Virginia C. Janise, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 3, 2004
01A40148 (E.E.O.C. Nov. 3, 2004)

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.