01971128
08-25-2000
Brenda Jackson v. United States Postal Service 01971128 08-25-00 .Brenda Jackson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Brenda Jackson v. United States Postal Service
01971128
08-25-00
.Brenda Jackson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01971128
Agency No. 3-E-1055-91
DECISION
On October 31, 1996, the Equal Employment Opportunity Commission
(Commission) received an appeal from Brenda Jackson (hereinafter referred
to as the complainant) from a final decision of the agency concerning
her claim for compensatory damages following the Commission's finding
that she was subjected to sexual and retaliatory harassment 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 dated October 4, 1996.
Accordingly, the appeal is timely, and is accepted by this Commission
in accordance with 64 Fed.Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly denied the
complainant's claim for compensatory damages.
BACKGROUND
The complainant filed a formal EEO complaint in September 1991, alleging
that she was subjected to sexual harassment and reprisal. Specifically,
the complainant stated that she was sexually harassed by a co-worker
beginning in 1986, in the form of asking her for dates and making
sexually suggestive comments. The complainant further noted that, after
the co-worker became her supervisor in 1990, he continued to retaliate
against her for reporting the sexual harassment. In Jackson v. USPS,
EEOC Request No. 05940797 (April 10, 1996), the Commission found that
the complainant had been subjected to sexual harassment and retaliation
by the named Supervisor. As relief, the agency was ordered, inter alia,
to conduct a supplemental investigation to determine what incidents of
harassment occurred after November 21, 1991, and whether the complainant
was entitled to compensatory damages based upon those actions.
During the supplemental investigation, the complainant advised the agency
that she was seeking $300,000.00 in nonpecuniary damages, as well as
$1,790 for therapy and doctor's visits, and $210.00 for medication.
The complainant also noted that she sustained a loss of income in
the amount of $43,465, in addition to $1,500.00 for loss of her craft
business, and $44,637.00 in future pecuniary damages for loss of earning
capacity.<2>
The agency issued a final decision dated October 4, 1996, denying the
complainant's claim for compensatory damages. The agency indicated
that the complainant presented no evidence to show a causal connection
between the alleged discrimination and her injury. The agency stated
that documentation from the complainant's therapist showed that she was
experiencing severe depression and various other symptoms in August 1991.
The agency also determined that the complainant failed to show a causal
relationship between the incidents which occurred after November 1991
and the exacerbation of her condition.<3>
The record includes an affidavit from the complainant in which she averred
that she had not experienced emotional problems prior to 1991, and had
received �excellent� or �superior� performance ratings. The complainant
noted, however, that after being reassigned to work under the Supervisor
in November 1991, she was subjected to continuing harassment through 1992.
The complainant stated that the Supervisor subjected her to excessive
scrutiny; refused to assign her work within her position description;
had a co-worker type and give her assignments; had the telephone
removed from her cubicle and screened her calls; denied her access to
the computer system, and changed her identification badge to deny her
access to work areas. In December 1991, the complainant stated that
the Supervisor attempted to force her to accept a custodial position
and threatened to have her escorted from the building. In 1992, the
complainant stated that the Supervisor berated her for wearing headphones
and accused her of attempting to record conversations; refused her
request to change tours; told other employees not to associate with her;
and referred her for a fitness for duty examination. The complainant
indicated that she also received lower performance appraisal ratings.
The complainant indicated that the harassment continued under a different
supervisor until she accepted disability retirement in September 1993.
Specifically, the complainant noted that she was denied training and
scheduled for a second fitness for duty examination.
The complainant stated that, after November 20, 1991, she was isolated
from her co-workers, and felt unsafe, nervous, humiliated, and tense.
The complainant noted that she cried every day. The complainant
acknowledged that she sought treatment in May 1991 in order to deal with
job stress. The complainant stated that she experienced mental anguish,
sleeplessness, anxiety, and a loss of self esteem. The complainant
indicated that she stopped interacting with family and friends; stopped
participating in hobbies, community activities and church; stopped
cleaning her house; and did not answer the telephone. She also cited
periods during which she was unable to concentrate, as well as reduced
physical activity and weight gain. The complainant noted that, by the
time she retired in September 1993, she was no longer able to function
at work or at home. She stated that she continues to take a number of
medications for depression and stress, experiences excessive fatigue,
and is unable to function on some days.
The complainant filed a workers' compensation claim in October 1991,
stating that she had experienced anxiety and depression since May 1991.
She cited a number of allegedly related problems, including eczema,
severe mental stress, and stomach problems, and noted that she had sought
psychiatric help.
