01995576
06-07-2002
Pamela K. Shulte, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pamela K. Shulte v. United States Postal Service
01995576
06-07-02
.
Pamela K. Shulte,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995576
Agency No. 4-I-553-1018-96
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission REVERSES the agency's final decision.
ISSUES PRESENTED
The issues on appeal are 1) whether the agency properly determined that
complainant was not entitled to non-pecuniary damages for the Commission's
previous finding of discrimination; and 2) whether complainant is entitled
to attorney fees.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Distribution Clerk at the agency's Brainard, Minnesota facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on December 27, 1995, alleging that she was discriminated
against on the bases of sex (female), disability (depression),
and reprisal (complaining about the claimed harassment). After an
investigation, complainant requested a FAD on the existing record.
Thereafter, the agency issued a FAD finding that complainant failed
to timely seek EEO counseling on a portion of her complaint claiming
sexual harassment from April of 1993 to June of 1995, and that it had
not discriminated against her on her remaining claims of harassment and
reprisal. Complainant appealed the FAD to the Commission in Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998).<1> In that appeal, the Commission reversed the portion of the
FAD which found that complainant failed to timely seek EEO counseling
with regard to her allegation of sexual harassment. Further, the
Commission found that complainant had been discriminated against on the
bases claimed.
As part of the �make whole� relief order by the Commission, the
agency was directed to conduct a supplemental investigation regarding
complainant's claim for compensatory damages for the period of time
covered by the complaint, as well as her entitlement to attorney fees.
In compliance with the Commission's order, the agency completed a
lengthy three volume supplemental investigation. The agency also hired
a board-certified psychiatrist to evaluate complainant and review her
medical records. The doctor indicated that when complainant described
the events that led to the charges of discrimination, he concluded that
complainant had not experienced any substantial negative effect on her
pre-existing conditions.<2> The agency then issued a FAD finding that
complainant had not shown a nexus between the claimed discrimination
and exacerbation of her pre-existing condition. The agency found that
while there was affidavit evidence in the supplemental investigation of
the impact of emotional distress upon complainant, this evidence flew
in the face of the medical evaluation provided by its board certified
psychiatrist. The agency also denied complainant the $22,500 in legal
and paralegal fees and costs she requested. Specifically, the agency
found that complainant's representative of record was not a licensed
attorney, and was therefore not entitled to the $12,500 in fees requested.
Complainant initially estimated her legal expenses, including paralegal
services to be $10,000, however neither complainant nor her attorney
provided documentation to support this fee request, therefore, the agency
denied the request.
On appeal, complainant narrowed the scope of relief sought and indicated
that she was not appealing the agency's findings regarding restoration of
leave or medical expenses. Complainant focused instead on the agency's
denial of non-pecuniary damages. Complainant contended that the evidence
demonstrated that the agency's actions rose to the level of creating a
hostile work environment and caused her emotional distress. Further,
complainant contended that concrete psychological harm was not required
by Title VII for an award of damages, and that her own affidavit as well
as those of family and friends were sufficient to sustain an award for
emotional distress. The appeal indicated that complainant also requested
$13,233.70 in attorney's fees and costs associated with the subsequent
supplemental investigation ordered in EEOC Appeal No. 01972699, supra,
as well as the instant appeal.
In response, the agency contended that complainant did not preserve any
issues for appeal because in her supporting brief she indicated that
the Commission should ignore pp. 5-25 of the FAD, which included the
non-pecuniary damages she requested. In the alternative, the agency
contended that emotional harm cannot be presumed and that complainant
failed to properly establish that she suffered any harm causally
related to the discrimination. The agency further contended that since
complainant waived all claims for medical expenses arguably related,
from her perspective, to many of the cited manifestations of emotional
harm, she is not entitled to non-pecuniary damages. The agency also
contended that while complainant was a prevailing party in EEOC Appeal
No. 01972699, she did not have counsel with respect to that appeal, and
did not need counsel when she provided information during the supplemental
investigation on compensatory damages.<3> The agency also argued that
the instant attorney fee petition was premature as complainant is not
a prevailing party in regard to the instant appeal.
FINDINGS & ANALYSIS
A. Compensatory Damages
Complainant must present objective evidence that the agency's
discriminatory actions caused her to suffer the harm complained of.
See Smith v. Department of Defense, EEOC Appeal No. 01943844 (May 8,
1996). In Carle v. Dept. of the Navy, EEOC Appeal No. 01922369 (January
5, 1993), the Commission explained, that "objective evidence" of any
pecuniary and non-pecuniary damages could include a statement by the
complainant explaining how he or she was affected by the discrimination.
