01985144
04-27-2000
Albert Sprague, Complainant, v. Dan Glickman, Secretary, Department of Agriculture, Agency.
Albert Sprague v. Department of Agriculture
01985144
April 27, 2000
Albert Sprague, )
Complainant, )
)
v. ) Appeal No. 01985144
) Agency Nos. 910791
Dan Glickman, ) 930422
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision
of the agency regarding compensatory damages in connection with his
complaint in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.<1> The final agency decision
was issued on May 1, 1998. The appeal was postmarked June 15, 1998.
Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and
is accepted in accordance with EEOC Order No. 960, as amended.<2>
ISSUE PRESENTED
The issue on appeal is whether the agency's final decision properly
determined that complainant was entitled to an award of compensatory
damages in the amount of $10,495.85.
BACKGROUND
On April 22, 1993, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the bases of his race
(white), color, sex (male), age (48), and in reprisal for his previous
EEO activity with regard to the agency's lack of cooperation in his
job search, his reassignment in December 1992, his rating of "Fully
Successful" for his performance appraisal received in October 1992,
some disciplinary actions were taken against him, and some of his
duties were removed in November 1992. The complaint was accepted and
an investigation was conducted. Complainant subsequently requested a
hearing before an EEOC Administrative Judge (AJ).
The AJ issued a recommended decision wherein she found that complainant
was discriminated against on the bases of his age and reprisal with
regard to the agency's lack of cooperation in his job search, his
reassignment in December 1992, his performance appraisal received in
October 1992, and a series of performance counseling sessions. Based on
these incidents, the AJ found that complainant was subjected to a hostile
work environment due to his age. The AJ also found insufficient evidence
of sex discrimination. Additionally, the AJ found that complainant was
not discriminated against on the bases of his age or reprisal when some
of his duties were removed in November 1992. The AJ noted that as a
result of the discrimination and hostile work environment, complainant
experienced work-related stress which resulted in depression, a loss of
interest in activities previously enjoyed, back problems, and sleeping
difficulties. The AJ further noted that in late 1989 or 1990, complainant
began seeing a physician for work-related stress, and that he underwent
mental counseling and was treated for depression. As remedial relief,
the AJ recommended that complainant be offered a position commensurate
with his duties and responsibilities on the Ottawa National Forest; that
complainant's 1992 performance appraisal reflect one element which exceeds
"Fully Satisfactory"; that complainant be awarded attorney's fees; that
the agency provide sensitivity training for all managers in connection
with its obligation to maintain a working environment free from reprisal
and hostile and offensive working conditions on the basis of age. The AJ
also recommended that complainant be awarded compensatory damages in an
amount to be determined by the parties.
On November 21, 1995, the agency adopted the AJ's findings that
complainant was subjected to age discrimination and reprisal with
regard to the agency's lack of cooperation in complainant's job search,
his reassignment in December 1992, complainant's performance appraisal
of October 1992, and a series of performance counseling sessions with
complainant. The agency also determined that complainant was subjected
to discrimination on the bases of race, color, and sex with regard to
the aforementioned actions and also when complainant's job duties were
reduced. The agency noted that complainant had been unjustly criticized
by management officials, it failed to put forth an honest effort to help
him find a job, and complainant accepted his reassignment amidst an
environment where the agency was making concerted efforts to reduce its
number of older white males. With regard to complainant's performance
appraisal, the agency determined that his overall rating should have
been "Superior" rather than "Fully Successful". The agency further
determined that the performance counseling sessions and curtailment of
complainant's job duties occurred in a work environment that exhibited
hostility to older white males. Finally, the agency dismissed the claim
of a hostile work environment, noting that this issue did not appear
in the EEO Counselor's report. Although this claim was dismissed on
the grounds of untimeliness and failure to state a claim, the agency
noted that evidence or incidents involved in the claim were considered
relevant to the accepted issues.
