01A02073
07-24-2003
Patsy L. Guajardo-Hartley, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Patsy Guajardo-Hartley v. Department of Agriculture
01A02073
07-24-03
.
Patsy L. Guajardo-Hartley,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A02073
Agency Nos. 940725, 940826, 941114, 941128, 941227, 950306, 950421,
950614, 950905, 951208
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision (FAD)
dated December 17, 1999, in which the agency found that complainant was
not entitled to an award of compensatory damages. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. At issue in this case is whether an
evidentiary record that was used to support an $86,000+ compensatory
damages award in a previous decision can also support a damages award
for ongoing discrimination that occurred after the incidents at issue
in that earlier decision.
BACKGROUND
The agency employed complainant as a supervisory plant protection
and quarantine officer at its port inspection facilities in Honolulu,
Hawaii. Over a period of several years, she filed numerous complaints,
including complaint no. 931012 and the ten complaints referenced above,
in connection with the terms and conditions of her employment.
THE EARLIER DECISION
Complainant filed complaint no. 931012 in July 1993, concerning conduct
that had occurred several months earlier, including the agency's
failure to allow her to participate in the Women's Executive Leadership
Program, derogatory remarks being made by a supervisor, and continuous
sexual remarks and abusive language being used by a supervisor and
other male employees. The Commission adopted the agency's finding of
discrimination with respect to these incidents and ordered the agency
to award complainant compensatory damages. Upon complainant's request
for reconsideration, the Commission authorized an award of $86,592.83, of
which $85,000 was for nonpecuniary losses and the remaining $1,592.83 was
for medical expenses incurred between July and September 1993, and also
between April 1995 and June 1996. Hartley v. Department of Agriculture,
EEOC Request No. 05990563 (December 27, 2002).
THE CURRENT APPEAL
In the above-referenced complaints, complainant claimed that the agency
discriminated against her on the bases of sex, national origin (Hispanic),
disability (residual effects of back injury) and reprisal with respect to
working conditions, performance appraisals, and job duties from February
1994 to December 1996. The incidents complained of were identified
as follows:
Complaint No. 940725: Failure to accommodate physical disability and
failure to assign duties necessary to obtain high performance appraisal
rating, dates unspecified.
Complaint No. 950306: Awarding her fully successful appraisal instead
of outstanding, 9/30/94, and failure to accommodate disability by change
of duties, dates unspecified.
Complaint No. 950905: issued letter of reprimand on 6/7/95 and charged
leave for late arrival.
Complaint No. 951208: supervisor inserted wrong information on a form,
date unspecified.
Complaint No. 940826: management failed to tell her about a change in
her assignment, July 25-26, 1994.
Complaint No. 941114: subjected to harassment when co-worker filed
frivolous complaints against her, November 8, 1994.
Complaint No. 941128: agency's refusal to pay her parking tickets
constituted act of harassment, September 27 and 28, 1994.
Complaint No. 941227: placement on AWOL for 30 minutes, not issued a lap
top computer, and not provided with a parking space, dates unspecified.
Complaint No. 950421: accused of arriving late to work and leaving early,
date unspecified.
Complaint No. 950614: overheard a co-worker use a derogatory term in
the workplace, April 5, 1995.
In March 1996, the agency dismissed complaint nos. 940826, 941128, 941227,
950306, 950421, and 950614 for failure to state a claim. Complainant
appealed the agency's dismissal of these complaints to the Commission,
while the agency continued to process the other four complaints.
On December 18, 1996, the parties entered into the first of three
settlement agreements. Paragraph 10 of this agreement provided, in
pertinent part:
The agency agrees to pay proven compensatory damages. Within 60 days from
the signing of this agreement, [complainant] agrees to state a claim for
compensatory damages with the employee complaints adjudication division,
office of operations, USDA. Adjudication division will investigate
complainant's claims and make a determination on the amount of damages.
If damages are awarded, the agency will expeditiously pay this amount
to complainant. . . .
Appeal Exhibit (AE) 21. Neither party notified the Commission of the
December 1996, settlement agreement. In Patsy L. Guajardo v. Department
of Agriculture, EEOC Appeal No. 01963770 (April 15, 1997), the Commission
ordered the agency to process the dismissed complaints, which were
joined with the four complaints already in process. The Commission's
decision prompted the parties to amend the agreement on July 8, 1997.
The purpose of the amendment was to resolve the identified complaints,
as well as all other formal and informal complaints, other than those
pending on appeal. The amended agreement required the agency to reimburse
complainant $20,224.63, for the costs of relocating from Honolulu to
Nogales, Arizona.
