01981955
10-03-2000
Chris Minardi, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Chris Minardi v. United States Postal Service
01981955
October 3, 2000
.
Chris Minardi,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast/Southwest Region),
Agency.
Appeal No. 01981955
Agency No. 3S-2470-92
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his claim for compensatory damages. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.<1> At issue is whether the agency
correctly determined the amount of relief owed to complainant.
In Minardi v. United States Postal Service, EEOC Appeal No. 01952790
(August 30, 1996), the Commission found that the agency discriminated
against complainant on the basis of his sex when he was not selected
for the position of General Supervisor at an agency facility in Fort
Lauderdale, Florida. We ordered the agency, inter alia, to: (1) pay
complainant costs incurred in connection with the investigation of his
complainant and his attendance at the hearing; (2) pay complainant a
mileage allowance for his commute from Fort Lauderdale to Miami from
the date of the selection until the date he elected to take disability
retirement; and (3) conduct a supplemental investigation as to other
compensatory damages complainant may have been entitled.
Subsequently, complainant requested $300,908.00 for mileage, driving
time, miscellaneous costs, processing time, lost future earnings, and
compensatory damages. He later revised that figure to $159,689.00.
On October 3, 1997, the agency offered complainant a "settlement" of
$21,500.00 to resolve all outstanding issues relating to compensatory
damages. Complainant rejected the offer on October 16, 1997. In its
November 13, 1997 final decision, the agency noted that it had reimbursed
complainant past pecuniary damages of $6,840.00 for mileage and awarded
complainant $3,000.00 in non-pecuniary damages for his insomnia,
headaches, difficulty in concentration, and irritability caused by the
agency's discriminatory act. The agency denied complainant's claim
for driving time, miscellaneous costs, processing time, and future
earnings loss. On appeal, complainant submitted three statements from
close friends stating that the agency's action had seriously affected his
emotional well being and a statement from his psychotherapist diagnosing
complainant with Major Depressive Disorder due in part to the agency's
discriminatory action and due in part to personal issues including his
parents' and his own health conditions. For the following reasons,
the Commission modifies the agency's final decision.
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 this agency, the limit of liability for non-pecuniary and future
pecuniary damages is $300,000.00. Id. In West v. Gibson, 527 U.S. 212
(1999), the Supreme Court held that the Commission has the authority to
award compensatory damages in the federal sector EEO process.
The particulars of what relief may be awarded, and what proof is
necessary to obtain that relief, are set forth in detail in EEOC's
Enforcement Guidance on Compensatory and Punitive Damages Available Under
Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (Guidance).
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. Department. 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. Guidance 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.
A. Pecuniary Damages
Pecuniary damages are available for out of pocket expenses shown to be
related to the discriminatory conduct. Typically these damages include
reimbursement for medical expenses, job hunting expenses, moving expenses
and other quantitative out of pocket expenses. The Commission requires
documentation in support of these expenses, typically in the form of
receipts, bills, or physician's statements.
Complainant has requested pecuniary damages for mileage, driving time and
lost future earnings.<2> We note that the agency reimbursed complainant
a total of $6,840.00 for mileage, denied compensation for driving
time because it was not a pecuniary expense, and denied compensation
for lost future earnings since the evidence of the nature, extent
and duration of such loss was insufficient to establish entitlement.
We affirm the agency's determination that $6,840.00 was sufficient to
compensate complainant for his mileage, and we agree with the agency's
determination that complainant cannot receive pecuniary damages for the
extra driving time associated with the commute to Miami. While we may
factor this inconvenience into a non-pecuniary damage award, the time
complainant spent driving to and from work is not a pecuniary expense.
We also agree with the agency that complainant's claim for lost future
earnings is not supported by the evidence. Damages for lost future
earning capacity are generally awarded in personal injury cases but
also have been awarded in employment discrimination cases. Carpenter
v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17,1995).
An award of damages for lost earning capacity comports with Title VII's
goal of providing make-whole relief to the victims of discrimination.
The Commission requires that the impairment of earning capacity be shown
with reasonable certainty or reasonable probability, and there must be
evidence which will permit the fact finder to arrive at a pecuniary value
for the loss. While we note that complainant elected to take disability
retirement in March 1994, the evidence does not establish that had
the agency not discriminated against him, he would have remained in its
employ. Moreover, complainant has not presented evidence that the agency's
discriminatory act caused a diminution in his ability to earn a living.
B. Non-Pecuniary Damages
Non-pecuniary damages are available to compensate the injured party for
actual harm, even where the harm is intangible. Carter v. Duncan-Higgins,
Ltd., 727 F.2d 1225 (D.C. Cir. 1984). Emotional harm will not be
presumed simply because the complainant is a victim of discrimination.