As relief, the agency determined that complainant would be restored to the
position he held at the Ottawa National Forest prior to the reassignment
and the incidents at issue, or to a position substantially similar to
the position in Ottawa that is satisfactory to him. The agency also
provided that complainant's 1992 performance appraisal would be revised
to reflect a rating of "Superior", and that any references to the "Fully
Successful" rating would be expunged from all files. Further, the agency
stated that it would pay reasonable attorney's fees and that it would
pay proven compensatory damages. The agency informed complainant that
a claim for compensatory damages should include specific evidence of
damages caused by the challenged actions.
By letter dated March 27, 1996, complainant submitted to the agency a
claim for compensatory damages in the amount of $227, 501.00. This amount
included $150,000.00 as compensation for stress; $38, 209.00 in back
pay; $9, 464.00 for the future cost of medical expenses; $19, 385.00
for unreimbursed moving expenses; $4,456.00 for medical expenses;
and $5,997.00 for expenses related to the pursuit of the complaint.
Complainant also requested the restoration of 126.5 hours of sick
leave. In support of his claim for compensation for stress, complainant
submitted a statement wherein he declared that he began to feel stress and
emotional trauma in October 1989, after he filed his initial complaint.
Complainant stated that his stress peaked during the end of June 1990,
when it was indicated that he needed to move. According to complainant,
within a month of the July 1991 settlement of the prior EEO complaint,
management officials started to criticize his attitude and behavior.
Complainant stated that they also began to pressure him to move
saying that he lacked good team building and supervisory skills.
According to complainant, he was notified that selecting officials
would be informed of his deficiencies. Complainant stated that this
treatment of him continued until the autumn of 1992, when he was offered
and he accepted his current position at the Nicolet National Forest.
Complainant indicated that he was no longer subjected to discriminatory
harassment after he moved to the Nicolet Forest. However, complainant
stated that he was experiencing significant stress due to delays in the
processing of the instant complaint, the difficulties he encountered in
selling his home in Ironwood, Michigan and finding a new house in the
Laona, Wisconsin area, and the loss of close friendships he had formed
in Ironwood. According to complainant, he has lost training opportunities
and not being selected for other positions has eliminated opportunities
that he would have had for a promotion. Complainant claims that his
current salary and future retirement benefits would have been higher.
Additionally, complainant maintains that he has suffered because he was
placed in a position of lesser stature.
In addition to his own statement, complainant submitted a letter dated
June 8, 1995, from his psychiatrist. According to the psychiatrist,
complainant has major depression and it will be ongoing as long as
the employment issues continue. The psychiatrist further stated that
it would be difficult to imagine complainant requiring his assistance
if the employment issues had been resolved by now. In a letter dated
March 3, 1996, complainant's daughter described him as visibly upset
and shaken when he moved out of his home on June 14, 1993. She stated
that he lost control and cried. She further indicated that in the
ensuing period before he moved into his new home, their previously close
relationship was damaged as complainant became depressed and very lonely.
Complainant also provided a letter dated March 12, 1996, from his former
fiancee. She described complainant as being in a despondent state of
mind when she met him in October 1994. She stated that this condition
is directly related to the harassment he was subjected to at the Ottawa
National Forest and the ordeal of the complaint procedures. She stated
that she broke off their engagement because of his inability to have an
optimistic view of life. She noted that medication has alleviated some
of complainant's depression, but the prolonged, unresolved state of his
complaint has heightened his distraught feelings in recent months.
