01A14299
09-18-2002
Sylvia Alcala, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Sylvia Alcala v. Department of the Treasury
01A14299
September 18, 2002
.
Sylvia Alcala,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A14299
Agency No. 952368
DECISION
Sylvia Alcala (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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. 1614.405.
On September 29, 1995, complainant filed a complaint alleging that she
had been discriminated against on the bases of national origin (Hispanic),
sex (female), and age (date of birth: May 27, 1951) when she was denied
the opportunity to retake Unit II (Phase II) training in July 1995
and when she was notified in August 1995 that she would be downgraded
from a GS-7 Tax Technician position to a GS-5 Group Secretary position.
The agency concluded that complainant was not subjected to discrimination
and complainant appealed. On appeal, this Commission determined that
complainant was discriminated against on the bases of sex and age when
she was downgraded to the GS-5 Group Secretary position and ordered
the agency to conduct an investigation into complainant's claim for
compensatory damages, as well as provide other relief.
Subsequently, on June 5, 2001, the agency issued a final decision
in regard to complainant's compensatory damages claim. Therein, the
agency denied in its entirety complainant's pecuniary damages claim
for $18,867.85, noting that all of these expenses were associated with
complainant's move to Dallas to accept the GS-7 position, including rent,
travel, and telephone expenses. The agency concluded that these expenses
were not related to the agency's discriminatory action in that they
were caused by complainant's own decision to move to Dallas to accept
the GS-7 position, knowing she would have to move away from her home in
the San Antonio area to do so. The agency noted that if complainant
had not been downgraded, she would have continued to live in Dallas,
as that would have been her post-of-duty. The agency therefore denied
all claimed expenses related to complainant's move to Dallas as not
related to the discriminatory downgrade.
The agency also denied complainant's claim for compensation for lost
promotional opportunities, noting that the Commission has held that
an allegation that an individual would have received a competitive
promotion subsequent to a discriminatory act is speculative and cannot
be the basis of an award of damages.
The agency concluded that complainant suffered some emotional and physical
distress as a result of the discrimination. The agency noted that
complainant submitted an affidavit describing crying spells and lack of
sleep due to the agency's treatment of her, and that she sought assistance
from the agency's Employee Assistance Program. The agency also noted,
however, that the single page of physician's notes complainant provided
indicates that she first sought treatment for depression, dizziness,
fatigue and forgetfulness several months prior to the downgrade.
The agency concluded that complainant was entitled to $2,000.00 in
non-pecuniary damages.
The agency then denied complainant's claim for $1500.00 in attorney's
fees, noting that complainant failed to submit a verified statement of
attorney's fees and costs within thirty days of the previous Commission
decision.
On appeal, complainant contends that she is entitled to pecuniary damages
associated with her move to Dallas because she lost the "benefit of the
bargain" related to her move when she was downgraded. Complainant also
argues that she is entitled to more than the $2,000.00 in non-pecuniary
damages awarded by the agency. She notes that the agency actually
deposited $5,000.00 into her bank account and that despite her attempts
to receive clarification from the agency, she has not been told what to
do with the additional $3,000.00. Complainant also notes that the record
includes a letter from the agency's attorney recommending that she be
given $5,000.00. Complainant also requests $1500.00 in attorney's fees,
noting, among other things, that the agency and complainant's attorney
had discussed delaying submission of the attorney's fees petition until
the compensatory damages issue was resolved. Finally, complainant
requests reimbursement of the additional taxes she was required to pay
because she received the back pay award in two lump sum payments in 2000,
instead of spread out over the years from 1995 through 1999.
The agency did not respond to complainant's contentions on appeal.
ANALYSIS AND FINDINGS
Compensatory Damages
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, complainant established through her own testimony
that she suffered damages as a result of the agency's discriminatory
action. Moreover, the agency, in finding that complainant is owed
compensatory damages, concedes that there is a causal connection between
its discriminatory action and at least a portion of complainant's damages.
