01973346
03-30-2000
Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Hazel M. Whitmire v. Department of the Air Force
01973346
March 30, 2000
Hazel M. Whitmire,
Appellant,
v.
F. Whitten Peters,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01973346
Agency No. TE1M94065
Hearing No. 310-95-5921X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning her allegation that she was discriminated against on the
basis of, in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.<1> The Commission accepts this
appeal in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether appellant established that she was
entitled to compensatory damages beyond the amount of $5,000.00.
BACKGROUND
On February 10, 1994, appellant filed a formal complaint based on sex
(sexual harassment) when she was subjected to a hostile work environment
from about June 1993 through April 1994. The agency accepted the
complaint for investigation and complied with all of our procedural and
regulatory prerequisites. At the conclusion of the agency investigation,
appellant requested a hearing before an EEOC Administrative Judge
(AJ). Thereafter, a hearing was held on April 25, 1995. On July 5,
1995, the AJ issued a Recommended Decision (RD), dated June 23, 1995,
finding discrimination. Specifically, the AJ found that the appellant
was subjected to an extended and continued pattern of sexual harassment
when her immediate supervisor: used the term "sexual leave" whenever
she requested annual or sick leave; intimidated and stalked appellant,
and stayed in her work area; constantly stared at her and spoke to her
in a harsh and intimidating manner; and threatened her with an adverse
appraisal. The AJ further concluded that the agency failed to take
prompt and effective action once it became aware of the harassment.
Additionally, the AJ found that appellant was entitled to compensatory
damages for the emotional distress she suffered due to the agency's
discriminatory action. On September 8, 1995, the agency issued a
final decision, concurring with the AJ's conclusion that appellant was
discriminated against based on hostile environment sexual harassment.
The agency adopted the AJ's recommended relief and afforded appellant an
opportunity to submit evidence in support of her claim for compensatory
damages.
Thereafter, appellant presented her request for compensatory damages,
along with supporting documentation (request). In appellant's request,
she submitted a personal statement, one from her husband and several from
coworkers, which described the emotional distress and mental anguish
she suffered. Appellant failed to present any medical documentation
concerning any treatment she might have received for her emotional
distress and failed to produce any documentation to show out-of-pocket
expenses. While appellant presented a statement reflecting an estimation
of costs in the amount of $2,000.00 to $3,000.00 for expected future
counseling, she failed to present evidence from a medical professional to
substantiate this request for future pecuniary damages. Furthermore,
while appellant sought medical treatment for the stress related to
her involvement in the EEO process, there was no evidence that she
sought medical treatment for the alleged discrimination. In response
to appellant's claim, the agency Commander issued a determination that
appellant had failed to establish any entitlement to compensatory damages.
Subsequently, in accordance with agency procedure, appellant requested
that the agency issue a final decision on the issue of compensatory
damages because she was not satisfied with the Commander's determination.
On February 13, 1997, the agency issued a FAD finding that appellant
was entitled to $5,000.00 in compensatory damages. Specifically,
the agency concluded that appellant had: (1) failed to make a claim
for past pecuniary losses; and (2) failed to establish entitlement
to future pecuniary damages. Nevertheless, the agency concluded that
appellant had established emotional harm caused by the discrimination.
The agency conducted an analysis of compensatory damage awards in similar
cases and concluded that appellant was entitled to $5,000.00.
ANALYSIS AND FINDINGS
There is no dispute in this case regarding the availability of
compensatory damages. The investigative record supports the agency
and AJ determinations that appellant was subjected to discrimination,
and entitled to an award of compensatory damages incurred as a result
thereof. Nevertheless, we find that appellant failed to establish that
she was entitled to past pecuniary losses or future pecuniary losses.
In the record before the Commission, appellant failed to provide
any evidence concerning medical bills and failed to present evidence
detailing or substantiating any out-of-pocket expenses. With respect
to future pecuniary losses, appellant provided no documentation of the
nature, extent, or duration of any future visits to a psychologist or of
future requirements for medication. See Smith v. Department of Defense,
EEOC Appeal No. 01943844 (May 9, 1996). Consequently, the only issue
before the Commission is the amount of nonpecuniary damages appellant
is entitled to.