In its final decision with regard to the compensatory damages claim,
the agency awarded complainant $10,495.85 in compensatory damages,
plus interest from June 27, 1996, through the date of its decision,
May 13, 1998. With regard to complainant's request for $150,000.00 in
non-pecuniary damages, the agency instead awarded $9,000.00. The agency
evaluated the claim in terms of the discrimination that allegedly occurred
during the period of November 21, 1991 - December 31, 1992. The agency
noted that complainant indicated that part of the alleged discrimination
occurred prior to November 21, 1991, the date that the Civil Rights Act
of 1991 was passed. Therefore, the agency disallowed the compensatory
damages claim for 1989, 1990, and most of 1991. With respect to the
period after December 1992, the agency referenced complainant's statement
that the discriminatory conditions that he experienced did not exist
after he was reassigned from the Ottawa National Forest to the Nicolet
National Forest in December 1992. The agency noted that subsequent to
the reassignment, complainant claimed that he again experienced stress
because of the delays in processing his complaint, the investigation of
his complaint, and the hearing process. The agency reasoned that the
emotional distress that complainant experienced after December 1992,
was not related to the discriminatory actions, but rather was a result
of his participation in the EEO process. In determining its award of
$9,000.00 for complainant's non-pecuniary losses, the agency utilized a
measure of approximately $25.00 per day for the approximately one year
duration of complainant's harm. The agency stated that complainant's
emotional distress was of limited duration and apparently required no
medical treatment prior to 1994.
As for complainant's request for $38,209.00 in back pay, the agency denied
the claim in its entirety on the grounds that back pay is a claim for
equitable relief rather than compensatory damages. The agency noted that
Section 1981a(b)(2) indicates that compensatory damages do not include
back pay, interest on back pay, or any other type of equitable relief
authorized by Title VII. With respect to complainant's request for
$19,385.00 in moving expenses, the agency awarded only $310.00 for the
cost of kennel fees that complainant incurred while he was relocating.
The agency denied the claim of $295.00 in mileage costs related to
complainant's daily trips to care for his dog at his friend's house.
According to the agency, complainant did not provide documentation
for this expense, including a specific point of origin and point of
destination. The agency also denied complainant's claim for $1,620.00
for personal time associated with travel for the care of his dog.
With regard to complainant's request for $225.00 for temporary living
quarters at a hotel, the agency stated that complainant provided no
documentation to support his claim. The agency also denied complainant's
request for $1,140.00 in reimbursement for apartment costs. The agency
noted that complainant provided no proof for $760.00 of these costs and
a $380.00 receipt for a security deposit expense. Further, the agency
denied complainant's claim for $104.00 in utility fees for this apartment
because evidence was not provided to support the claim. As for the claim
for $5,694.00 in meals and miscellaneous expenses, the agency denied
this claim noting that complainant had meal and eating requirements
irrespective of the discrimination. The agency further stated that
complainant did not provide evidence that this expense was incurred.
The agency also denied complainant's request for $1,560.00 for the
cost of weekly trips from his new residence to his former residence.
According to the agency, complainant did not submit documentation or
verification of the costs or specifics regarding his point of origin
and point of destination. In connection with this travel, the agency
denied complainant's request for $3,125.00 as reimbursement for his
travel time. The agency also rejected complainant's request for $3,062.00
for house payments, city utilities, and heat and electricity expenses for
maintaining his residence in Ironwood from January 1993 through June 1993.
According to the agency, complainant failed to provide copies of bills or
other documentation to establish that he incurred the claimed expenses.
The agency also denied complainant's claim for $2,000.00 for his personal
time devoted to searching for a new residence. Additionally, the agency
denied complainant's request for $260.00 for mileage expenses pertaining
to his search for a new home. The agency noted that complainant failed
to submit objective evidence establishing travel at 100 miles a month
for ten months for this purpose.
As for the medical expenses that complainant incurred, the agency denied
complainant's request for $867.00 for services rendered from January
14, 1990 through October 19, 1990, on the grounds that these expenses
preceded the passage of the Civil Rights Act of 1991. Complainant claimed
with regard to his March 9, 1994 session at the Northwood Guidance
Center, $74.00 for treatment, $6.24 for mileage costs, and $30.00
for his personal time expended for the visit. The agency rejected
this claim in its entirety, noting that complainant did not establish
a causal relationship between the bill for treatment and the alleged
discriminatory acts. Complainant also requested $2,009.85 for services
provided by St. Mary's Hospital from June 17, 1994 through February 27,
1996. This amount reflected $796.25 for treatment; $353.60 for related
mileage; and $860.00 for complainant's personal time. The agency awarded
complainant the requested amounts for treatment and mileage. The agency
noted that complainant's physician specifically cited the relationship
between complainant's depression and the agency's failure to resolve
ongoing employment issues. The request for $860.00 for personal time
was rejected on the grounds that there is no basis for such an award.
