01a00811
08-31-2000
Anita Hernandez-New, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E., S.W. Areas), Agency.
Anita Hernandez-New v. United States Postal Service
01A00811
August 31, 2000
Anita Hernandez-New, )
Complainant, )
) Appeal No. 01A00811
v. ) Agency No. 4G-780-2898-93
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E., S.W. Areas), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision which
awarded her no compensatory damages for unlawful employment discrimination
on the bases of race (White), national origin (Hispanic), sex (female),
reprisal (prior EEO activity), 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 is dated June 19, 1998. We discuss below whether the
appeal can be accepted after the complainant withdrew her appeal to
pursue her claim in U.S. District Court, but had her complaint dismissed
by the court.
ISSUE PRESENTED
The issue on appeal is whether the agency was correct in awarding no
compensatory damages after we entered a finding of discrimination.
Background
On appeal, complainant requests that we reopen her appeal she originally
filed on July 16, 1998 but that she withdrew on March 11, 1999.
Her appeal concerned the agency's denial of her claim for compensatory
damages. After withdrawing her administrative appeal, the complainant
filed a complaint in U.S. District Court seeking a determination on the
issue of compensatory damages. The U.S. District Court, on motion of
the agency, dismissed the complaint for failure to exhaust administrative
remedies. The agency gave no argument or opposition to the complainant's
request to reopen her appeal.
Final Agency Decision Regarding Compensatory Damages
We remanded the issue of compensatory damages to the agency on or
about August 11, 1997 after reversing its final decision and finding
discrimination. Our decision found violations of Title VII based on race,
sex, national origin and reprisal. The agency concluded the complainant
was not entitled to an award of compensatory damages because she did not
seek medical treatment or psychological attention for emotional distress.
It also found that the complainant was not hospitalized nor required to
take medication for an emotional disorder. The agency discounted the
complainant's doctor's statement which stated � it is generally believed
that stress may have an adverse effect on the natural history of many
illnesses including cancer.� It dismissed the doctor's statement because
he was not the complainant's treating physician for her cancer. The
agency also found no objective clinical evidence that the complainant's
stress was related to the discriminatory incident of having to report
for a fitness for duty examination. Furthermore, the agency concluded,
the complainant had a prior history of cancer which discredited her claim
that her stress aggravated or even caused her second diagnosis of cancer.
Finally, the agency concluded that the complainant did not provide
documentation that the sick leave, leave without pay or annual leave
she took was related in any way to the discriminatory incident.
The complainant on the other hand, argued she was entitled to the maximum
amount allowed under the law, including all medical expenses incurred for
cancer and intestinal surgeries she had post-dating the discriminatory
conduct. She further argued, she was entitled to compensation for stress
she has experienced dating from June 1993 through September 1998 the
date of her last physician's record documenting work-related stress.
Lastly, the complainant seeks restoration of all leave she has taken
from 1993 through July 1998.
The complainant does not contest the agency's award of attorney's fees
of $19,900.00.
ANALYSIS AND FINDINGS
As a preliminary matter, we find that the U.S. District Court dismissed
the complainant's complaint based on her failure to exhaust her
administrative remedies. Because the court dismissed the complainant's
claim without a decision on the merits of her entitlement to compensatory
damages, we reopen the administrative forum to her appeal. Quintero
v. U.S. Postal Service, EEOC Request No. 05920926 ( January 7, 1993);
See also Roland v. Tennessee Valley Authority, EEOC Request No. 05900461
(September 7, 1990).
Addressing the merits of the complainant's claim for compensatory
damages, Congress intended an award of compensatory damages to be
part of make-whole relief for intentional discrimination. (Section 102
Civil Rights Act of 1991;105 Stat. 1071, Publ. L. No. 102, codified
at 42 U.S.C. �1981a)<2>. Our Enforcement Guidance outlines the
type of evidence acceptable for proof of a claim for compensatory
damages. Enforcement Guidance: Compensatory and Punitive Damages
Analyzed Under �102 of the Civil Rights Act No. 915.002 (July 14,
1992). (Guidance). In this regard, emotional harm may be established by
testimony. Id. p. 12. The complainant must establish a causal connection
between the intangible injuries incurred and the agency's illegal
actions. Id.
