07A10072
07-23-2002
Terri Wiggins, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Terri Wiggins v. Department of the Air Force
07A10072
July 23, 2002
.
Terri Wiggins,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 07A10072
Agency Nos. AR000010321; AR933010390
Hearing Nos. 320-98-8195X; 320-98-8315X
DECISION
Following its April 24, 2001 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) award of compensatory damages in
which complainant was awarded $40,000.00.<1> For the following reasons,
the Commission REVERSES the agency's final order.
Following a hearing, the AJ found that the preponderance of the evidence
established that complainant was discriminated against on the bases
of race (African American) and reprisal (prior EEO activity) when
the agency engaged in harassing conduct which included complainant's
proposed termination (which later was reduced to a suspension) in
September, 1996. However, the AJ concluded that there was insufficient
evidence to establish that complainant was constructively discharged in
December, 1996.
The AJ also concluded that complainant established that she had incurred
emotional and physical harm as a direct result of the discriminatory
conduct. Specifically, complainant was diagnosed with alopecia
(hair loss due to stress), and suffered from an upset stomach and
depression. Complainant testified that she was very depressed and that
her relationship with her husband suffered since she isolated herself and
was depressed all the time. In addition, the AJ found that complainant
sought frequent counseling from her pastor. Complainant's husband
corroborated her testimony.
The agency argues on appeal that the non-pecuniary damages award of
$40,000 was improper and inconsistent with awards made in similar cases.
Specifically, the agency argues that there was limited medical evidence
and little evidence from objective third parties. In addition, the
agency argues that the duration of the harm was no more than a few weeks.
Accordingly, the agency argues that the non-pecuniary damages award
should be in the �$3,000 to $15,000 range.�
In addition, the agency argues that since complainant failed to provide
supporting documentation of costs and the AJ failed to determine the
amount to be awarded, complainant is barred from collecting any costs
associated with the litigation of her claims.<2>
Section 102(a) of the 1991 Civil Rights Act authorizes an award
of compensatory damages for all post-act pecuniary losses, and for
non-pecuniary losses, such as, but not limited to, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to character and reputation, and loss of health. In this regard,
the Commission has authority to award such damages in the administrative
process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages
do not include back pay, interest on back pay, or any other type of
equitable relief authorized by Title VII. To receive an award of
compensatory damages, a complainant must demonstrate that she has been
harmed as a result of the agency's discriminatory action; the extent,
nature and severity of the harm; and the duration or expected duration
of the harm. Rivera v. Department of the Navy, EEOC Appeal No. 01934157
(July 22, 1994), req. for reconsid. denied, EEOC Request No. 05940927
(December 11, 1995); EEOC's Enforcement Guidance: Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. 915.002 at 11-12, 14 (July 14, 1992) ("Guidance").
A complainant is required to provide objective evidence that will allow
an agency to assess the merits of her request for damages. See Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993).
Non-pecuniary damages constitute the sums necessary to compensate
the injured party for actual harm, even where the harm is intangible.
Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). The
award should take into account the severity and duration of the harm.
Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July
17, 1995). Non-pecuniary and future pecuniary damages are limited
to an amount of $300,000.00. The Commission notes that for a proper
award of non-pecuniary damages, 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 Ward-Jenkins v. Department of the Interior, EEOC
Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,
865 F. 2d 827, 848 (7 superth Cir. 1989)).
Applying the above legal standards above, we find that the AJ correctly
applied the appropriate laws and regulations to the facts that are
supported by substantial evidence. Accordingly, we find no reason to
disturb the AJ's non-pecuniary damages award. While the AJ did not
specifically address the duration of complainant's harm, we find that
the record supports a finding that complainant continued to suffer harm
as a result of the discriminatory suspension for approximately two years
after her resignation. The record shows that following her resignation
from the agency, complainant applied to numerous jobs both in the federal
and private sector but was not offered any position due to the fact that
complainant's employment records at the agency reflected her five-day
suspension.<3> Complainant testified that her depression continued
after her resignation due to her inability to restart her career.
Since we find that complainant's harm lasted approximately two
years, we agree with the AJ's determination of non-pecuniary damages.