With regard to complainant's request for $359.85 for treatment and
costs associated with his sessions with Northern Wisconsin Psychological
Associates, the agency denied this claim in its entirety. The agency
determined that complainant failed to demonstrate that the treatment
resulted from the alleged discriminatory acts that occurred prior to
complainant's relocation in December 1992. Complainant also requested
$1,145.00 for medication prescribed in 1994, 1995, and 1996. The agency
acknowledged that complainant submitted documentation establishing that
the expenses were incurred, but it determined that complainant failed to
establish a causal relationship between the alleged discriminatory acts
and the prescription expenses. The agency concluded that complainant's
stress was a result of other matters, including his pursuit of the instant
complaint. As for complainant's request for restoration of sick leave,
the agency determined that sick leave is an employment benefit independent
of any claim for compensatory damages, and thus it was not awarded.
With regard to complainant's claim for $9,464.00 for future pecuniary
damages, the agency noted that this amount for future medical expenses
was calculated at $2,247.00 per year at 6% interest for five years.
The agency stated that complainant did not provide an explanation of how
he arrived at the $2,247.00 amount. The agency further disputed the need
for future medical treatment. According to the agency, the letter from
complainant's physician did not establish the need for future treatment,
but rather stated that complainant's depression is ongoing as long as
the employment issues continue. The agency reasoned that the employment
issues would conclude with the issuance of its decision, and moreover,
that complainant's current state of emotional distress relates to the
processing of the instant complaint.
Finally, the agency rejected complainant's claim for $5,997.00 for
legal expenses, associated travel costs, and time devoted to his case.
The agency reasoned that attorney's fees do not fall within the purview of
compensatory damages and therefore, the request for $254.00 in attorney's
fees and $143.00 in associated mileage costs was denied. As for the
remaining $5,600.00 of complainant's claim, the agency determined that
the time complainant spent working on his case is not compensable.
In its final decision, the agency noted that on April 13, 1995,
complainant claimed that the agency failed to comply with the July 19,
1991 settlement of his initial complaints. The settlement agreement
provided that the agency would pay complainant $7,150.00 to cover his
back pay, miscellaneous expenses, and attorney's fees. The agreement
also provided that the agency would continue to work with complainant to
assist and support other job opportunities and/or transfers. According to
complainant, agency management did not assist him and support him in
finding other job opportunities. The agency noted that the AJ found
that complainant was discriminated against on the bases of his age
and reprisal when management stymied his efforts to find a position in
another region. The agency determined that this claim was rendered moot
by the AJ's recommended decision and its adoption of that decision.
On appeal, complainant contends that all of his attorney's fees have
been paid pursuant to the finding of discrimination except for the
$254.00 in fees incurred by his previous attorney. Complainant claims
that the $143.00 in mileage costs he sustained in traveling to that
attorney's office and a hearing should be reimbursed as a past pecuniary
out-of-pocket expense. With regard to his claim for $295.00 in mileage
expenses for daily care of his dog, complainant maintains that he included
evidence of points of origin and destination. Complainant states that
he traveled seven miles per day on an average of six days per week
over a total of 27 weeks. As for his hotel and apartment expenses,
complainant argues that these expenses were submitted in the form of
check registers with specific entries. With respect to his request for
$3,062.00 for house payments, utilities, heat and electrical expenses
for maintaining his Ironwood residence from January 1993 - June 1993,
complainant states that the agency was provided with a check register
outlining the payment of expenses. In terms of his request for $1,560.00
in mileage costs for traveling between Laona and Ironwood, complainant
states that he traveled this distance of 240 miles for 25 weeks at
$.26 per mile. Complainant notes that it is undisputed based on the
AJ's findings that he was employed and had to travel between Laona and
Ironwood. Complainant also claims that he should receive $260.00 for
the mileage costs that he incurred while searching for a new residence
from November 1992 until September 1993. Complainant states that this
expense would not have been incurred but for the discriminatory treatment.