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could also
submit documentation of medical or psychiatric treatment related to the
effects of the discrimination. Id.
The statute authorizing compensatory damage awards limits the total
amount that can be awarded 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 individuals employed by respondent employer. The limit for an
employer with more than 500 employees, such as the agency, is $300,000.
42 U.S.C. � 1981(b)(3)(D).
There is no precise formula for determining the amount of damages for
non-pecuniary losses except that the award should reflect the nature and
severity of the harm and the duration or expected duration of the harm.
Loving v. Department of Treasury, EEOC Appeal No. 01955789 (August 29,
1997). It should likewise be consistent with amounts awarded in similar
cases. Hogeland v. Department of Agriculture, EEOC Appeal No. 01976440
(June 12, 1999).
In cases where the Commission awarded non-pecuniary damages of $40,000
and above, the evidence of record tended to show that the emotional
or psychological injuries which resulted from the agency's actions
had either permanent or substantially long term effects, or were so
catastrophic that no inquiry into long term effects was necessary.
See Mack v. Department of Veterans Affairs, EEOC Appeal No. 01983217
(June 23, 2000) ($186,000 where individual was left homeless for two
years as a result of discriminatory termination); Cook v. United States
Postal Service, EEOC Appeal No. 01950027 (July 17, 1998) ($130,000 awarded
where 14-months of a hostile work environment caused the individual to
develop atypical paranoid disorder, leaving her unable to work).
Non-pecuniary Damages
Complainant did not request a specific amount in non-pecuniary damages,
but requested compensation for the emotional distress she suffered as
a result of the discrimination. The agency did not award complainant
damages, and reasoned that the evaluation provided by its board
certified psychiatrist indicated that complainant had not experienced
any substantial negative affect on her pre-existing conditions because
of the discrimination, and that any mental anguish and emotional
distress as related to the discriminatory conduct were nonexistent.
Further, the agency found that the affidavit evidence included in the
supplemental investigation of the impact of emotional distress upon
complainant, conflicted with the medical evaluation provided by the a
board certified psychiatrist. We disagree with the agency's reasoning,
and find that complainant is entitled to a reasonable amount in damages.
We note that the Commission applies the principle that "a tortfeasor
takes its victims as it finds them." Wallis v. U.S. Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995). 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. Wallis v. United States Postal Service, EEOC Appeal
No. 01950510 (November 13, 1995); Finlay v. U.S. Postal Service, EEOC
Appeal No. 01942985 (April 29, 1997).
We also note that the amount of compensatory damages awarded by
the Commission has varied according to the injury sustained by the
complainant. See, e.g., 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); Hull
v. Department of Veterans Affairs, EEOC 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) ($5,000.00 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); Terrell v. Dept. of Housing and Urban Development,
EEOC Appeal No. 01961030 (October 25, 1996) ($25,000 award for emotional
harm where discriminatory activity exacerbated, for at least two years,
problems unrelated to discrimination); Smith v. Dept. of Defense, EEOC
Appeal No. 01943844 (May 9, 1996) ($25,000 award for emotional harm, where
many aggravating factors not related to discrimination also were present).
In her statement supporting non-pecuniary damages, dated September
25, 1998, complainant described the stress and trauma she suffered
as a result of being harassed by her supervisor. Complainant also
indicated that her personal relationships had been devastated and some
were destroyed as a result of the harassment. Complainant indicated
that her ex-husband could not understand why she could not prevent the
harassment from happening and eventually thought that she was the cause
of the harassment. Complainant also indicated that as a result of the
harassment she began drinking more heavily. The record also included
submissions from complainant's co-workers, and ex-husband describing
complainant's condition when the claimed discrimination occurred.
Complainant's co-workers described instances where complainant was
embarrassed and humiliated by management. These instances included
the disclosure of confidential medical information about complainant's
condition to employees; clipped magazine ads for the sale of beer and
alcohol placed in complainant's work area; complainant being described
as a troublemaker and a man chaser after she complained about the
harassment; and management not following through to determine if the
harassment ceased. Complainant's ex-husband also attributed the claimed
harassment as the cause of complainant's dramatic mood changes. He also
indicated that complainant became depressed and withdrawn and that her
behavior became very unpredictable.