Specifically, we find complainant's harm more akin to the Commission's
decisions in Feris v. Environmental Protection Agency, EEOC Appeal
No. 01983167 (September 18, 1998) ($35,000 in non-pecuniary damages for
agency's failure to accommodate complainant's physical disability over
approximately two years which resulted in tension, damage to self-esteem,
anxiety, anger and sleeplessness); Economou v. Department of the Army,
EEOC Appeal No. 01983435 (August 5, 1999) ($35,000 award for temporary
anxiety (less than one year) and depression due to discriminatory
working conditions); Johnson v. Department of the Interior, EEOC Appeal
No. 01961812 (June 18, 1998) ($35,000 in non-pecuniary damages awarded
for six months of harassment where no medical evidence was provided);
and Terrell v. Department of Housing and Urban Development, EEOC Appeal
No. 01961030 (October 25, 1996) ($25,000 in non-pecuniary damages based
on �quite serious� emotional harm, lasting approximately 18 months,
frequent crying, introversion, disruptions in relationships with family
and friends, suicidal thoughts, depression, sleep problems, marital and
financial difficulties exacerbated, although majority of problems not
shown caused by discrimination).
With respect to the AJ's order regarding complainant's costs, we find
no evidence in the record to support an award of costs. In addition,
we note that complainant did not address this issue on appeal or provide
any evidence of incurred costs in her appeal. Accordingly, we affirm
the agency's final order with respect to complainant's cost and conclude
that complainant has not presented sufficient evidence to support such
an award.
Lastly, to the extent that complainant raises a claim for future earning
capacity on appeal, we find that she has failed to present any evidence
sufficient to prove such claim. <4>
Therefore, it is the decision of the Equal Employment Opportunity
Commission to MODIFY the agency's final order, in part, by affirming
the AJ's award of $40,000 in non-pecuniary damages.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within sixty (60) calendar days from the date this decision becomes
final, the agency shall pay complainant $40,000 in non-pecuniary damages.
Within sixty (60) calendar days from the date this decision becomes
final, the agency shall reimburse any lost wages or benefits (including
interest) that resulted from the suspension.
Within sixty (60) calendar days from the date this decision becomes
final, the agency shall provide training to the officials responsible
for its actions in this matter regarding their obligations and
responsibilities under Title VII, with a special emphasis on race
discrimination and reprisal.
Within sixty (60) calendar days from the date this decision becomes
final, the agency shall expunge any adverse information in complainant's
employment records, including, but not limited to, any information
relating to complainant's proposed termination and suspension.
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.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Space Command, Peterson
Air Force Base, Colorado facility copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
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
July 23, 2002
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _________ which found that a
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. has occurred at the U.S. Space
Command, Peterson Air Force Base, Colorado facility (facility).
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have violated Title VII when it engaged in
harassing conduct which included complainant's proposed termination
(which later was reduced to a suspension) in September, 1996. The agency
was ordered to: (1) pay complainant $40,000 in non-pecuniary compensatory
damages; (2) reimburse complainant any lost wages or benefits (including
interest) that resulted from her suspension; (3) provide training to the
officials responsible for its actions in this matter regarding their
obligations and responsibilities under Title VII; and (4) expunge any
adverse information in complainant's employment records.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
___________________________
Date Posted: _____________
Posting Expires: ______________
29 C.F.R. Part 1614
1 The agency also requests that the Commission affirms its rejection of
an award of costs to complainant.
2 The AJ ordered the agency to �pay complainant's reasonable costs.� The
AJ did not award attorney's fees since complainant was not represented
by an attorney.
3 The AJ ordered the five-day suspension expunged from complainant's
personnel file.
4 Proof of entitlement to loss of future earning capacity involves
"evidence suggesting that [an individual's] injuries have narrowed the
range of economic opportunities available to [her]." Gorniak v. Nat'l
R.R. Passenger Corp., 889 F.2d 481, 484 (3d Cir. 1989). Such evidence
need not prove that the injured party will, in the near future, earn less
than she did previously, but that "[her] injury has caused a diminution in
[her] ability to earn a living." Id. Courts require evidence that the
impairment of earning capacity "be shown with reasonable certainty or
reasonable probability and there must be evidence which will permit the
[fact finder] to arrive at a pecuniary value for the loss." Annotation,
Evidence of Impaired Earnings Capacity, 18 A.L.R.3d 88, 92 (1968).