According to complainant, the claimed cost was calculated at 100 miles
per month for ten months at $.26 per mile. With regard to his medical
bills and expenses, complainant contends that his psychiatrist's records
clearly established a causal connection between the discrimination
and his medical bills and expenses. Complainant maintains that he
provided itemized damages and related billing statements to establish
these out-of-pocket expenses. As for his request for a back pay award
of $38,209.00, complainant claims that Title VII requires an award
of compensatory damages which includes back pay. With respect to his
request for $9,464.00 for future medical expenses, complainant argues
that since the final decision was not issued until May 1, 1998, he should
receive compensatory damages to cover a period of almost three years.
Complainant notes that his psychiatrist had stated that his depression
was ongoing as long as the employment issues continue. As for his claim
for $150,000.00 in non-pecuniary damages, complainant maintains that he
has suffered ongoing emotional distress that includes severe depression,
severe personality change, loss of personal relationships, and the
need for medication to treat his condition. Complaints disputes the
agency's decision to limit its payment of compensatory damages to a one
year period. According to complainant, the effects of the discrimination
are continual, six and one-half years later.
ANALYSIS AND FINDINGS
Initially, we will address the agency's disposition of complainant's
allegation of noncompliance with a prior settlement agreement. Volume 64
Fed Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited
as 29 C.F.R. �1614.504(a)) provides that any settlement agreement
knowingly and voluntarily agreed to by the parties, reached at any
stage of the complaint process, shall be binding on both parties.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
Fed Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited as 29
C.F.R. �1614.504(b)) provides that the agency shall resolve the matter and
respond to the complainant, in writing. If the agency has not responded
to the complainant, in writing, or if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement or action.
The complainant may file such an appeal 35 days after he or she has served
the agency with the allegations of noncompliance, but must file an appeal
within 30 days of his or her receipt of an agency's determination.
Complainant did not raise until April 13, 1995, his claim that the agency
breached the settlement of his previous complaint by not assisting him
and supporting him in finding other job opportunities. The period in
which complainant did not receive this assistance and support was from
approximately August 1991 until November 1992. Clearly, given that
complainant filed a formal complaint on this issue on April 22, 1993,
complainant did not raise a claim of noncompliance within thirty days of
when he knew of the noncompliance. Therefore, we find that complainant
was not timely in raising his claim that the settlement agreement was
breached.
Section 102 (a) of the Civil Rights Act of 1991, 105 Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. �1981a, authorizes an
award of compensatory damages as part of the "make whole" relief for
intentional discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended. Section 1981a(b) (3) limits the total amount
of compensatory damages that may be awarded to each complaining party
for future pecuniary losses, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, and other non-pecuniary
losses, according to the number of persons employed by the respondent
employer. The limit for an employer with more than 500 employees, such
as the agency, is $300,000. 42 U.S.C. �1981a(b) (3) (D). Because to
compensatory damages provision of the Act is not retroactive, they are
not available for acts of discrimination occurring prior to the Act,
i.e., November 21, 1991. Landgraf v. USI Film Products, 511 U.S. 244
(1994). Compensatory damages also are not available for claims arising
under the Age Discrimination in Employment Act (ADEA) of 1967.
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly
or proximately caused by the agency's discriminatory conduct.
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. N-915.002 (July 14, 1992),
at 8. Pecuniary losses are out-of-pocket expenses that are incurred as a
result of the employer's unlawful action, including job-hunting expenses,
moving expenses, and other quantifiable out-of-pocket expenses. Id.
Past pecuniary losses are the pecuniary losses that are incurred prior
to the resolution of a complaint via a finding of discrimination,
an offer of full relief, or a voluntary settlement. Id. At 8-9.
