01a40175
04-06-2005
Nancy Parlato, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Nancy Parlato v. Department of Homeland Security
01A40175
April 6, 2005
.
Nancy Parlato,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A40175
Agency No. TD-94-0202
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning the amount of compensatory damages to which she is entitled
as a result of a finding of discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq.
ISSUE
The issue on appeal is whether the agency properly determined that
complainant was entitled to payment of $17,000.00 in compensatory damages.
BACKGROUND
Complainant, a Supervisory Customs Inspector employed at the agency's San
Ysidro Port of Entry, San Ysidro, California filed a formal complaint
dated July 11, 1994, alleging that she was subjected to discrimination
based on sex and in reprisal for prior protected activity when she was
disciplined in April 1994.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision on November 8, 1999, finding that complainant was subjected
to discrimination on the bases of sex and reprisal.
The agency issued a December 28, 1999 final order declining to fully
implement the AJ's finding that the agency discriminated against
complainant and simultaneously appealed to the Commission.
In Parlato v. Department of the Treasury,<1> EEOC Appeal No. 07A10100
(September 12, 2002), the Commission found that the AJ's decision was
supported by substantial evidence and that the AJ correctly applied the
appropriate laws and regulations. The Commission reversed the agency's
final order and remanded the matter for corrective action. Among the
corrective action specified, the agency was ordered:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to
submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993)) and request objective evidence from complainant in support of
her request for compensatory damages within forty-five (45) calendar
days of the date complainant receives the agency's notice. The agency
shall provide complainant with sufficient explanation and specificity to
allow her to reasonably respond to the agency's request. Upon receipt
of complainant's submission, the agency shall conduct a supplemental
investigation to determine the amount of compensatory damages due to
complainant, if any, and issue a final agency decision. The supplemental
investigation and final agency decision shall be completed within 60 days
of the date the agency receives complainant's submission of objective
evidence in accordance with 29 C.F.R. 1614.108(f). A copy of the final
agency decision and supplemental investigation must be transmitted to
complainant. A copy of the final agency decision must be submitted to
the Compliance Officer, noted below[.]
In a January 6, 2003 letter from complainant's attorney addressed to
the agency representative, complainant states that she is trying to
�settle any claims which arose from the discriminatory conduct of the
[agency].� Complainant states that she �sustained serious emotional
and physical damage�and requests $300,000.00 in compensatory damages.
She states that as a direct result of the discrimination, she �developed
chronic insomnia which persists to this day.� She notes that her personal
physician documented the insomnia as being work related and commencing
in 1992. She also states that she recently discovered that an ex-employee
of the agency started a website which documents some of the details of
her EEO case which she states caused her �severe emotional distress.�
She also states that her �stomach twists in knots and her hands shake.�
She states that she suffers from migraine headaches which have forced
her to seek emergency room care. She also explains that she suffers
from lost energy, anxiety attacks, and has fear of being reprimanded
or terminated. She also states that the fear of termination affected
her family life. She states that her �lethargy and depression made her
irritable with her husband and children� and notes that �[f]rustrations
with her work situation caused her to react negatively at home.� She
notes that �[m]arital relations ceased for long periods� and explains
that she was not able to spend as much time with her family as a result
of the discrimination. Additionally, complainant states that she
sought treatment from a psychologist to help deal with these problems
but had to stop this course of treatment as her regular doctor's bills
and attorney's fees increased. She notes that at one point �her hair
began to fall out in clumps.�
The agency issued a final decision on September 10, 2003, finding that
complainant was entitled to $17,000.00 in compensatory damages.<2>
Specifically, the agency concluded that there was evidence that some
of the emotional stress suffered by complainant was caused by her being
placed under her former supervisor in January 1994, which the agency noted
was not the subject of the present complaint. Additionally, the agency
stated that any harm suffered by complainant as a result of her 1992 EEO
settlement agreement is not at issue. The agency noted that complainant
claims insomnia, anxiety attack, lethargy, fatigue, depression, loss
of marital relations, migraines, loss of hair, and financial strain.