For reasons that were not made clear in the record, several outstanding
issues remained unresolved. Consequently, the parties entered into
a third settlement agreement, which was dated December 2, 1997.
This agreement provided, in pertinent part:
�1 The agency shall pay proven compensatory damages to complainant .
Complainant will file a single compensatory damage claim for all cases
specified herein and those covered in the December 18, 1996 agreement,
as amended.
�8 The agency agrees to pay complainant pecuniary damages not to
exceed $20,000 for reimbursement for medical bills paid by complainant.
Complainant will provide documentation to support her claim. The date
for reimbursement will cover costs incurred between July 25, 1994,
and December 1, 1997.
The agency completed its processing of complainant's request for damages,
and on December 17, 1999, it issued its final decision, in which it
found that it was not required to award complainant any damages at all.
At the outset, the agency stated that its decision would deal exclusively
with the compensatory damages associated with the settlement agreements.
With respect to complainant's claim for past pecuniary losses, the agency
found that complainant submitted extensive documentation of expenses
for medical treatment, but failed to provide evidence establishing the
causal connection between those expenses and the agency's discriminatory
actions during the period in question. Complainant claimed future
pecuniary losses and nonpecuniary losses in excess of $3 million dollars,
which the agency also denied. In particular, the agency noted that the
evidence that complainant did submit was the same evidence that was used
to support the earlier damages award in complaint no. 931012.
On appeal, complainant challenges the agency's decision on the merits.
She maintains that the various doctors' letters, medical reports,
invoices, and bills she submitted did establish the necessary causal
connection between the agency's conduct at issue in the above-referenced
complaints and the harm she suffered, as required by the December 1997
settlement agreement.
ANALYSIS AND FINDINGS
Section 102(a) of the Civil Rights Act of 1991 authorizes the Commission
to award compensatory damages as part of make-whole relief for intentional
discrimination. 42 U.S.C. � 1981a; West v. Gibson, 527 U.S. 212,
217 (1999). To receive an award of compensatory damages, complainant
must demonstrate that she has been harmed as a result of the agency's
discriminatory actions, and must also establish the extent, nature,
severity, and duration of that harm. Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice
No. 915.002 (July 14, 1992), at 8, 11-12, 14. Evidence establishing the
necessary causal connection may include statements from complainant and
others, including family members, friends, and health care providers,
concerning any pecuniary and non-pecuniary losses incurred as a result
of the acts at issue in the various complaints. See generally Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).
CAUSATION
After reviewing the investigative files in the instant appeal and
in EEOC Request No. 05990563, we find, as did the agency, that the
various affidavits, hearing transcripts and medical reports that
were used to support the compensatory damages award in that decision
are duplicated in the case before us. Supplemental Investigative
Report - Compensatory Damages, Complaint No. 931012 (SIR93), Exhibits
(Exs.) B2-B11; Compensatory Damages Investigative File (CDIF), Complaint
Nos. 940222, et. al., Exs. C4, C10. Those documents include:
The hearing testimony of a psychiatrist, given at a hearing before the
Commission on December 16, 1994, concerning complaint no. 931012; SIR93,
Ex. B2; CDIF, Ex. C10.
An undated statement from complainant's husband, sworn to on August 9,
1996; SIR93, Ex. B3; CDIF, Ex. C10.
A statement from complainant's mother, dated December 3, 1995, and sworn
to on August 8, 1996. SIR93, Ex. B4; CDIF, Ex. C10.
A statement from R, a nurse who had known complainant since 1991, dated
December 4, 1995, and sworn to on August 5, 1996. SIR93, Ex. B5; CDIF,
Ex. C10.
A statement from D, complainant's landlady and friend since1988, dated
December 1, 1995, and sworn to on August 10, 1996. SIR93, Ex. B6; CDIF,
Ex. C10.
A statement from M, another friend who had known complainant since 1994,
dated November 30, 1995, and sworn to on August 17, 1996. SIR93, Ex. B7;
CDIF, Ex. C10.
A medical report from a Dr. P, dated April 8, 1996. SIR93, Ex. B8;
CDIF, Ex. C4.
A medical note from Dr. P dated September 14, 1994. SIR93, Ex. B9; CDIF,
Ex. C4.
A medical report from Dr. P dated October 26, 1994. SIR93, Ex. B10;
CDIF, Ex. C4.
A medical note from Dr. P dated February 25, 1995. SIR93, Ex. B11;
CDIF, Ex. C4.