Future pecuniary losses are losses that are likely to occur after
resolution of a complaint. Id. At 9. Non-pecuniary losses are emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of
life, injury to professional standing, injury to character and
reputation, injury to credit standing, and loss of health. Id.
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. There are no precise formulae for determining
the amount of damages payable for non-pecuniary losses. Damage awards
for non-pecuniary losses that have been assessed by juries and courts have
varied substantially from one another. Id. At 13. However, an award of
compensatory damages for non-pecuniary losses, including emotional harm,
should reflect the extent to which the respondent's discriminatory action
directly or proximately caused the harm and the extent to which other
factors also caused the harm. Id at 11-12. An award of compensatory
damages for non-pecuniary losses should also reflect the nature and
severity of the harm and the duration or expected duration of the harm.
Id at 14. The types of objective evidence that the agency may obtain
in assessing the merits of a claim for emotional distress damages
include statements from complainant concerning his emotional pain or
suffering, inconvenience, mental anguish, loss of enjoyment of life,
injury to professional standing, injury to character or reputation,
injury to credit standing, loss of health, and any other nonpecuniary
losses that are incurred as a result of the discriminatory conduct.
Statements from others, including family members, friends, and health
care providers could address the outward manifestations or physical
consequences of emotional distress, including sleeplessness, anxiety,
stress, depression, marital strain, humiliation, emotional distress,
loss of self-esteem, excessive fatigue, or a nervous breakdown.
Past Pecuniary Damages
Complainant's claim for past pecuniary damages relates to such items as
kennel fees, hotel costs, rent, utility bills, mortgage payments, medical
bills and expenses, mileage costs, and his personal time. In support
of his claim, complainant submitted a kennel bill of $ 310.00 for care
of his dog, and a security deposit receipt of $380.00 dated April 23, 1993
for his apartment rent. Complainant also submitted his own records of
charges that affected his bank accounts. Further, complainant provided
invoices that he received for prescription medicines and the front copies
of checks that he paid in 1990, for various forms of medical treatment.
We agree with the agency that complainant was entitled to $310.00 for
the kennel care costs that he incurred. Complainant experienced this
expense during his relocation period. The discrimination that he was
subjected to caused complainant to feel that he needed to leave his
position at the Ottawa National Forest. The agency denied complainant's
request for mileage costs related to care of his dog. We find that
since on appeal, complainant explained that he traveled seven miles per
day on an average of six days per week over 27 weeks at $.26 per mile,
complainant has provided sufficient evidence for an award of $295.00
for mileage costs. With regard to the claims for hotel costs, rent,
mortgage payments on complainant's home in Ironwood, and utility bills,
we find that complainant has failed to submit sufficient documentation
to establish that he incurred the alleged expenses. Complainant has not
provided canceled checks, copies of bills, or other forms of evidence that
sufficiently support his claim. Also, we shall not award complainant
damages for his meals and associated expenses. It is fair to conclude
that complainant would have had similar meal requirements notwithstanding
the discrimination, and in any event, he has not documented the expenses
that he allegedly incurred. Further, complainant is not entitled as a
form of compensatory damages to the requested amounts for the personal
time that he expended with regard to traveling or any of the other
relevant activities.
As for complainant's request for $260.00 in mileage costs pertaining
to his new home search, and $1,560.00 in mileage costs relating to his
trips between Laona and Ironwood, we note that complainant explained on
appeal that from November 1992 until September 1993, he searched for
a new residence and also traveled back and forth for 25 weeks between
Ironwood and Laona. Inasmuch as he would not have incurred this travel
expense had he not been discriminated against, we find that complainant
is entitled to this mileage allowance in the combined amount of $1,820.00.
