01961574
10-27-1998
Appellant,) ) v.) Appeal No. 01961574 ) Agency No. SSA-966-93 Kenneth S. Apfel,) Hearing No. 260-95-7076X Commissioner,) Social Security Administration,) Agency.
Regina Sue Robison-Matheson,)
Appellant,)
)
v.) Appeal No. 01961574
) Agency No. SSA-966-93
Kenneth S. Apfel,) Hearing No. 260-95-7076X
Commissioner,)
Social Security Administration,)
Agency.)
______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final agency decision concerning her equal
employment opportunity (EEO) complaint, which alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented are: (1) whether appellant has established by a
preponderance of the evidence that the agency discriminated against her
on the bases of sex (female) and reprisal (prior EEO activity) when she
was subjected by her supervisor, the then-Area Director, to disparate
treatment which included undermining her authority with her staff;
and (2) whether the agency properly concluded that appellant was not
entitled to any compensatory damages.
BACKGROUND
In a complaint dated September 17, 1993, appellant, then a District
Manager, GM-14, at the agency's Milwaukee (Downtown), Wisconsin,
District Office, alleged that the agency discriminated against her as
delineated in Issue 1 in the above-entitled statement, "Issues Presented."
The agency conducted an investigation, provided appellant with a copy of
the investigative report, and advised appellant of her right to request
either a hearing before an EEOC administrative judge (AJ) or an immediate
final agency decision (FAD). Appellant requested a hearing, which was
held July 25, 1995. Thereafter, the AJ issued a recommended decision (RD)
finding discrimination and awarding, inter alia, $20,000 in non-pecuniary
compensatory damages, plus an unspecified amount of pecuniary damages.
The RD was received by the agency on October 16, 1995. On November 27,
1995, the agency rejected the findings in the RD and issued a FAD finding
no discrimination. It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
The Commission has reviewed the record, consisting of the investigative
report, the hearing transcript, the RD, the FAD, and the parties'
statements on appeal. The Commission concludes that, in all material
respects, the AJ accurately set forth the facts giving rise to the
complaint and the law applicable to the case. The Commission further
concludes that the AJ correctly determined that appellant had established,
by a preponderance of the evidence, that the agency discriminated against
her as alleged in her complaint. Accordingly, the Commission herein
adopts the AJ's recommended findings of fact and conclusions of law
insofar as they relate to the finding of discrimination. With regard
to the matter of compensatory damages, however, the Commission finds
that the AJ's recommended relief is not supported by the record.
Legal Standards for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S. C. �1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id. In Jackson v. U.S. Postal
Service, EEOC Appeal No. 01923399 (November 12, 1992), req. for
recon. den'd, EEOC Request No. 05930306 (February 1, 1993), the Commission
held that Congress afforded it the authority to award such damages in
the administrative process. See also Turner v. Dept. of the Interior,
EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998).
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Notice No. N
915.002, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992). Briefly stated, the
complainant must submit evidence to show that the agency's discriminatory
conduct directly or proximately caused the losses for which damages
are sought. Id. at 11-12, 14; Rivera v. Dept. of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994). The amount awarded should reflect the
extent to which the agency's discriminatory action directly or proximately
caused harm to the complainant and the extent to which other factors may
have played a part. EEOC Notice No. N 915.002 at 11-12. The amount of
non-pecuniary damages should also reflect the nature and severity of
the harm to the complainant, and the duration or expected duration of
the harm. Id. at 14.
In Carle v. Dept. of the Navy, the Commission explained that �objective
evidence� of non-pecuniary damages could include a statement by the
complainant explaining how he or she was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993). 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. Contrary to the assertion of the agency in this
case, however, a complainant is not required to submit evidence from
�a certified medical practitioner recognized by the agency� in order to
establish entitlement to compensatory damages.
Evidence Bearing on Compensatory Damages
Appellant requested reimbursement for medical expenses incurred for
treatment of depression, including psychotherapy and medication;
reimbursement for medical expenses incurred in connection with an
episode of chest pain which resulted in hospitalization for testing;
reimbursement for annual and sick leave used during episodes of upset
following telephone calls and meetings with her then-supervisor; and
$20,000 for emotional injury.
