01A03585
02-20-2003
Surjit Bains, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Surjit Bains v. United States Postal Service
01A03585
February 20, 2003
.
Surjit Bains,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03585
Agency No. 4-F-945-1210-95
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her claim for compensatory damages. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405. On appeal, complainant contends
that the $66,350.00 in damages awarded by the agency was insufficient to
compensate her for the harm she suffered from her improper termination in
June 1995 until her reinstatement in March 1998, and requested $300,000.00
in compensatory damages. Complainant also contends that the agency
deducted $5,980.00, plus interest, from her back pay award for the time
period from August 27, 1995 to March 2, 1996, for unemployment benefits
she received, and failed to fully compensate her for leave and back
pay from October 13, 1997 through January 13, 1998. For the following
reasons, the Commission modifies the agency's final decision.
On August 29, 1997, an EEOC Administrative Judge (AJ) issued a decision
finding, in relevant part, that complainant, a Distribution Clerk at
the agency's Hayward, California facility, was subjected to disability
discrimination when the agency wrongfully terminated complainant instead
of providing her a reasonable accommodation. The agency rejected the
AJ's finding on disability. Complainant successfully appealed the
agency's decision in Bains v. United States Postal Service, EEOC Appeal
No. 01980807 (November 22, 1999). As a result of the Commission's
decision, the agency was ordered to reinstate complainant and determine
the appropriate amount of back pay with interest and other benefits due
to complainant in a part-time work schedule. The agency was also ordered
to conduct a supplemental investigation on complainant's entitlement
to compensatory damages. On March 27, 2000, the agency issued a final
decision on compensatory damages and awarded complainant $51,350.00 in
pecuniary and $15,000.00 in non-pecuniary damages.
Complainant requested close to $200,000 in past pecuniary damages.
Based on the documentation complainant submitted, the agency awarded
complainant $36,100.00 for funds loaned by family members, including
interest on those amounts; $5,550.00 in credit card finance charges,
$8,200.00 for clothing, furniture and gas; and $1,500.00 in grocery
and dining expenses, for a total of $51,350.00. The agency denied the
remaining amount, including amounts for medical expenses, and argued
that complainant failed to show that the remaining claims were causally
linked to the discrimination.
After a careful review of the record, and with a modification in the
amount awarded in medical expenses, discussed below, we concur with the
agency's reasoning. In the first instance, complainant provided a summary
list of credit card charges for medical expenses, and other medical bills,
and receipts totaling $2,519.57; of this amount, complainant documented
$891.75 in actual out-of-pocket expenses. Complainant also contended
that during the time period when the discrimination occurred, she met
with a therapist and paid $90 for each visit, and paid $215 approximately
every other month for the medications Prozac and Premarin. However, the
documentation that complainant provided shows only one prescription for
Premarin, and possibly one refill for Prozac. There was no documentation
for the visits to her therapist. Separate from the list that complainant
provides, the agency noted that complainant's credit records revealed
a charge for $2,500.00 for a visit to a plastic surgeon. See, Report of
Investigation (ROI), Attachment 3L, p. 123. Complainant did not explain
the nexus between the discrimination and the need for plastic surgery.
In the absence of proper documentation or explanation of the medical
expenses incurred prior to her reinstatement, complainant is only entitled
to her actual out-of-pocket expenses, which total $891.75.
Second, complainant averred that as a result of losing her job,
she incurred over $100,000 in credit charges and fees. This amount
included outstanding credit card balance transfers for $13,100.00,
and cash advances totaling $54,371.00. Additionally, complainant
averred that she had to sell real property to prevent it from going
into foreclosure at a loss of $60,000.00. However, other than her own
assertions, complainant included no evidence of the assessed value of
this property, no proof that the property was sold, or that it was sold
at a loss. Moreover, complainant failed to submit persuasive evidence
establishing the nexus between the unpaid portion of these expenses
and the alleged discrimination, as such, complainant is not entitled to
recover any portion of these amounts denied by the agency.