With regard to complainant's claim for past pecuniary damages pertaining
to medical bills and expenses, we initially note that there is no
entitlement to compensatory damages for matters that occurred prior
to November 21, 1991, the effective date of the Civil Rights Act of
1991. Landgraf, supra. Therefore, all amounts requested for medical
treatment and associated expenses that occurred prior to November 21,
1991 are denied. As for the medical treatment and associated expenses
that occurred subsequent to November 21, 1991, we note that the agency
awarded $796.25 for treatment from June 17, 1994 through February 27,
1996, and $353.60 for associated mileage costs. In granting this
award, the agency noted that complainant's psychiatrist referenced
the relationship between complainant's depression and the agency's
failure to resolve ongoing employment issues. However, as the agency
noted with regard to other medical expenses claimed by complainant,
complainant stated that the discriminatory conditions he experienced
did not exist after he transferred from the Ottawa National Forest in
December 1992. The record indicates that the stress and depression
experienced by complainant during the treatment period of June 17,
1994 through February 27, 1996 were attributable to the delays in the
processing and investigation of the instant complaint. The Commission
notes that compensatory damages provisions were not added to EEO statutes
to address how an agency litigates an EEO complaint alleging employment
discrimination, but to address how an agency treated an applicant or an
employee in an employment-related context. See Appleby v. Department
of the Army, EEOC Appeal 01933897 (March 4, 1994). Therefore, the
Commission has held that a complainant is not entitled to compensatory
damages caused by the stress of participating in the EEO process.
See Rountree v. Department of Agriculture, EEOC Appeal No. 01941906
(July 7, 1995). We find that the agency awards of $796.25 and $353.60
were not warranted as complainant failed to establish that his medical
treatment was necessitated by the discrimination that occurred prior to
his move from the Ottawa National Forest in December 1992. Based on the
same reasoning, we also find that the medication costs incurred in 1994,
1995, and 1996, as well as the services and costs related to complainant's
treatment by St. Mary's Hospital and the Northern Wisconsin Psychological
Associates shall not be awarded as compensatory damages.
With respect to complainant's request for back pay in the amount of
$38,209.00 and the reimbursement of sick leave, we note that Section
1981a (b)(2) indicates that compensatory damages do not include back pay,
interest on back pay, or any other type of equitable relief authorized by
Title VII. In light of the fact that this appeal concerns the agency's
final decision on compensatory damages, we find that complainant's claim
for back pay and reimbursement of sick leave are not potential forms of
compensatory damages and they are denied in the context of this decision.
As for complainant's request for attorney's fees of $254.00 with regard to
his initial attorney in this matter, we note that complainant submitted
a copy of a check for $150.00 made payable to that attorney. However,
complainant has provided no bill from that attorney or an explanation
as to what services were rendered. Therefore, we find that the agency
appropriately denied complainant's request for $254.00 in attorney's
fees. As for his request for $143.00 in mileage costs associated with
obtaining legal services from this attorney, complainant did not provide a
sufficient explanation as to how this expense was calculated. Therefore,
he is not entitled to an award for mileage costs. Complainant further
requested that he receive $5,600.00 for the time that he spent working on
his complaint. Complainant has not claimed that he was denied official
time to work on his complaint. We find that his use of personal time
to work on the instant complaint is not compensable.
Future Pecuniary Expenses
Complainant submitted a claim for $9,464.00 for future costs of medical
expenses. This amount was arrived at by calculating $2,247.00 per year
at 6% interest for five years. In support of this claim, complainant
submitted his psychiatrist's letter dated June 8, 1995, which stated
that complainant's depression was ongoing as long as the employment
issues continue. However, as previously noted, the record supports the
conclusion that the condition complainant was treated for during this
period arose from his frustration with the processing of the instant
complaint. Complainant has not established that the estimated future
pecuniary expenses were directly attributable to the discrimination that
he was subjected to from November 21, 1991 to December 1992.
Nonpecuniary Damages
Complainant requests an award of $150,000.00 in compensatory damages for
stress whereas the agency issued an award of $9,000.00. In support of his
claim, complainant submitted a narrative account of the pain and suffering
he states that he has endured since the discrimination commenced.