Calculation of Damages Payable
Pecuniary Damages
Complainant alleges that due to the agency's discriminatory action,
she was denied the benefit of her move to Dallas and argues that the
agency should therefore be required to pay expenses related to her stay
in Dallas. We find, however, that complainant chose to move to Dallas to
accept the GS-7 position. There is no evidence to suggest that, absent
the agency's discriminatory action, she would have lived elsewhere, rather
than remaining in Dallas to perform her GS-7 position. Complainant has
failed to establish a sufficient causal connection between the agency's
discriminatory action and the expenses she incurred while living in
Dallas and maintaining a separate residence in San Antonio.
Complainant noted that she suffered other financial hardship due to the
need to maintain two residences, such as requiring her oldest son to
take out a loan to go to college. As noted above, however, complainant
failed to establish that the agency's discriminatory action led to her
decision to maintain two residences and the related financial hardship.
Accordingly, we agree with the agency that complainant failed to establish
that she is entitled to any pecuniary damages.
Non-pecuniary Damages
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. The existence, nature, and severity of
emotional harm must be proved. See Compensatory Damages Notice, at 11.
Emotional harm may manifest itself, for example, as sleepiness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self esteem, excessive fatigue, or a nervous breakdown. Id.
Other non-pecuniary losses could include injury to professional standing
and injury to character and reputation. Id. at 10. A proper award
should take into account the severity of the harm and the length of time
that the injured party suffered the harm. See Carpenter v. Department
of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). Finally,
the amount of the award should not be �monstrously excessive� standing
alone, should not be the product of passion or prejudice, and should
be consistent with the amount awarded in similar cases. See Jackson
v. United States Postal Service, EEOC Appeal No. 01972555 (April 15,
1999), citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th
Cir. 1989).
In the case at hand, complainant testified that the agency's
discriminatory downgrade led to crying spells, stress, humiliation
and depression. Complainant further noted that her husband and
children experienced stress due to the agency's actions which added to
her stress. She also noted that she was clenching her teeth at night
due to the stress, which was causing jaw pain. In determining that
$2,000.00 fairly compensated complainant<1> for the distress caused
by the discriminatory downgrade, the agency noted that complainant was
suffering from depression, dizziness, fatigue and forgetfulness prior
to the discriminatory downgrade.
A review of the record reveals that complainant was suffering from
depression and other emotional distress prior to the downgrade, which is
the only agency action found to be discriminatory. Her testimony also
establishes, however, that the downgrade exacerbated that depression
and the other emotional distress she was experiencing and that this
distress continued in some measure through at least September 2000,
when she submitted her affidavit on the issue of compensatory damages.
Although complainant testified that her own distress was furthered
by the distress suffered by her family, her affidavit indicates that
the distress suffered by her children and husband stemmed in part
from the fact that complainant was living in Dallas. As noted above,
complainant's decision to move to Dallas while her family stayed in San
Antonio is not attributable to the agency's discriminatory acts and any
damages suffered due to that decision are not compensable.
A number of Commission decisions have awarded non-pecuniary compensatory
damages in cases similar to complainant's. Rountree v. Department
of Agriculture, EEOC Appeal No. 01941906 (July 7, 1995) ($8,000 in
non-pecuniary damages where complainant received a low performance
appraisal and was denied bonus pay because of race and reprisal, medical
testimony provided regarding complainant's emotional distress, but the
majority of complainant's emotional problems were caused by factors
other than the discrimination); Hull v. Department of Veterans Affairs,
EEOC Appeal No. 01951441 (September 18, 1998) ($12,000 in non-pecuniary
damages where complainant offered little corroborating testimony to
support his claim, but did establish through his own testimony that he
suffered from stress, feelings of incompetence, headaches and fatigue,
and avoided friends and recreational activities due to the agency's
discriminatory actions); Jones v. Department of Defense, EEOC Appeal
No. 01973551 (April 14, 2000)($9,000 in non- pecuniary damages based on
complainant's statements regarding interference with family and marital
relations, digestive problems, headaches, anxiety, sleeplessness, and
exhaustion resulting from agency's discrimination).