These documents establish that complainant was diagnosed with major
depression and various stress-related illnesses. In light of the
Commission's findings in EEOC Request No. 05990563, that this evidence
supported an $85,000 nonpecuniary compensatory damages award in
connection with incidents at issue in complaint no. 931012, we must now
determine whether this same evidentiary record establishes the necessary
causal connection between complainant's injuries and the conduct at
issue in the above-referenced complaints, which were the subject of the
December 1997 settlement agreement.
Complainant's husband stated that he and complainant were unable
to enjoy a normal relationship because of the situation at work.
Complainant's mother stated that the harassment to which complainant
had been subjected at work had a detrimental effect on her mental and
emotional well-being. Similar assessments were voiced by R, D, and
M. These lay witnesses gave their statements in December 1995, long after
the incidents at issue in the instant appeal and EEOC Request No. 05990563
took place. The psychiatrist who testified at the December 1994 hearing
stated that complainant had begun experiencing work-related stress,
depression, sleeplessness, loss of appetite, loss of emotional control,
and difficulty relating to others since January or February 1993, and that
her condition was mild early on. The record indicates that complainant's
condition worsened between 1994 and 1996, when the bulk of the incidents
at issue in the instant appeal had been occurring. In April 1996, Dr. P
diagnosed complainant as suffering from major depression. His concluding
paragraph read, �in summary, the harassment, discrimination and problems
[complainant] perceives occurred at her workplace are consistent with
causing severe impairment of all activities of daily living as well as
inducing depression.� None of the witnesses, medical or lay, referred
specifically to incidents identified in EEOC Request No. 05990563, or
in the instant appeal, but only to what they characterized as �ongoing�
discrimination and harassment. After reviewing these documents, we find
nothing in the record that ties the harm described in CDIF Exhibits C4 and
C10 exclusively to the incidents at issue in EEOC Request No. 05990563. We
therefore find that the harm suffered by complainant was caused, in part,
by the conduct at issue in the above-referenced complaints as well as
in complaint no. 931012.
Other factors contributed to her condition, however. The medical reports
indicated that complainant's depression and stress-related illnesses
resulted not only from the acts that gave rise to the above-referenced
complaints, but also from the debilitating residual effects of the
injuries that she sustained an on-the-job in November 1993. CDIF, Ex. C5.
The long-term effects of that injury were not apparent at the time the
events at issue in EEOC Request No. 05990563 took place, and did not come
to light until September 1994, well over a year after she filed complaint
no. 931012. Between September 1994 and April 1996, complainant had been
on a variety of medications, including acetaminophen with codeine and
ultram (pain killers), glucophage and glucotrol (medication for diabetes),
and synthroid (thyroid medication). CDIF, Ex. C5.
CALCULATION
The statute authorizing compensatory damages awards limits the total
amount that can be awarded each complaining party for future pecuniary
and nonpecuniary losses to $300,000. 42 U.S.C. � 1981(b) (3) (D).
PAST PECUNIARY LOSSES
The amount of past pecuniary losses can be determined by receipts,
records, bills, cancelled checks, confirmation by other individuals, or
any other proof of actual out-of-pocket losses and expenses. EEOC Notice
No. 915.002 (July 14, 1992), at 9. In addition to experiencing stress
from work, complainant had developed diabetes and had sustained the
on-the-job injury in November 1993, and another injury in July 1995,
and had been taking medications for these conditions as well as for
depression. CDIF, Exs. C4, C10. While the investigative file includes
a great deal of medical bills and receipts, the bulk of those documents
pertained to medication and treatment she received for her physical
ailments rather than for the depression that resulted from the specific
acts at issue in the above-referenced complaints. The only expenses
incurred by complainant that can definitively be tied to those complaints
are out-of-pocket costs in the amount of $384 for psychotherapy and
various antidepressants, such as Ambien, Pamelor, and Nortriptyline, that
complainant incurred between July 25, 1994, and December 1, 1997. CDIF,
Exs, C2, C5. We will direct the agency to award these expenses.
FUTURE PECUNIARY LOSSES
Future pecuniary losses are out-of-pocket expenses that are likely
to be incurred after the resolution of the complaint. EEOC Notice
No. 915.002, supra. Complainant makes a claim for future medical costs in
the amount of $266,400, future prescriptions in the amount of $235,386,
and future medical visits in the amount of $188,000. However, she has
not presented any documents or testimony establishing that she will,
in fact, be incurring such expenses in the future. We therefore decline
to award complainant future pecuniary damages as they are speculative
and unsupported by the evidence of record.
NONPECUNIARY LOSSES
There is no precise formula for determining the amount of damages for
nonpecuniary 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 the 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 14, 1999). The award of nonpecuniary damages in
this case is governed by our decision in EEOC Request No. 05990563.