With regard to appellant's treatment for depression, appellant submitted
a number of treatment notes from her therapist. However, the notes do
not contain a history of appellant's illness, findings by the therapist
(as opposed to symptoms reported by appellant), a diagnosis, a prognosis,
or any statement that appellant's depression is related to the actions of
her then-supervisor. The notes merely state that appellant reports sleep
disturbances, lack of appetite, difficulty concentrating, and tearfulness.
Also, no bills for this treatment were submitted. Further, although the
record reflects that appellant began psychiatric treatment in January
1992, and the discrimination began in 1992, the treatment notes submitted
by her date back only to May 1994.
Appellant was the only witness who addressed the effects of the
discrimination on her emotional well-being. Appellant merely related,
however, that she began to see a therapist and to take medication for
depression.
With regard to the episode of chest pain, which occurred May 15, 1995,
appellant submitted voluminous physicians' notes and reports, as well
as hospital bills. However, there is no statement in any of these
materials relating the episode of chest pain to her employment. It is
merely noted that appellant reported having experienced similar pain
recently upon unspecified �stress� rather than upon physical exertion.
It is noted that this episode occurred five months after appellant's
then-supervisor retired (effective January 3, 1995).
With regard to reimbursement for sick leave and annual leave, actually a
matter of equitable relief rather than compensatory damages, appellant
submitted a table she averred was prepared from contemporaneous leave
records maintained by the agency. Appellant stated that during 1993
and 1994, she used 98.75 hours of sick leave and 104.75 hours of annual
leave when she would leave work after becoming upset following telephone
calls and meetings with her supervisor, and to attend therapy.
Damages Payable
With regard to past pecuniary damages, the Commission finds that
appellant has not submitted any evidence which establishes a causal
connection between her previously incurred medical expenses and the
discriminatory actions of her then-supervisor. Accordingly, appellant
is not entitled to any past pecuniary damages. The Commission further
finds that appellant has not submitted any evidence bearing on future
pecuniary damages, i.e., continuing psychotherapy, or that such expenses
would be causally related to the past discrimination. Accordingly,
appellant is not entitled to any future pecuniary damages.
With regard to non-pecuniary damages, the Commission notes that there
is not a great deal of evidence to support such an award. None of
appellant's medical evidence relates either her depression or her
episodes of chest pain to the actions of her then-supervisor. Further,
appellant's testimony does not describe the effects of the discrimination
on her except to state that she is taking medication for depression.
The psychotherapist's notes, however, show that appellant reported sleep
disturbances, lack of appetite, difficulty concentrating, and tearfulness
which appellant attributed to her then-supervisor's conduct.
Appellant has requested $20,000 in non-pecuniary damages. There are
no "hard and fast" rules governing the amount to be awarded. However,
non-pecuniary damages must be limited to the sums necessary to compensate
the injured party for actual harm, even where the harm is intangible,
see Carter v. Duncan-Hogans, Ltd., 727 F.2d 1225 (D.C. Cir. 1994),
and should take into account the severity of the harm and the length
of time that the injured party has suffered from the harm. Carpenter
v. Dept. of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995); EEOC
Notice No. N 915.002 at 14. The Commission notes that for a proper
award of non-pecuniary damages, the amount of the award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th
Cir. 1989); US EEOC v. AIC Security Investigations, Ltd., 823 F.Supp. 573,
574 (N.D. Ill. 1993).
Several Commission decisions have awarded compensatory damages in
cases somewhat similar to appellant's. Pailin v. Dept. of Defense,
EEOC Appeal No. 01954350 (January 26, 1998) ($2,500 nonpecuniary damages
where appellant was denied training on the basis of race, and testified
that she experienced tension, depression, and withdrawal from coworkers);
Demeuse v. U.S. Postal Service, EEOC Appeal No. 01950324 (May 22, 1997)
($1,500 nonpecuniary damages where appellant was frisked by a supervisor,
and testified as to exacerbation of post-traumatic stress disorder);
Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (April 18,
1996) ($3,000 in nonpecuniary damages for sexual harassment where
appellant presented primarily nonmedical evidence that she was irritable,
experienced anxiety attacks, and was shunned by her co-workers).