The record showed that complainant appeared to have a pre-existing
condition consisting of alcohol abuse since age 13, with one inpatient
alcohol treatment admission in 1986. The record also showed that
complainant suffered from a bipolar disorder with multiple episodes
of depression with a longstanding personality disorder, mixed type
with borderline and passive dependent features. After reviewing
complainant's medical history and meeting with her for two hours,
the agency psychiatrist concluded that there was no evidence that the
harassment as complainant described had any impact on her pre-existing
conditions. In contrast, complainant's own psychiatrist, who regularly
saw complainant in 1997 and 1998, indicated that complainant has had
significant difficulties in part related to the tremendous stress that
she experienced regarding sexual harassment and other issues in the work
place. Further, there is evidence in the record that complainant received
counseling from a center that assisted victims of sexual assault and
harassment in 1995, and that complainant continued to receive treatment.
The record also contained information that complainant was still in
treatment in 1998. Based on this evidence we find that complainant has
established a causal nexus between the discrimination that occurred and
the emotional harm she suffered.
Taking into account the evidence of non-pecuniary damages submitted
by complainant, the Commission finds that complainant is entitled to
non-pecuniary damages in the amount of $17,500.00. We note that this
sum is meant to compensate complainant for the emotional distress she
suffered, which was caused entirely by the agency's discriminatory
actions. Finally, this amount meets the goals of not being motivated
by passion or prejudice, not being "monstrously excessive" standing
alone, and being consistent with the amounts awarded in similar cases.
See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989) at 574.
B. Attorney Fees and Costs
On appeal, complainant requested $13,233.70 in attorney's fees
and costs incurred from September 1998 through July 22, 1999, and
submitted an accounting of the nature of the work performed and the time
spent performing the tasks identified.<4> The agency contended that
complainant did not utilize the services of an attorney for her original
complaint. The starting point for determining the amount of an award of
reasonable attorney's fees is the number of hours reasonably expended
multiplied by a reasonable hourly rate. See 29 C.F.R. 1613.271(d)(2)(1);
Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). The attorney
requesting the fee award has the burden of proving, by specific evidence,
her entitlement to the requested award. This can be done by producing
satisfactory evidence, in addition to the attorney's own affidavit,
that the requested rates are consistent with those in the community
for similar services by attorneys with comparable skill, experience,
and reputation. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984);
Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980). In response to
the agency's contention, we note that complainant utilized the services
of a law firm to prepare her submissions showing her entitlement to
compensatory damages to the agency. In such instances, the Commission
has found that a prevailing complainant is presumptively entitled to
fees and costs unless special circumstances render such an award unjust.
Further, special circumstances are narrowly construed and do not include
the argument that complainant did not need an attorney. See EEOC
Management Directive 110 on Presumption of Entitlement to Attorney's
Fees and Costs, Chap.11, p. 11-2. We find no evidence in the record
that an award of fees and cost would be unjust; therefore, complainant
is entitled to attorney fees for the legal services rendered during the
supplemental investigation as complainant is a prevailing party.
We now address complainant's request for attorney's fee related to the
instant appeal. While it may initially have been premature, we now
consider it timely as complainant was found to be a prevailing party.
Therefore, complainant is entitled submit documentation to support
reasonable attorney's fees and costs as described in the order below.
CONCLUSION
Accordingly, 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 reverse 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:
1. The agency shall pay complainant compensatory damages in the amount
of $17,500.00. The agency shall tender full payment to complainant
no later than thirty (30) calendar days after the date on which this
decision becomes final;
2. The agency shall pay complainant's reasonable attorney's fees incurred
in the processing of her claim for compensatory damages. 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(2) within sixty days of receiving the verified
statement of fees. The agency shall then issue a final agency decision
determining the amount of attorney fees and costs due. The decision
shall include a notice or right to appeal to the EEOC along with EEOC
Form 573, Notice of Appeal/Petition and shall include the specific
reasons for determining the amount of the award.
3. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
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
____06-07-02______________
Date
1Since this appeal was filed, complainant changed her last name
from Wibstad to Schulte.
2The record indicated that complainant was diagnosed as having a bipolar
disorder with multiple episodes of depression with a longstanding
personality disorder, mixed type with borderline and passive dependant
features.
3While complainant did not sufficiently delineate the work performed
by her attorneys in the underlying complaint, there is evidence in the
record showing that complainant may have retained the services of a law
firm during the processing of her original appeal.
4Since complainant did not appeal the agency's denial of $12,500 in
fees incurred by her non-attorney representative, we will not revisit
the issue here.