The complainant began seeing a therapist in August 1991 for job related
stress. In a report dated July 17, 1996, the therapist noted that when
she began seeing the complainant she was extremely depressed, and had
lost interest in her usual activities. The therapist further stated
that the complainant was experiencing insomnia and severe mood swings,
having problems concentrating. Nevertheless, the therapist noted that
her initial assessment was that appellant was a well dressed, high
functioning individual who was responding to a stressful work situation.
The therapist stated that, over the years, the complainant's appearance
declined, and she experienced debilitating depression, weight gain,
paranoia, loneliness, hopelessness, and an inability to function beyond
simple maintenance. The therapist opined that the complainant's declining
health was directly related to her treatment at work, including events
occurring after November 1991. The therapist stated that after her
EEO complaint was initially denied in 1993, she became more upset and
depressed.<4>
The complainant was diagnosed with anxiety disorder and depression prior
to November 1991, and was treated with medication. The complainant
continued to receive treatment after that time. One physician noted that
while the complainant was somewhat more depressed in November 1992, her
ability to perform work related functions had been severely compromised
by July 1993. The complainant underwent psychological tests in January
1992 and August 1993. The former tests revealed an obsessive compulsive
personality disorder and a dependent personality disorder which had
likely persisted for several years, as well as a pervasive difficulty
with interpersonal relationships. The latter test, while being found to
produce questionable results, also revealed long term, chronic avoidant
personality disorder. One physician indicated, in October 1993, that
while the complainant related her condition to harassment at work, it
was increasingly evident that her mental state was influenced by other
factors.
The complainant submitted statements from numerous family members,
friends, and co-workers describing her condition. Several co-workers
witnessed the Supervisor's harassment, which one individual opined
to be the cause of the complainant's deteriorating mental health.
The complainant's friends and family noted that while she had previously
been an independent and strong person, she had since become a loner who
no longer smiles or trusts others. The complainant was described as
depressed and withdrawn, and it was noted that she stopped interacting
with friends and family, and gained weight. These symptoms were
attributed, at least in part, to incidents subsequent to November 1991.
The record includes bills and statements for therapy and pharmacological
management from November 1991 through April 1995. In addition, the
complainant spent $155.00 for medication. The record also includes
two statements showing that the complainant received treatment at the
Southeast Health Service for an unspecified condition.
ANALYSIS AND FINDINGS
To receive an award of compensatory damages, a complainant must
demonstrate that she has been harmed as a result of the agency's
discriminatory action; the extent, nature and severity of the harm;
and the duration or expected duration of the harm. Rivera v. Department
of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for
reconsideration denied, EEOC Request No. 05940927 (December 11, 1995);
Compensatory and Punitive Damages Available Under Section 102 of the
Civil Rights Act of 1991, EEOC Notice No. N 915.002 at 11-12, 14 (July
14, 1992).
In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993), the Commission described the type of objective evidence that an
agency may obtain when assessing the merits of a complainant's request
for emotional distress damages:
[E]vidence should have taken the form of a statement by the complainant
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
the complainant day to day, both on and off the job. In addition, the
agency should have asked the complainant to provide objective and other
evidence linking ... the distress to the unlawful discrimination....
Objective evidence may include statements from the complainant concerning
his/her 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.
Objective evidence also may include documents indicating a complainant's
actual out-of-pocket expenses related to medical treatment, counseling,
and so forth, related to the injury allegedly caused by discrimination.
In determining damages, the agency is only responsible for those damages
that are clearly shown to be caused by the alleged discriminatory conduct,
not for any and all damages in general.
Nonpecuniary Damages
An award of compensatory damages for non-pecuniary 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. 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). Courts also 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/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. USPS,
EEOC Appeal No. 01952288 (April 18, 1996).
In the case at hand, the Commission finds that the record supports the
complainant's claim for non-pecuniary compensatory damages resulting
from the matters which occurred subsequent to November 21, 1991.
The complainant's statement, in addition to those of her friends, family
members, and co-workers, describe, in sufficient detail, the effects of
the actions in question on complainant's demeanor and mood. Further,
the statements of the complainant's therapist show that the complainant's
condition was exacerbated, at least in part, by the actions subsequent
to November 1991. Thus, the complainant is entitled to an award of
nonpecuniary damages for her emotional distress.
The Commission notes that damage awards for emotional harm are difficult
to determine and that there are no definitive rules governing the amount
to be awarded in given cases. A proper award must meet two goals: that it
not be "monstrously excessive" standing alone, and that it be consistent
with awards made in similar cases. See Cygnar v. City of Chicago, 865
F.2d 827, 848 (7th Cir. 1989). Further, Federal courts have awarded
compensatory damages in a wide range of amounts depending on the facts
of the particular case, and the supporting evidence presented. See,
e.g., Hall v. Gus Construction Co., Inc., 842 F.2d 1010 (8th Cir. 1988)
(awards of $15,000.00 and $20,000.00 to two employees who were subject
to a campaign of verbal and/or physical harassment). In addition,
the Commission has awarded compensatory damages based on the extent of
the damages proved. See Smith v. Department of Defense, EEOC Appeal
No. 01943844 (May 9, 1996) ($25,000.00 award for complainant where
sexual harassment aggravated her acute depression so that she was unable
to work); Sinnot v. Department of Defense, EEOC Appeal No. 01952872
(September 19, 1996) ($20,000.00 award for 14 months of sexual harassment
which resulted in emotional and physical trauma, and marital disharmony).
