01A13139
08-07-2002
Peggy A. Mounia, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Peggy A. Mounia v. Department of Justice
01A13139
August 7, 2002
.
Peggy A. Mounia,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A13139
Agency No. I986039
DECISION
Peggy M. Mounia (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning her entitlement to compensatory damages
incurred as a result of the agency's 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
On March 30, 1998, complainant filed a complaint alleging that she
was discriminated against on the bases of race (African-American)
and sex (female) when she was denied overtime opportunities.
After an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ determined that the agency had
discriminated against complainant, noting that a similarly situated
White, male co-worker was treated more favorably in regard to overtime
opportunities. The agency's final action implemented the AJ's decision
and awarded various remedial relief, including proven compensatory
damages. The agency advised complainant to submit supporting evidence
to establish that the agency's discriminatory action caused her to
incur damages.
Subsequently, on March 12, 2001, the agency issued a final agency decision
in regard to complainant's compensatory damages claim. Therein, the
agency noted that on July 12, 2000, complainant submitted a letter,
through her attorney, requesting compensatory damages in the amount of
$5,212.00. This request did not include any supporting documentation or
evidence, but rather simply included an itemization of costs complainant
allegedly incurred due to the agency's discrimination, as follows: long
distance telephone calls, $100.00; federal express, $28.00; priority mail,
$9.00; typing services, $75.00; loans and fees incurred, $5,000.00.
The agency further noted that on November 15, 2000, complainant was
provided another opportunity to submit supporting evidence for her claim.
According to the agency, on December 6, 2000, complainant's attorney
(CA) requested additional time to make this submission on December 6,
2000, which he was given. After receiving no response for several weeks
from complainant or CA, the agency contacted CA on January 17, 2001,
and was told that no further evidence would be provided.
The agency concluded that although complainant claimed various
out-of-pocket expenses, she failed to provide any evidence to establish
that she incurred those expenses, or that they were caused by the agency's
discriminatory actions. The agency therefore found that complainant
failed to establish her entitlement to a compensatory damages award.
On appeal, complainant provides paperwork concerning two loans she
took out in order to pay her attorney's retainer fee and explains that
the long distance calls she claimed as expenses were made to the EEO
counselor and to the EEOC headquarters in Washington, D.C. She further
notes that the postage expenses covered costs for mailing her complaint
form and related documents to the agency. In response, the agency asks
that its FAD be affirmed.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes her claim of unlawful discrimination may receive, in
addition to equitable remedies, compensatory damages for past and future
pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses
(i.e., pain and suffering, mental anguish). 42 U.S.C. � 1981a(b)(3).
For an employer with more than 500 employees, such as the agency, the
limit of liability for future pecuniary and non-pecuniary damages is
$300,000. Id. The Supreme Court has confirmed that the Commission
possesses the legal authority to require federal agencies to pay
compensatory damages. See West v. Gibson, 527 U.S. 212 (1999).
The particulars of what relief may be awarded, and the proof necessary to
obtain that relief, are set forth in detail in Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N-915.002 (July 14, 1992) (Compensatory Damages Notice).
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. See Damiano v. United States Postal
Service, EEOC Request No. 05980311 (February 26, 1999). The amount
awarded should reflect the extent to which the agency's discriminatory
action directly or proximately caused harm to complainant and the extent
to which other factors may have played a part. See Compensatory Damages
Notice, at 11-12. The amount of non-pecuniary damages should also
reflect the nature and severity of the harm to complainant, and the
duration or expected duration of the harm. Id. at 14. A complainant
is required to provide evidence that will allow an agency to assess the
merits of complainant's request for emotional distress damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
In the case at hand, despite receiving two opportunities to do so,
complainant failed to submit to the agency any evidence to establish
that she actually incurred the damages she claimed in her July 12,
2000 submission. She also submitted nothing to indicate that these
damages were caused by the agency's discriminatory conduct. Not only did
complainant fail to submit receipts or other documentation in support of
her claim, she failed to provide an affidavit or statement from herself
or any other witnesses to confirm that she incurred the claimed losses
and that they were related to the agency's discriminatory action.
Complainant submits, on appeal, a statement regarding her claimed
expenses and documentation which establishes that she took out two loans.
This information constitutes new evidence which cannot be considered
on appeal inasmuch as complainant had ample notice and opportunity to
submit documentation and/or a statement to the agency in support of her
compensatory damages claim, and has not proffered any reason whatever
why she did not do so. In these circumstances, we find that the agency
properly determined that complainant did not prove her entitlement to
compensatory damages. The agency's FAD is therefore AFFIRMED.
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
August 7, 2002
Date