01a05979
01-09-2001
Clarissa K. Yonker, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Clarissa K. Yonker v. Department of Transportation
01A05979
January 9, 2001
.
Clarissa K. Yonker,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A05979
Agency No. DOT-1-93-0046
DECISION
The complainant timely filed an appeal with this Commission from a
final agency decision dated August 2, 2000 concerning her complaint
of unlawful employment 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 under 29 C.F.R. � 1614.405.<1>
ISSUE PRESENTED
Whether the agency properly determined that the complainant was not
entitled to compensatory damages and reimbursement of leave.
BACKGROUND
The complainant brought an EEO claim that she was sexually harassed by
her upper level supervisor (manager) from November 1989 to June 1990.
The complainant contended that the manager gave her unwanted attention,
frequently pressured her with inappropriate methods to eat lunch alone
with him despite consistent refusals, repeatedly stood near her and
touched her with his arm or hand despite her consistently moving away,
and created a sexually charged hostile atmosphere by his conduct with
other women in office. The agency dismissed the sexual harassment claim
for untimeliness, and the Commission affirmed.<2>
The complainant also claimed that she was retaliated against by the
manager. In the above decision the Commission ordered the agency to
investigate the reprisal claim, and to the extent relevant accept the
sexual harassment claim as background.
Subsequently, the Commission found that the manager retaliatorily harassed
the complainant for making a statement that she was sexually harassed
by him to an investigator of an EEO claim of another employee.<3>
The decision found that the harassment occurred for two to three
weeks in June 1992 and in later 1992 on four or five separate days.
It occurred when the manager was no longer the complainant's supervisor.
Specifically, the manager harassed the complainant in June 1992 by
repeatedly entering her work area, walking back and forth in front of her
desk, using a telephone near her work station and staring at her without
uttering a word. At this time the manager was a special assistant to a
superior of the complainant. The complainant stated that in June 1992
after two weeks the manager stopped entering her office because he was
told not to by management. The Commission found that on the subsequent
occasions the manager engaged in similar misconduct. By this time he
had been reassigned to a different facility, but returned periodically
for meetings. The manager did not utter a word to the complainant in
person during the above periods.
In EEOC Appeal No. 01964675, the Commission ordered the agency in part to
do a supplemental investigation to determine the amount of compensatory
damages sustained by the complainant, and issue a final decision on
the matter. The agency completed these actions. It found that the
complainant failed to show a causal connection between the reprisal and
her injuries, and hence awarded no compensatory damages and reimbursed
no leave.
ANALYSIS AND FINDINGS
Compensatory damages may be awarded for past pecuniary losses, future
pecuniary losses, and nonpecuniary losses that are directly or proximately
caused by the agency's discriminatory conduct. Compensatory and Punitive
Damages Available Under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 (July 14, 1992).<4> Pecuniary losses are
out-of-pocket expenses incurred as a result of the employer's unlawful
action, including medical and other quantifiable out-of-pocket expenses.
Past pecuniary losses are pecuniary losses incurred prior to the date of
the resolution of the damage claim. Future pecuniary losses are losses
that are likely to occur after the resolution of litigation. Nonpecuniary
losses are losses that are not subject to precise quantification including
emotional pain and loss of health. Id.
Nonpecuniary Damages
The complainant wrote as early as August 1992 that the manager's
retaliation caused her great distress, and she was so upset that
at one point she cried. This statement was recently corroborated
by a former co-worker, who indicated that twice in June 1992 he
witnessed the complainant shaking and crying after encounters with
the manager. According to the complainant, the reprisals caused
a lack of concentration at work, made her uncomfortable there, and
were intimidating. Recently, the complainant asserted that since the
reprisals she is fearful to be home alone, albeit she has stated that
the manager did not harass her outside the office.
As early as August 1992, the complainant indicated that as a result
of the situation with the manager, including fear of pursuing her EEO
claims against him and the agency's insufficient steps to stop him,
she was seeing a mental health counselor, had trouble sleeping, had a
skin outbreak on her arms and, especially when the manager was at her
facility in June 1992, migraine headaches.
The complainant started seeing a psychotherapist in April 1991
because of emotional problems of going through a divorce. Soon, other
emotional issues were explored, including feelings of powerlessness and
depression stemming from the manager's prior alleged sexual harassment.
The psychotherapist stated that the petitioner became more depressed
because the manager worked at the complainant's facility in June 1992 and
intimidated her and made her anxious. The psychotherapist stated that
in 1994 the complainant had major depression caused by EEO litigation,
which made her feel helpless and caused difficulty sleeping, the deaths
of five family members, including her parents, and major surgery.
The psychotherapist referred the complainant to a psychiatrist for major
depression. The complainant continues to see the psychotherapist.
The complainant visited the psychiatrist over a nine month period
beginning in 1994. He stated that the complainant discussed her EEO case,
the deaths of several family members, and her major surgery, and that
all this stress caused stomach problems and skin outbreak, as well as
difficulty concentrating. According to the psychiatrist, by February 1995
the complainant was doing better with her depression and other physical
problems, was taken off Prozac, but still needed psychotherapy.
The complainant's attorney submitted a spreadsheet charting the
complainant's treatment. The spreadsheet indicates that the complainant
saw an internist in 1993 and chiropractor from 1997, and was medicated
with Zantac-Prilosec for stomach pain and other medication for migraine.
The complainant did not submit a statement regarding this, nor did she
submit statements from these health care practitioners. The spreadsheet
represents that the complainant saw a gastroenterologist in 1997.
The gastroenterologist stated that the complainant was treated for
gastroesophageal reflux disease and irritable bowel syndrome, both of
which can be worsened by anxiety and stress. Finally, the spreadsheet
indicates that from 1995 onward the complainant saw two dermatologists.