Based on the foregoing, and considering the nature and severity of the
harm to the complainant, the actual duration of the harm, and limiting
the award to the harm caused by those actions occurring after November 21,
1991, we find that the complainant is entitled to an award of nonpecuniary
damages in the amount of $25,000.00 for emotional distress experienced
in connection with the harassment. In so finding, the Commission notes
that the complainant began receiving treatment and taking medication
for severe depression and anxiety prior to November 1991. Further,
the record contains some medical evidence which indicates that the
complainant's condition resulted from other factors not related to the
discrimination. In addition, the evidence shows that the complainant's
condition deteriorated subsequent to that time in part because to the
stress from pursuing her EEO complaint. See Appleby v. Department of the
Army, EEOC Appeal No. 01933897 (March 4, 1994) (complainant not entitled
to compensatory damages caused by the stress of participating in the EEO
process). Nevertheless, the complainant indicated that the actions which
occurred after November 1991 caused her embarrassment and humiliation,
as well as isolated her from her co-workers. The complainant further
stated that she experienced sleeplessness, anxiety, and desperation,
and ultimately became unable to function. As stated, the complainant's
therapist confirmed that her condition was exacerbated in part by the
harassment experienced subsequent to November 1991.
Pecuniary Damages
In the case at hand, the record includes invoices for therapy and
treatment which total $3,335.00. Although a portion of this amount
represents payment by the complainant's insurance carrier, the Commission
has previously held that, under the collateral source rule, payments made
by a health insurer for treatment on a complainant's behalf cannot be
used to reduce a compensatory damages award. Wallis v. USPS, EEOC Appeal
No. 01950510 (November 13, 1995). Thus, the complainant is entitled
to reimbursement for the entire amount of her past medical expenses.
Although the complainant indicated that she expended $210.00 for
medication, the receipts contained in the record total only $155.00.
The complainant also asserted that she was entitled to compensation for
loss of income, as well as future pecuniary damages; the Commission,
however, finds no evidence to support such awards.
Finally, the Commission notes that the complainant indicated that she
incurred $5,227.50 in attorney's fees in the processing of the claim for
compensatory damages. The complainant's attorney submitted an itemized
statement showing that she expended 34.85 hours from April 18, 1996,
through June 17, 1996, at an hourly rate of $150.00. We find that the
complainant is entitled to an award of attorney's fees in the amount
claimed, which we determine to be reasonable.
CONCLUSION
Based upon a review of the record herein, it is the decision of the
Commission to REVERSE the agency's decision with regard to the issue
of compensatory damages. The Commission finds that the complainant is
entitled to compensatory damages in the amount of $28,490.00, as well as
$5,227.50 in attorney's fees incurred in the processing of this appeal.
ORDER
1. The agency is ORDERED to pay the complainant compensatory damages in
the amount of $28,490.00 within thirty (30) calendar days of the date
this decision becomes final.
2. The agency shall pay $5,227.50 in reasonable attorney's fees incurred
in the processing of this appeal, pursuant to 29 C.F.R. �1614.501(e).
A copy of the agency's letter to the complainant forwarding payment of
the determined compensatory damages and attorney's fees must be sent to
the Compliance Officer, as referenced below.
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
(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:
__________________________________
Carlton M. Hadden, Director
Office of Federal Operations
__08-25-00________________________________
Date
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 claimant, claimant'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.
2While the complainant also stated that she was entitled to reimbursement
for sick leave, claims for compensation for leave taken due to emotional
distress are claims for equitable relief, not compensatory damages.
McGowan-Butler v. Department of the Treasury, EEOC Request No. 05940636
(September 9, 1994). Although the Commission's decision in Jackson
v. USPS, EEOC Request No. 05940797 (April 10, 1996) provided for
complainant to be reimbursed for leave used as a result of the harassment,
that matter was not remanded to the agency as part of the supplemental
investigation regarding compensatory damages which is the issue now
before us.
3The Commission notes that the agency subsequently offered the complainant
$10,000.00 after further review of the record showed that her symptoms
could have been exacerbated by incidents subsequent to November 1991.
The complainant, however, rejected the agency's offer.
4An Administrative Judge initially found that appellant was not subjected
to discriminatory harassment.