damages
where medical evidence testimony was provided regarding complainant's
emotional distress, but the majority of complainant's emotional problems
were caused by factors other than the discrimination).
After analyzing the evidence which establishes the harm sustained by
complainant and upon consideration of damage awards reached in comparable
cases, the Commission finds that complainant is entitled to an award of
non-pecuniary damages in the amount of $5,000.00, instead of $1,000.00. We
find this case analogous to the above-referenced cases with respect to
the nature, severity and duration of the harm.
CONCLUSION
Accordingly, based on a thorough review of the record, and for the
foregoing reasons, we MODIFY the FAD, regarding its award of non-pecuniary
damages because it failed to provide the appropriate amount. We ORDER
the agency to comply with the Order below.
ORDER (C1092)
To the extent it has not already done so, the agency is ORDERED to take
the following remedial action:
1. To tender to complainant $5,000.00 in compensatory damages, within
sixty (60) days of the date on which this decision becomes final.
2. Complainant shall be promoted to a GS-12 position with an effective
date of February 7, 1993.
3. Complainant shall be awarded back pay, with appropriate interest,
until the time she is placed in a GS-12 position retroactive to February
7, 1993.
4. The agency is directed to post notification to all employees
at McClellan Air Force Base of their right to be free from unlawful
discrimination.
5. 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 must include evidence that the corrective action
has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its McClellan Air Force Base facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(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 29 C.F.R. � 1614.409.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 23, 2001
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. has occurred at the McClellan Air Force Base
in Sacramento, California (hereinafter "facility").
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
This facility was found to have discriminated and retaliated against an
employee. Accordingly, this facility was ordered to proffer this employee
"make whole" relief and award the employee a retroactive promotion, back
pay and compensatory damages. This facility will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, federal equal employment
opportunity law.
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614