Based on the foregoing evidence, the Commission finds that complainant is
entitled to non-pecuniary damages in the amount of $10,000. This amount
takes into account the severity and duration of the harm sustained by
complainant due to the agency's discriminatory action and consideration of
damage awards reached in comparable cases. The Commission further notes
that this amount fits the criteria of not being motivated by passion
or prejudice and not being "monstrously excessive" standing alone.
See Cygnar, 865 F.2d at 848.
Back Pay Award
Complainant alleges that she should be awarded an additional $3,722.00
in back pay due to the adverse tax consequence of receiving almost
five years of back pay in one year. In her compensatory damages
affidavit, she indicated that she believed the lump sum payment had
adverse consequences and reserved the right to claim reimbursement.
The agency did not respond to this allegation. On appeal, complainant
provides a detailed explanation in support of her claim.
Complainant is correct that the equitable remedy of an award to
cover additional tax liability for receiving back pay in a lump sum is
available. See Goetze v. Department of the Navy, EEOC Appeal No. 01991530
(August 22, 2001). Complainant has the burden of establishing the amount
of increased tax liability and requests for reimbursement have been denied
due to a failure on complainant's part to provide sufficient evidence.
Id. In the case at hand, however, complainant has provided the necessary
evidence to establish that, had she been paid the $28,984.25 she received
in back pay over a period of years from 1995 through 2000, rather than
in two lump sums in 2000, she would have paid $3,722.00 less in taxes.
She has provided her tax returns for the relevant years, as well as the
appropriate tax rate schedules. She also has specifically described
how she came to the claimed amount, indicating the amount of back pay
attributable to each year from 1995 - 1999, as provided by the agency, and
the amount of taxes she would have owed had she been paid those amounts
in the appropriate years. She provides her 2000 tax return to establish
the amount of taxes she actually paid on the lump sum award. A careful
review of this evidence establishes that complainant is entitled to an
additional $3,7220.00 in back pay to cover the additional tax liability
she incurred due to the lump sum payments she received in 2000.
Attorney's Fees and Costs
Finally, we find that although it is undisputed that complainant did
not submit a verified statement of attorney's fees and costs within
thirty days of receipt of the previous Commission decision, complainant
is nonetheless entitled to an award of reasonable attorney's fees and
costs. Commission regulations provide that the time limits imposed by the
regulations are subject to waiver, estoppel and equitable tolling. See 29
C.F.R. � 1614.604(c). Here, the record supports complainant's attorney's
contention that the agency had discussed with her the possibility of
delaying the attorney's fees petition until the issue of compensatory
damages was resolved. An internal agency document dated April 9,
2001 indicates that certain agency officials believed that attorney's
fees could not be computed until the issue of compensatory damages
was resolved. Complainant's attorney asserts that this is where the
issue stood when the agency issued its FAD denying the attorney's fees
request in July 2001. In these circumstances, we find it appropriate
to remand the issue of attorney's fees so that complainant's attorney
may submit a verified statement of fees and costs covering the entirety
of her representation of complainant on this matter, as described in
the order below.
According, after a careful review of the record, including arguments and
evidence no specifically discussed in this decision, we hereby MODIFY
the agency's FAD.
ORDER
The agency is ORDERED to take the following remedial actions:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a check to complainant in the amount of
$10,000.00 for non-pecuniary damages, less any amount already awarded.
2. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a check to complainant in the amount of
$3,722.00 in back pay.
3. The issue of attorney's fees and costs is REMANDED to the agency.
Complainant, through counsel, shall submit a request for attorney's
fees and costs in accordance with the Attorney's Fees paragraph set
forth below. No later than sixty (60) days after the agency's receipt
of the attorney's fees statement and supporting affidavit, the agency
shall issue a final agency decision addressing the issues of attorney's
fees and costs. The agency shall submit a copy of the final decision
to the Compliance Officer at the address set forth below.
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.
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
Setptember 18, 2002
Date
1 The record establishes that the agency
attorney who reviewed complainant's compensatory damages claim, suggested
an award of $5,000.00. Moreover, complainant asserts, without rebuttal,
that the agency deposited $5,000.00 into her bank account and that despite
her requests for clarification, has not indicated what she should do
with the additional $3,000.00.