Sylvia Alcala, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A14299 (E.E.O.C. Sep. 18, 2002)

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.