The complainant in this case, established by her testimony that she
suffered emotional distress, depression, anxiety, embarrassment,
humiliation, belittlement, degradation of character, and damage to
her self-esteem. In addition, one of her physicians who treated her
for breast cancer stated that �stress may have an adverse effect on the
natural history of many illnesses including cancer.� During the period
of the complainant's diagnosis and treatment for cancer, the same doctor
stated that �any added stress during that time could have adversely
affected her health and well being.� Another of the complainant's
physicians noted his belief that emotional stress could have been an
etiologic factor in her breast cancer. Thus, there was ample evidence to
support the complainant's claim that she experienced emotional distress
and that, at the very least, it aggravated her breast cancer condition
during the period from its diagnosis in 1995 to March 1996. Notably,
the agency offered no medical evidence to the contrary.
Notwithstanding this proof, when the complainant has a pre-existing
condition, as she did here, the agency would only be liable for the
additional harm or aggravation caused by the discriminatory conduct.
See, McCann v. Department of the Air Force, EEOC No. 01971851 (October
28, 1998). Here, the complainant did not differentiate what portion
of her medical expenses for her cancer and intestinal surgeries and
treatment she contended were due to the added stress she experienced from
the discrimination in 1993. She also did not outline what specific sick
leave, annual leave and leave without pay requests were related to the
emotional distress she experienced. By her submission of documentation,
she argues that leave related to her emotional distress should be
restored from June 1993 and lasting through September 1998 based on
a single incident of discrimination. This totaled 300 hours of sick
leave, 200 hours of annual leave and 700 hours of leave without pay.
We are not persuaded that this is a reasonable conclusion.
In determining an amount of compensatory damages which would make the
complainant whole for the discriminatory conduct, we also consider
the duration of the conduct. Guidance p. 10. See also, Feris v.
U.S. Environmental Protection Agency, EEOC No. 01983167 (September 18,
1998). From the evidence in the record, the complainant was required to
appear for a psychiatric fitness for duty exam in June 1993 and placed
on administrative leave from June 2 to June 14, 1993, a 12 day period.
After that time, she returned to her regular employment. The complainant
raised no other incidents of discrimination after that time. The AJ found
that the agency retaliated against the complainant for her extensive
EEO activity and that she was discriminated against based on her race,
national origin and sex. We adopted the AJ's findings. In addition, the
complainant persuasively argued that she did not have any pre-existing
psychological disorders according to the agency's own independent medical
examination. Therefore, the emotional distress she experienced was due
to the agency's discriminatory conduct. Based on her testimony about
the incident, her physician's statements, the bases of discrimination
on which the complainant prevailed which included retaliation, and the
evidence that the stress aggravated a number of her medical conditions, we
conclude the complainant should receive non-pecuniary compensatory damages
in the amount of $18,000.00. See, e.g. Sinnott v. Department of Defense,
EEOC No. 01952872 (September 19, 1996) ( $20,000.00 awarded in sexual
harassment case spanning 6 month period); Rountree v. U.S. Department of
Agriculture, EEOC No. 01941906 (July 5, 1995) ( $8,000.00 compensatory
damages awarded for decreased sleep, libido, physical activity and for
reprisal) ; Feris v. Environmental Protection Agency, EEOC No. 01983167
(September 18, 1998) ($35,000.00 in compensatory damages for 2 years
of discriminatory conduct). In addition to this amount, we find the
complainant demonstrated a causal connection between the incident and
her sick leave requests in the amount of 150 hours. We make no award
for medical expenses incurred by the complainant because she failed to
outline those which were reasonably related to the stress caused by the
agency's actions.
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 REVERSE the agency's
final decision and order the agency to take remedial actions in accordance
with this decision and order below.
ORDER
The agency is ORDERED to take the following action:
The agency shall pay the complainant $18,000.00 in compensatory damages
within 45 calendar days of the date this decision becomes final.
The agency shall restore the complainant's sick leave balance to equal
150 hours.
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).
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 appeal less those amounts already paid. 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.
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 (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or filed your appeal
with the Commission. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
August 31, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1 On 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.
2 The Supreme Court upheld the Commission's authority to award
compensatory damages against a federal agency. West v. Gibson, 119
S. Ct. 1906 (1999).