Taking into account the evidence of non-pecuniary damages submitted
by appellant, the Commission finds that appellant is entitled to
non-pecuniary damages in the amount of $2,000. This amount takes into
account the severity and duration of the harm done to appellant by
her then-supervisor's actions. The Commission further notes that this
amount meets the goals of not being motivated by passion or prejudice,
not being "monstrously excessive" standing alone, and being consistent
with the amounts awarded in similar cases. See Cygnar, 865 F.2d at 848;
AIC Security Investigations, 823 F.Supp. 573 at 574.
Equitable Relief
With regard to appellant's request that she be reimbursed for sick leave
and annual leave, or that the leave be restored, the Commission finds
that the evidence of record is insufficient to establish what amount of
leave was taken on account of the discrimination. Appellant submitted a
table showing how much leave she took overall in 1993 and 1994, and what
part of that leave she attributed to the effects of the discrimination.
However, appellant did not specify the dates on which the leave was taken,
how much leave was taken, and what specifically precipitated the need to
use the leave. On remand the agency will examine its leave records, and
solicit such additional information from appellant regarding her leave
usage as may be necessary, and will restore to appellant the amount of
sick leave and annual leave used on account of the discrimination.
The AJ also ordered that appellant's record be expunged of negative
memoranda placed there by her then-supervisor; that appellant's fiscal
year 1993 performance rating be changed from �Excellent� to �Outstanding�;
that the agency provide EEO training for its supervisors and managers
at its Region V regional and Milwaukee (Downtown), Wisconsin, offices;
that appellant receive attorney fees; and that the agency post a notice
of the finding of discrimination. These remedies are appropriate,
and will be included in the relief ordered below.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the final agency decision.
ORDER (C1092)
The agency is ORDERED to take the following remedial action:
(1) Within ten (10) days of the date on which this decision becomes final,
the agency shall tender to appellant compensatory damages in the amount
of $2,000.
(2) Within ten (10) days of the date on which this decision becomes final,
the agency shall expunge appellant's official records of any memoranda
written by her former supervisor which contain derogatory information.
(3) Within ten (10) days of the date on which this decision becomes final,
the agency shall raise appellant's performance rating for fiscal year 1993
from �Excellent� to �Outstanding.� The agency shall also award appellant
any performance award attached to an �Outstanding� rating, offset by
whatever award appellant may have received for the �Excellent� rating.
(4) Within fifteen (15) days of the date on which this decision becomes
final, the agency shall examine its leave records to determine what
amounts of sick leave and annual leave must be restored to appellant.
The agency shall solicit from appellant such additional information as
may be necessary to this determination. The agency shall complete its
inquiry and shall restore to appellant the appropriate amounts of sick
leave and annual leave no later than forty-five (45) days after the date
on which this decision becomes final.
(5) The agency shall pay appellant's reasonable attorney fees and costs,
as set forth in the paragraph below entitled, �Attorney Fees.�
(6) Within ninety (90) days of the date on which this decision becomes
final, the agency shall provide EEO training, particularly on the topics
of sex discrimination and reprisal discrimination, to managerial and
supervisory personnel in its Region V regional and Milwaukee (Downtown),
Wisconsin, offices.
(7) The agency shall post a notice of the finding of discrimination in
accordance with the paragraph below entitled, �Posting Order.�
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Milwaukee (Downtown), Wisconsin,
office copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY FEES (H1092)
If appellant has been represented by an attorney (as defined by 29
C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney 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 (K0595)
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
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). Appellant 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. ��
1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant 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. ��1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
October 27, 1998
DATE Frances M. Hart
Executive Officer
Executive Secretariat
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Social Security Administration, Region V, supports and will comply
with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Social Security Administration, Region V, has been found to have
discriminated against the individual affected by the Commission's
finding. The Social Security Administration, Region V, shall raise the
affected individual's performance rating; remove derogatory information
from the affected individual's personnel files; provide EEO training
for Region V managerial and supervisory personnel; and shall pay the
affected individual compensatory damages and attorney fees.
The Social Security Administration, Region V, will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws and will not retaliate against employees
who file EEO complaints.
The Social Security Administration, Region V, will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614