The agency acknowledges that discrimination played a part in causing
the harm complained of, and notes that many of complainant's physical
manifestations remain today, including her insomnia, fatigue, anxiety
attacks, and migraines. Based on the evidence submitted, the agency
decided that an award of $17,000.00 in non-pecuniary damages was
appropriate. The agency noted that complainant did not submit any
evidence of pecuniary losses.
On appeal, complainant contends that she never received notice from the
agency regarding her right to submit objective evidence of compensatory
damages and was thus never provided an explanation of what information
to submit. She states she did not submit any medical or psychological
reports or bills incurred because she misunderstood the Commission's Order
in EEOC Appeal No. 07A10100. She states that the misunderstanding of the
Commission's Order by her and her attorney resulted from a statement by
the AJ during her initial hearing that another hearing would be necessary
to determine damages should there be a ruling in her favor.
The record contains a December 18, 1995 letter from complainant's doctor
to the AJ certifying that complainant sought medical advice for treatment
of insomnia since 1992. The doctor states that these symptoms have been
exacerbated by job related stress.
The record contains a January 2, 1996 letter from complainant's husband
stating that as a result of the agency's actions complainant has become
�more nervous and impatient.� He notes that complainant suffers from
insomnia which he states is very �frustrating and debilitating.� He
states that they do not do nearly as many activities as they used to
because complainant �is always so tired or is suffering from migraine
headaches that are triggered by stress and lack of sleep.�
When contacted by the Commission, the agency reported it had no evidence
it provided a notice to complainant of her right to submit objective
evidence in support of her request for compensatory damages.
ANALYSIS
When discrimination is found, the agency must provide the complainant
with a remedy that constitutes 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); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July
21, 1994). Pursuant to section 102(a) of the Civil Rights Act of 1991,
a complainant who establishes unlawful intentional discrimination under
either Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. or Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. may
receive compensatory damages for past and future pecuniary losses
(i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain
and suffering, mental anguish) as part of this "make whole" relief.
42 U.S.C. � 1981a(b)(3).
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. den.,
EEOC Request No. 05940927 (December 11, 1995); Enforcement Guidance:
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.
Upon review, we find that the agency failed to show it provided
complainant with a notice of her right to submit objective evidence,
failed to show it requested this evidence from complainant and failed to
show it provided sufficient explanation and specificity to allow her to
reasonably provide objective evidence regarding compensatory damages.
As there is no evidence complainant was given appropriate instructions
for presenting her evidence regarding compensatory damages, we will
remand this case for further processing in accordance with the Order
listed below.
Accordingly, the agency's final decision regarding compensatory damages
is VACATED and the matter is REMANDED for further processing in accordance
with the Order listed below.
ORDER
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall give complainant a notice of her right to submit
objective evidence and request objective evidence from complainant in
support of her request for compensatory damages within forty-five (45)
calendar days of the date complainant receives the agency's notice.
The agency shall provide complainant with sufficient explanation and
specificity to allow her to reasonably respond to the agency's request.
Upon receipt of complainant's submission, the agency shall conduct a
supplemental investigation to determine the amount of compensatory damages
due to complainant, if any, and issue a decision on compensatory damages.
The supplemental investigation and agency decision shall be completed
within 60 days of the date the agency receives complainant's submission
of objective evidence. A copy of the agency decision on damages and
supplemental investigation must be transmitted to complainant. A copy
of the agency decision on damages must be submitted to the Compliance
Officer, noted below.
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
April 6, 2005
__________________
Date
1The function of the agency has moved from
Department of the Treasury to Department of Homeland Security.
2In its September 10, 2003 decision, the agency also awarded $13,090.00 in
attorney's fees. As complainant did not challenge the award of attorney's
fees, the Commission will not address the award of attorney's fees in
this decision.