Complainant also requested future pecuniary damages, and averred that
she was under a doctor's care, and would remain so for a long period
of time. In determining damages, the Commission applies the principle
that "a tortfeasor takes its victims as it finds them." Wallis v. United
States Postal Service, EEOC Appeal No. 01950510 (November 13, 1995)
(quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th
Cir. 1987)). However, 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 is 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. United States Postal Service, EEOC Appeal No. 01942985 (April
29, 1997).
A review of the record indicates that prior to the date of the agency's
discriminatory actions, complainant underwent a fitness for duty
psychological evaluation. In a medical report submitted to the agency
in October 1994, complainant's physician indicated that complainant's
psychiatric problems began after her husband's accidental death in 1987.
Since that time, complainant suffered a period of severe depression,
which was successfully treated, but continued to suffer from a Dysthymic
Disorder, which is a type of depression characterized by being sad more
days than not for a period of at least two years. During periods of
depression there is evidence of over-eating, insomnia or hypersomnia,
low energy or fatigue, and low self-esteem. See Initial Report of
Investigation, Exhibit 3. It was also noted that since it had been more
than five years since complainant became depressed, it was unlikely that
she would make a complete recovery.
While complainant submitted medical evidence describing the advent and
progress of her depression prior to her termination, complainant submitted
no such evidence showing that her condition deteriorated as a result of
the agency's actions. Further, the record indicated that complainant
was unlikely to ever completely recover from her depression. As such,
the symptoms that complainant complained of in her request for damages,
such as over-eating, insomnia, low energy or fatigue, and low self-esteem,
as well as her need to take anti-depressant medication, could have been
exacerbated by the agency's actions as she averred; however, they also
existed independent of the agency's actions. On appeal, complainant
indicated that her therapist would be submitting a report documenting the
degree her pre-existing condition was exacerbated by the discrimination.
However, the report was not received. Based on the record evidence,
the Commission is unable to evaluate the extent to which complainant's
condition was exacerbated by the agency's actions, or to what extent
she would incur additional medical expenses due to the discrimination.
Therefore, we find that complainant is not entitled to an award of future
pecuniary damages.
Complainant also requested non-pecuniary damages over and above
the $15,000 awarded by the agency. 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).
As noted above, complainant provided no medical evidence to support her
claim for compensatory damages, or that her condition was exacerbated
by the discrimination. We note however that, medical evidence is
not a mandatory prerequisite for recovery of compensatory damages.
Carpenter v. Department of Agriculture, EEOC Appeal No, 01945652
(July 17, 1995). In the absence of this evidence, a complainant's
own testimony, along with the circumstances of a particular case,
can suffice his/her burden in this regard. See U.S. v. Balistrieri,
981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993)
(housing discrimination). As the court noted in Balistrieri, �[t]he
more inherently degrading or humiliating the defendant's action is, the
more reasonable it is to infer that a person would suffer humiliation
or distress from that action; consequently, somewhat more conclusory
evidence of emotional distress will be acceptable to support an award
for emotional damages.� Nonetheless, the absence of supporting evidence
may affect the amount of damages deemed appropriate in specific cases.
Lawrence v. USPS, EEOC Appeal No. 01952288 (April 18, 1996).
The Commission notes that damage awards for emotional harm are difficult
to determine and that there are no definitive rules governing the
amount to be awarded in given cases. A proper award must meet two
goals: that it not be "monstrously excessive" standing alone, and
that it be consistent with the amounts awarded in similar cases.
See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)
at 574. Further, Federal courts have awarded compensatory damages in
a wide range of amounts depending on the facts of the particular case,
and the supporting evidence presented. See, e.g. Fleming v. County
of Kane, State of Illinois, 898 F.2d 553 (7th Cir. 1990) (jury award
of $120,000.00 reduced to $40,000.00 for embarrassment, humiliation,
severe headaches, sleeplessness, and depression following termination);
Jackson v. Pool Mortgage Co., 868 F.2d 1178 (10th Cir. 1989) ($24,421.00
award for depression, muscle spasms, stomach pain and hair loss following
termination); Terrell v. Dept. of Housing and Urban Development, EEOC
Appeal No. 01961030 (October 25, 1996) ($25,000.00 award for emotional
harm where discriminatory activity exacerbated, for at least two years,
problems unrelated to discrimination); Economou v. Department of the Army,
EEOC Appeal No. 01983435 (August 5, 1999) ($35,000.00 in non-pecuniary
damages based on complainant's statements that he experienced humiliation,
anxiety, depression, and sleeplessness; decision also noted that there
were other factors which contributed to complainant's emotional problems).
