01A40148
11-03-2004
Virginia C. Janise, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Virginia C. Janise v. United States Postal Service
01A40148
November 3, 2004
.
Virginia C. Janise,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40148
Agency No. 4G-770-0330-99
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
regarding the amount of the compensatory damages awarded by the agency.<1>
For the following reasons, the Commission affirms the agency's final
decision on compensatory damages.
Previously, complainant appealed the agency's FAD finding of no
discrimination in the denial of her bid position to Carrier Route 394
to the Commission in Janise v. United States Postal Service, EEOC Appeal
No. 01A13359, (September 19, 2002). In that decision the Commission found
that the agency violated Section 501 of the Rehabilitation Act of 1973
and awarded full make whole relief. In relevant part, the Commission
ordered the agency to issue a final decision on compensatory damages
pursuant to 29 C.F.R. � 1614.110(b).
Subsequently, the agency issued a FAD on the issue of compensatory
damages. The agency considered the evidence submitted by complainant in
support of her claim for compensatory damages and awarded complainant
$205.33 in pecuniary damages, $9,000.00 in non-pecuniary damages, and
$169.13 in postage and copying costs.
Complainant then appealed to the Commission and contended that
the documentation in support of her compensatory damages request
exceeded the amount awarded by the agency. Additionally, complainant
requested enforcement of the equitable relief ordered by the Commission.
In response, the agency requested that the Commission affirm its decision
as complainant failed to show that the agency's decision was incorrect
as a matter of fact or law.
Initially, we note that in complainant's request for compensatory
damages, she raised issues related to lost overtime and requested an �ETC
Report� from the agency which would reflect the number of times that she
either had to exhaust her leave and/or went without pay directly due the
discriminatory actions of the agency. We note, however, that these issues
are not properly before the Commission as they are requests for equitable
relief, and are beyond the scope of the agency's FAD on compensatory
damages; therefore, these issues will not be addressed herein.<2>
We note that the Civil Rights Act of 1991 (CRA) authorizes awards
of compensatory damages as relief for intentional discrimination in
violation of the Rehabilitation Act. 42 U.S.C. � 1981a. Compensatory
damages are recoverable in the administrative process. West v. Gibson,
119 S.Ct. 1996 (1999); see Jackson v. United States Postal Service,
EEOC Appeal No. 01923399 (November 12, 1992), req. to recon. den.,
EEOC Request No. 05930306 (February 1, 1993).
Generally, a compensatory damages award should fully compensate a
complainant for the harm caused by the agency's discriminatory action
even if the harm is intangible. Id. at 13. Regarding non-pecuniary
damages, we note that such damages are designed to remedy a harm and
not to punish the agency for its discriminatory actions. See Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 311-12 (1986)(stating
that compensatory damages determination must be based on the actual harm
sustained and not the facts of the underlying case). A proper award
of non-pecuniary damages 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 (7th Cir. 1989)).
Complainant must present objective evidence that the agency's
discriminatory actions caused her to suffer the harm complained of.
See Smith v. Department of Defense, EEOC Appeal No. 01943844 (May 8,
1996). In Carle v. Dept. of the Navy, EEOC Appeal No. 01922369 (January
5, 1993), the Commission explained, that "objective evidence" of any
pecuniary and non-pecuniary damages could include a statement by the
complainant explaining how he or she was affected by the discrimination.
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could also
submit documentation of medical or psychiatric treatment related to the
effects of the discrimination. Id.
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).
In addressing the $205.33 in pecuniary damages awarded by the agency, we
concur with the agency's finding that complainant failed to demonstrate
that she was entitled to the full $904.76 in pecuniary damages she
requested. We note, as did the agency, that complainant included expenses
for medication which predated the February 1999 incident which resulted
in the underlying finding of discrimination. Additionally, complainant
included medical bills and expenses for doctor visits which occurred
more than a year after the last visit that complainant was able to show
was causally linked to the agency's discriminatory actions. We note for
example, that complainant requested reimbursement for medication purchases
made between December 2000 and August 2001; however, her last prior
receipt was for a purchase made in December 1999. Complainant failed
to explain what happened in the intervening twelve months that resulted
in her again needing to take the medication. Similarly, in her medical
visits, the records show gaps of more than two years, where complainant
had no doctor visits and then had doctor visits in 2002. Therefore,
we find that complainant failed to persuasively establish a causal link
between the doctor visits challenged by the agency and the prior actions
of the agency that were found to be discriminatory.
We further find that the agency's award of $9,000.00 in non-pecuniary
damages is consistent with the amounts awarded in similar cases,
given the level of harm experienced by complainant. See, e.g., Jones
v. Department of Defense, EEOC Appeal No. 01973551 (April 14, 2000)
($9,000.00 in non-pecuniary damages based on complainant's statements of
the interference with family and marital relations, digestive problems,
headaches, anxiety, sleeplessness, and exhaustion resulting from the
agency's discrimination); Hull v. Department of Veterans Affairs,
EEOC Appeal No. 01951441 (Sept. 18, 1998) ($12,000.00 in non-pecuniary
damages based on complainant's testimony of emotional distress due to
retaliatory harassment); White v. Department of Veterans Affairs, EEOC
Appeal No. 01950342 (June 13, 1997) ($5,000.00 in non-pecuniary damages
based on emotional distress); Benson v. Department of Agriculture, EEOC
Appeal No. 01952854 (June 27, 1996) ($5,000.00 in non-pecuniary damages
for emotional distress based on the testimony of complainant and certain
of his co-workers regarding embarrassment and humiliation suffered by the
complainant as a result of denied promotions, a suspension, and other
adverse actions). Accordingly, we affirm the agency's non-pecuniary
damage award.
As a prevailing party, complainant is entitled to recovery of her
costs. See 28 U.S.C. � 1920; �1614.501(e)(2)(ii)(C). Here, complainant
requested costs in the amount of $179.72, but was awarded $169.13 in
postage and copying costs by the agency because complainant failed
to address how copying costs from October 1, 1999, January 13, 2000,
February 26, 2000, and November 3, 2000 were related to any of the
stages involved in processing her complaint. Complainant provided
no explanation in the record or on appeal about the relevance of these
charges; therefore, we affirm the agency's determinations on these costs.
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 affirm the agency's final
decision and order the agency to take remedial actions in accordance
with this decision and Order below.
ORDER (D0403)
To the extent it has not already done so, the agency is ordered to take
the following remedial action:
1. The agency shall issue complainant a check in the amount of $9,374.46.
The agency shall tender full payment to complainant no later than sixty
(60) calendar days after the date on which this decision becomes final;
2. 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, including
evidence that the corrective action has been implemented.
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
November 3, 2004
__________________
Date
1Commission correspondence to the agency erroneously noted the date
of complainant's appeal as September 24, 2003; however complainant
actually filed her complaint on August 25, 2003, with the subsequent
brief in support of her appeal following on September 24th.
2If the agency has not provided the full equitable relief to which
complainant believes she is entitled, then these issues may be raised
with the Commission in connection with compliance case #06A50107 which
has been docketed to monitor any remaining issues.