That decision states, in pertinent part:
Given the severity and the three year duration of the psychological
and physical injuries experienced by complainant and the awards the
Commission has made in similar cases, we find that complainant is
entitled to non-pecuniary damages in the amount of $85,000. This takes
into account all of complainant's emotional and physical problems and
the fact that the vast majority of these problems were caused by the
agency's discriminatory actions. The Commission finds that the amount
of this award is not motivated by either passion or prejudice; is not
"monstrously excessive" standing alone; and is not inconsistent with
amounts awarded in similar cases. [citations omitted].
Id., at 8.
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) (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. Wallis, EEOC Appeal No. 01950510 (citing Maurer v. United
States, 668 F.2d 98 (2d Cir. 1981); Finlay v. U.S. Postal Service,
EEOC Appeal No. 01942985 (April 29, 1997).
Ward-Jenkins v. Department of the Interior, EEOC Appeal No. 01961483
(March 4, 1999). If the agency can prove that complainant's pre-existing
condition inevitably would have worsened even in the absence of
discrimination, the size of the damages award will be reduced.
Durrant v. Department of Veterans Affairs, EEOC Appeal No. 01971885
(September 15, 2000).
The complainant in Wallis v. U.S. Postal Service, EEOC Appeal
No. 01950510, supra, had a history of depression before being subjected
to discriminatory acts. The complainant had experienced recurring
episodes of depression after the incidents in question, and would need
treatment for another five years. On that basis, the Commission awarded
the complainant $50,000 in nonpecuniary damages.
In Smith v. Department of Defense, EEOC Appeal No. 01943844 (May 8,
1996), the Commission awarded the complainant $25,000 in nonpecuniary
compensatory damages after finding that she had been subjected to sexual
harassment between 1990 and 1993. She had been diagnosed with depression
many years before her employment with the agency, but had never been
hospitalized prior to the incidents that gave rise to her complaint.
She was hospitalized four times between April and December 1992, as a
result of the agency's conduct, however, the trauma that complainant
experienced did not last beyond the cessation of the harassment.
Finally, in Terrell v. Department of Housing and Urban Development,
EEOC Appeal No. 01961030 (October 25, 1996), request for reconsideration
denied EEOC Request No. 05970336 (November 20, 1997). the Commission also
awarded complainant $25,000 in non-pecuniary damages, in connection
with the depression he experienced after not being selected for a
particular position. The Complainant had experienced numerous problems
outside the workplace before the nonselection, including bankruptcy,
marital difficulties, and his wife's illness. The Commission found that
the nonselection exacerbated the complainant's pre-existing emotional
and psychological problems, but to a limited extent. In awarding the
complainant $25,000, the Commission took into consideration the presence
of various outside factors and two-year duration of the complainant's
harm.
Complainant, like the complainants in Wallis, Terrell, and Smith, had a
preexisting depression. Unlike those cases, however, her depression
was caused not by factors outside of work, but by the agency's
prior discriminatory conduct, for which she was awarded $85,000 in
nonpecuniary damages. As previously noted, complainant's depression
intensified between 1993 and 1996, due to the agency's actions in 1994
and 1995 as well as to the debilitating effects of her physical injuries.
We therefore find that an intervening factor was present in this case,
just as in Terrell. In December 1996, complainant transferred out of
Honolulu and away from the work situation where her discrimination
complaints arose. She was still taking antidepressants one year
later. Beyond that, the record is unclear. While complainant has shown
that the harm she experienced lasted longer than the harm experienced
by the complainant in Smith, she has not shown that she experienced
the same duration of harm that justified the $50,000 award in Wallis.
After considering these particular circumstances, we will direct the
agency to award complainant an additional $30,000 which represents
compensation for the harm that complainant suffered in connection with
the incidents at issue in the above-referenced complaints. The medical
reports are sufficient to support an inference that, due to complainant's
physical ailments, which became more acute after the events at issue in
complaint no. 931012, her depression would inevitably have worsened even
if she had not been subjected to discrimination. A higher award would
therefore not be appropriate, notwithstanding the Commission's decision
in Request No. 05990563.
CONCLUSION
Based upon the record, and for the forgoing reasons, the Commission
finds that the agency is liable to complainant for compensatory damages
in the amount of $30,384.
ORDER
In accordance with Paragraphs (1) and (8) of the settlement agreement
signed by complainant and the agency on December 4, 1997, the agency shall
issue complainant a check for $30,384, to cover nonpecuniary damages
and medical expenses incurred by complainant between July 25, 1994,
and December 1, 1997. 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 verifying 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
__07-24-03________________
Date