In determining the amount of a compensatory damages award, we are
guided by the principle that a compensatory damages award is limited
to the sums necessary to compensate appellant for the actual harm
caused by the agency's discriminatory action and attempt to affix
a reasonable dollar value to compensate her for that portion of her
emotional distress that was caused by the discrimination. EEOC Notice
No. N915.002 at 13. Specifically, an award of compensatory damages
for nonpecuniary losses, including emotional harm, should reflect the
extent to which the respondent directly or proximately caused the harm,
and the extent to which other factors also caused the harm. Moreover,
we note that for a proper award of nonpecuniary 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); EEOC v. AIC Security Investigations,
Ltd., 823 F. Supp. 571, 574 (N.D. Ill. 1993).
Additionally, the Commission has held that evidence from a health care
provider is not a mandatory prerequisite for recovery of compensatory
damages. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). Furthermore, courts have held that "expert testimony
ordinarily is not required to ground money damages for mental anguish
or emotional distress." Sanchez v. Puerto Rico Oil Co., 37 F.3d 712,
724 (1st Cir. 1994), citing Wulf v. City of Wichita, 883 F.2d 842, 875
(10th Cir. 1989); Busche v. Burkee, 649 F.2d 509, 512 n.12 (7th Cir.),
cert. denied, 454 U.S. 897 (1981). A complainant's own testimony,
along with the circumstances of a particular case, can suffice to
sustain his or her burden in this regard. See U.S. v. Balistrieri,
981 F.2d 916, 932 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993)
(housing discrimination). As the court noted in Balistrieri, "[t]he
more inherently degrading or humiliating the defendant's action is, the
more reasonable it is to infer that a person would suffer humiliation or
distress from that action; consequently, somewhat more conclusory evidence
of emotional distress will be acceptable to support an award for emotional
damages." Nonetheless, the absence of supporting evidence may affect the
amount of damages deemed appropriate in specific cases. Lawrence v. United
States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996).
In several decisions the Commission has awarded nonpecuniary damages for
emotional distress or mental anguish. In White v. Department of Veterans
Affairs, EEOC Appeal No. 01950342 (June 13, 1997), the Commission ordered
an award of $5,000.00 in nonpecuniary damages where the complainant's
testimony and his psychologist's report indicated that the harassment
the complainant endured, which took both sexual and nonsexual forms,
led appellant to suffer from anxiety, depression, emotional fatigue,
occasional nightmares, and insomnia. In Benson v. Department of
Agriculture, EEOC Appeal No. 01952854 (June 27, 1996), the Commission
affirmed the agency's award of $5,000.00 in nonpecuniary damages where the
complainant, his relatives, and his colleagues offered testimony regarding
the embarrassment and humiliation that the complainant suffered at work
as a result of the denial of promotional opportunities, a suspension,
and other adverse actions. In Miller v. United States Postal Service,
EEOC Appeal No. 01956109 (January 23, 1998), the Commission ordered
an award of $7,500.00 in nonpecuniary damages where the complainant
produced scant evidence to support his claim and the agency, despite a
request by the Commission, failed to provide a copy of the documentary
evidence that complainant had submitted.
Having carefully considered the facts of this case, the Commission
finds that the agency arrived at a fair determination when it awarded
appellant nonpecuniary damages in the amount of $5,000.00. In reaching
this amount, the Commission considered a number of factors, including: the
nature and severity of the discrimination, and the nature and severity of
appellant's mental anguish and related symptoms. We also considered that
some of appellant's emotional distress during the time-frame for which she
claimed entitlement to damages was attributable to factors not related
to the discrimination. For instance, the only substantiated treatment
was for the stress and anxiety related to pursuing the EEO complaint
process. We also note that appellant failed to present anything more
than testimonial statements regarding her mental anguish to assist the
Commission in arriving at a reasonable amount of damages. The record
contains no psychiatric evaluations or evidence that appellant received
any medications to treat her mental and emotional state. Based on all
these considerations, we find that $5,000.00 is a proper award for any
anguish which appellant has suffered.
CONCLUSION
Based on a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision that appellant failed to establish
that she was entitled to compensatory damages beyond the $5,000.00
agency award.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
_March 30, 2000_ _________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
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 Equal Employment Assistant
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.