Complainant provided no statements from her family members, and indicated
that she thought about asking her daughters to provide a statement, but
was too embarrassed and humiliated to do so. Further, she did not want
them to �live through everything again.� However, based on a review of
the record, including complainant's statements on appeal, it is clear
that complainant suffered depression as result of her husband's death.
We also note complainant's statement that she had finally begun coming
to terms with her husband's death when the agency terminated her, which
again sent her into an emotional tailspin. This distress appeared
to be magnified by the fact that complainant remained unemployed
until she was reinstated to her former position, a period covering
two years. Complainant indicated that she had to borrow money from
family and friends, whereas before she had always been self-sufficient.
This coupled with her inability to find work made her feel worthless,
ashamed and humiliated, and in constant fear of becoming homeless.
This fear also resulted in nightmares, and constant worry during the day.
Complainant also averred that food became her constant companion, in that
she would eat too much and then not eat at all. Complainant indicated
that the only way she could sleep was by taking medication which made
her groggy during the day. Based on the foregoing, and considering the
nature and severity of the harm, we find that complainant is entitled
to non-pecuniary damages in the amount of $30,000.00 for the emotional
distress experienced in connection with her termination. This amount
includes the $15,000 previously awarded by the agency.
Complainant also contended that she is still owed back pay from October
13, 1997, through January 13, 1998, and that the agency did not restore
all the leave to which she was entitled. Further, complainant contended
that the agency improperly deducted $5,980.00, plus interest from her back
pay award for the time period covering August 27, 1995, to March 2, 1996,
for unemployment benefits she received. A review of the Commission's
compliance records for the previous appeal in Bains, id. reveals, in
relevant part, that the agency submitted documentation showing that it
deducted the $5980.00 from complainant's back pay award, but did not
explain its reason for doing so. Therefore, the agency shall explain
its rationale for deducting the above amount from complainant's back pay
award.<1> The record also revealed that complainant was not awarded back
pay from October 14, 1997 to December 26, 1997.<2> Similarly, there was
no documentation regarding the payment for Sunday premium, holiday pay,
or the restoration of sick and annual leave that would have accrued over
this time period. Since there was no explanation for this discrepancy,
the agency shall provide a detailed explanation as to complainant's
entitlement to back pay for the period in contention.
CONCLUSION
Therefore, 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 modify the agency's final
decision and remand this case to the agency to take remedial actions in
accordance with this decision and Order below.
ORDER (C0900)
To the extent it has not already done so, the agency is ordered to take
the following remedial action:
1. The agency shall pay complainant $82,241.75 in compensatory damages,
less any amount already paid by the agency. This amount reflects the
$15,891.75 awarded in this decision, plus the $51,350 in pecuniary, and
$15,000.00 in non-pecuniary damages previously awarded by the agency.
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 explain it rationale for deducting $5,980.00, plus
interest from her back pay award for the time period from August 27, 1995
to March 2, 1996, for unemployment benefits she received the above amount
from complainant's back pay award. Further, the agency shall provide
a detailed explanation as to whether complainant should have been was
awarded back pay for October 14, 1997 to December 26, 1997, and if not,
why complainant would not have been entitled to back pay. If the agency
determines that complainant was improperly denied back pay and other
benefits and privileges of employment during the periods in question,
those elements should be restored in order to make complainant whole.
3. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
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 (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
February 20, 2003
__________________
Date
1We remind the agency that, pursuant to the
�collateral source rule,� the Commission has held that unemployment
benefits may not be deducted from back pay awards. Wallis v. USPS, EEOC
Appeal No. 01950510 (November 13, 1995); see Scott v. USPS, EEOC Appeal
No. 01921641 (June 11, 1993); Collick-Brown v. Department of the Navy,
EEOC Appeal No. 01910904 (March 26, 1991).
2The records do show that complainant was issued a check for back pay
covering the period from December 27, 1997 to March 10, 1998, and that
the agency issued this check to complainant on April 30, 1998.