As previously indicated, our analysis of this claim focuses on the impact
of the discrimination that complainant experienced from November 21,
1992 to December 1992. In his statement, complainant explained that
within a month of the settlement of his original complaint in July
1991, the agency again began to discriminate against him. According to
complainant, the discriminatory conditions continued until he transferred
to the Nicolet National Forest in December 1992. Complainant indicated
that the criticism of his work caused him to suffer stress and a loss
of interest in recreational activities. Complainant explained that he
experienced stress because of the difficulty he had in selling his home
in Ironwood and in finding a new house in the Laona area. According to
complainant, it was stressful for him to move after being in one location
for 18 years as he suffered the loss of close friendships that he had
formed in Ironwood. It is also apparent from his daughter's letter that
leaving his home adversely affected his relationship with his daughter.
Complainant further indicates that he was humbled by being placed in a
position of lesser stature and importance. As previously stated, the
stress that complainant has experienced due to the delays in the handling
of the instant complaint is not compensable. According to complainant's
own statement, the agency's handling of his complaint was the principal
cause of his stress after he relocated. Given that statement, we are
not persuaded by the statement from his former fiancee that complainant's
"despondent state of mind" since October 1994 was mostly due to the
harassment he experienced at the Ottawa National Forest. Further, the
statement from complainant's psychiatrist in June 1995 that his major
depression would continue as long as the employment issues continue is
not sufficient to establish that the condition was linked to any agency
actions other than the agency's handling of the instant complaint.
It is a Commission goal to make damage awards for emotional harm
consistent with awards in similar cases. In Bever v. Department of
Agriculture, EEOC Appeal No. 01953949 (October 31, 1996), the Commission
awarded $15,000.00 for non-pecuniary damages in order to compensate the
complainant. According to the complainant, the agency's actions creating
a hostile work environment caused her to develop situational anxiety and
as a result she needed to take mood elevators. The Commission noted that
her symptoms included uncontrolled crying, weight loss, and depression.
In Sinnott v. Department of Defense, EEOC Appeal No. 01952872 (September
19, 1996), the Commission awarded $20,000.00 in non-pecuniary damages
for the emotional suffering that the complainant endured as a result of
sexual harassment. In that case, the evidence showed that complainant
had suffered emotionally and that her marriage had deteriorated.
In Rountree v. Department of Agriculture, EEOC Appeal No. 01941906
(July 7, 1995), affirmed, EEOC Request No. 05950919 (February 15, 1996),
the Commission ordered an award of $8,000.00 in nonpecuniary damages
where the complainant's statement and a psychologist's report indicated
that some of the complainant's emotional distress, including feelings of
inadequacy, failure, and depression, were the result of a discriminatory
performance appraisal and the denial of bonus pay based on that appraisal.
Having carefully considered the facts of this case in conjunction with
previous awards of compensatory damages by the Commission, we find
that complainant is entitled to nonpecuniary damages in the amount of
$15,000.00. In reaching this amount, the Commission has considered a
number of factors. For example, we considered the nature and severity of
the discrimination, as well as the nature and severity of complainant's
emotional pain and suffering. We considered the duration of the harm
that resulted from the discrimination. Additionally, we considered the
amounts awarded in similar cases. Based on all of these considerations,
we find that $15,000.00 is a proper award for the emotional harm which
complainant has suffered.
CONCLUSION
For the foregoing reasons, the final agency decision is MODIFIED to
reflect the following damage awards. Complainant is awarded $15,000.00
in nonpecuniary damages and $2,425.00 for past pecuniary damages.
Complainant is entitled to interest on $17,425.00 from June 27, 1996
through the date of this decision. Complainant is also entitled to
reasonable attorney's fees incurred in the pursuit of the instant appeal.
ORDER
The agency is ORDERED to take the following actions:
The agency shall issue a check to the complainant for $17,425.00 plus
interest from June 27, 1996 through the date of this decision, within
(60) calendar days of the date this decision becomes final.
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.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
April 27, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2The record does not establish when complainant received the final
agency decision. Absent evidence to the contrary, we find that the
instant appeal was timely filed.