See Guidance at 5. The existence, nature, and severity of emotional
harm must be proved. Id. The method for computing non-pecuniary damages
should typically be based on a consideration of the severity and duration
of harm. Carpenter, EEOC Appeal No. 01945652; Guidance at 8. We note
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 Ward-Jenkins v. Department of
the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
Objective evidence of non-pecuniary damages may include a statement by the
complainant explaining how he or she was affected by the discrimination.
Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January
5, 1993). Statements from others, including family members, friends,
and health care providers may address the outward manifestations of the
impact of the discrimination on the complainant. Id. The complainant
may also submit documentation of medical or psychiatric treatment related
to the effects of the discrimination. Id. However, evidence from a
health care provider is not a mandatory prerequisite to establishing
entitlement to non pecuniary damages. Sinnott v. Department of Defense,
EEOC Appeal No. 01952872 (September 19, 1996).
The Commission applies the principle that �a tortfeasor takes its
victims as it finds them.� Wallis v. United States Postal Service,
EEOC Appeal No. 01950510 (November 13, 1995) (quoting Williamson
v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)).
The Commission also applies two exceptions to this general rule. First,
when a complainant has a pre-existing condition, the agency is liable
only for the additional harm or aggravation caused by the discrimination.
Second, if the complainant's pre-existing condition inevitably would
have worsened, even absent the discrimination, the agency is entitled
to a proportionate reduction in damages; the burden of proof being
on the agency to establish the extent of this entitlement. Wallis,
EEOC Appeal No. 01950510 (citing Maurer v. United States, 668 F.2d 98
(2d Cir. 1981)); Finlay v. United States Postal Service, EEOC Appeal
No. 01942985 (April 29, 1997). The Commission notes, however, that
complainant is entitled to recover damages only for injury, or additional
injury, caused by the discrimination. Terrell v. Department. of Housing
and Urban Development, EEOC Appeal No. 01961030 (October 25, 1996),
aff'd, EEOC Request No. 05970336 (November 20, 1997).
Complainant has requested non-pecuniary damages for emotional harm in the
nature of headaches, insomnia, difficulty in concentration, irritability,
depression, panic, anxiety attacks, despondency, loss of self esteem,
tension, loss of character and reputation, loss of enjoyment of life,
stress and inconvenience. Although the record lacks evidence concerning
the duration of complainant's distress, the statements from complainant's
friends represent that the agency's action altered his behavior in so
far as his judgment, patience and self control was compromised and that
he suffered from extreme stress and loss of self esteem as a result
of the discriminatory non-selection. The statement from complainant's
physician acknowledges that his depression had more than one cause but
stated that his feeling of "victimization" by the agency is a "great part
of the manifestation of his depression." We note that the Commission
has awarded compensatory damages in cases where the agency's conduct was
one of several causes of emotional harm. See Economou v. Department of
the Army, EEOC Appeal No. 01983435 (August 5, 1999) ($35,000 awarded
for period of retaliation which contributed in part to complainant's
depression and anxiety); Terrell, EEOC Appeal No. 01961030 ($25,000.00
award for emotional distress mitigated by evidence that complainant had
a number of personal problems that contributed to his distress).
After analyzing the evidence which establishes the emotional injury,
sustained by complainant as a result of the agency's discriminatory action
and mitigated by the effects of other personal problems he experienced,
and upon consideration of damage awards reached in comparable cases, the
Commission finds that complainant is entitled to an award of non-pecuniary
damages in the amount of $20,000.00. This amount takes into account the
severity and the likely duration of the harm done to complainant by the
agency's action. 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.
Costs
Complainant has requested reimbursement for time spent processing his
complaint. Specifically he assigned himself a "lawyer rate." However,
attorney's fees are only allowable for the services of members of the
Bar and law clerks, paralegals or law students under the supervision
of members of the Bar. 29 C.F.R. � 1614.501(e)(1)(iii). Complainant
cannot collect fees for the value of his own time spent processing the
complaint.
Reasonable costs incurred by the prevailing complainant in the course
of litigating his own EEO claim are compensable. Hafiz v. Department of
Defense, EEOC Petition No. 04960021 (July 11, 1997). These may include
such items as mileage, postage, telephone calls, photocopying, and any
other reasonable expenses incurred in connection with the complaint.
Carver v. United States Postal Service, EEOC Petition No. 04950004
(June 19, 1996). It is complainant's burden to prove that he incurred
such costs, by providing documentation to support a claim for costs,
such as bills for copying, telephone bills, or receipts for mailings.
Hafiz, EEOC Petition No. 04960021. The record contains no documentation
to support complainant's claim for "postage, copies etc." Accordingly,
we deny complainant's claim for costs.
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
modifies the agency's final decision and orders the agency pay
complainant compensatory damages in accordance with this decision and
the ORDER below.
ORDER
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall pay complainant $20,000.00 in non-pecuniary
damages.
2. 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 foregoing corrective actions have been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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
(R0900)
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
October 3, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 We address complainant's request for reimbursement for miscellaneous
costs and processing time in the section entitled Costs, infra.