Brenda Jacksonv.United States Postal Service 01971128 08-25-00 .Brenda Jackson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 25, 2000
01971128 (E.E.O.C. Aug. 25, 2000)

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.