One of the dermatologists stated that the complainant had psoriasis,
a condition exacerbated during periods of stress.
The complainant informed the EEO counselor that the traumatic situation
the complainant endured was resurfaced by giving her statement to the
EEO investigator in June 1992. A co-worker recently stated that every
time there is a development in the complainant's EEO case, she gets
very nervous, has problems concentrating at work, and trouble sleeping.
The psychotherapist recently stated that although the complainant's
depression has decreased, she is still very anxious and feels depressed
because her complaint was not finalized.
There is no precise formula for determining the amount of damages for
nonpecuniary losses. An award of compensatory damages for such losses
should reflect the nature and severity of the harm and the duration or
expected duration of the harm. Further, a complainant must establish
a nexus between the harm and the discrimination found.
The agency found that there was no nexus between the complainant's
injuries and the reprisal discrimination. We disagree. Credible evidence
shows that in reaction to reprisals in June 1992 the complainant shook
and cried twice, got migraine headaches, was intimidated and anxious,
had a lack of concentration at work, and became more depressed. Further,
the preponderance of the evidence demonstrates that the reprisals were
a contributing factor to the complainant having skin outbreak, trouble
sleeping, and increased or continued depression.
The record also shows that other factors contributed to the emotional and
physical injuries discussed in this decision. These factors include the
ongoing effects of the claimed harassment prior to the reprisal claim,
pursuit of the complainant's EEO claim, the deaths of five family members,
and major surgery. Injury caused by the claimed harassment prior to
the reprisal is not compensable because this claim was dismissed. Also,
compensatory damages are not available for stress caused by participating
in the EEO process. Appleby v. Army, EEOC Appeal No. 01933897 (March
4, 1994).
The greater time distance from the reprisals, the less evidence there
is in the record that the complainant's injuries were caused by them.
The psychotherapist referred to the EEO litigation as playing an important
factor in the complainant's injuries from 1994 onward.
The Commission's policy is to make damage awards for emotional harm
consistent with awards in similar cases. In Palmer v. Department of
the Navy, EEOC Appeal No. 01956059 (September 2, 1998), the Commission
found the AJ's award of $5,000 to be reasonable based on evidence that
a discriminatory reassignment and other factors caused a moderately
severe exacerbation psychological injury. In Mares v. Department
of the Air Force, EEOC Appeal No. 01962897 (October 20, 1998), the
Commission awarded $7,000 based on the complainant's representation that
retaliatory derogatory statements made him more depressed, and letters
by his psychiatrist indicating that the derogatory statements caused
the complainant extreme stress necessitating increasing the frequency of
psychiatric visits and medications for stress, depression, and anxiety.
After reviewing the record as a whole, the Commission finds that the
complainant sustained $6,500 in nonpecuniary damages. In arriving
at this figure, we considered the duration and severity of the harm,
and that many of the complainant's injuries were only partially caused
by the reprisals. Further, the preponderance of the evidence does
not show that the reprisals were a contributing factor to some of the
complainant's injuries, such as gastroesophageal reflux disease and
irritable bowel syndrome.
Pecuniary Damages
The complainant submitted health care expenses incurred from April 1991
to January 1998. They were for treatments by the psychotherapist,
psychiatrist, internist, gastroenterologist, dermatologists, and
chiropractor. The complainant also submitted receipts for prescription
drugs purchased in 1996 and 1997.
The agency denied the health care expenses on the grounds that the
complainant did not demonstrate a nexus between her injuries and the
discrimination. This finding has already been rejected. A preponderance
of the evidence demonstrates that the reprisals were attributable
for one-third of the costs of visiting the psychotherapist from June
1992 through April 1994, after which the complainant was referred to
the psychiatrist. This amounts to $453 in past pecuniary damages.
The complainant has not shown by a preponderance of the evidence that
any other medical expenses she submitted were caused in whole or part
by the reprisals.
The agency cited Carpenter v. Department of Agriculture, EEOC Appeal
No. 01945652 (July 17, 1995) for the proposition that past pecuniary
losses must be offset by amounts paid by a complainant's insurance
company. This is not a proper statement of Commission policy.
A complainant is entitled, pursuant to the collateral source rule,
to the full amount of her pecuniary damages, even if some or all of
the expenses were paid by her health insurance. Wallis v. U.S. Postal
Service, EEOC Appeal No. 01950510 (November 13, 1995). Accordingly,
the agency may not use funds distributed by the health insurance to
offset an award of damages. Id. The total amount of past pecuniary
damages the complainant is entitled to are $453.
Leave
The complainant requested reimbursement of 97� hours of sick leave used to
visit health care providers from September 1992 to July 1999. The agency
denied restoring sick leave on the grounds that the complainant did not
demonstrate a nexus between her injuries and the discrimination. This
finding has been rejected. A preponderance of the evidence demonstrates
that the reprisals were attributable for one-third of the sick leave
used to visit the psychotherapist from June 1992 through April 1994.
This amounts to the restoration of nine hours of sick leave.
As the complainant is a prevailing party, she is entitled to attorney
fees, as ordered below.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to reverse the agency's finding that the
complainant is not entitled to any compensatory damages or restoration
of sick leave.
ORDER
(1) The agency must issue the complainant a check for $6,953 for
damages.<5>
(2) The agency must restore to the complainant nine hours of sick leave.
(3) The agency must complete the above actions within 60 calendar days
of the date this decision becomes final.
The complainant may petition for enforcement or clarification of this
order with the Compliance Officer, at the address referenced in the
below statement entitled "Implementation of the Commission's Decision."
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 must include documentation demonstrating that
the ordered actions have been implemented. The agency must provide
the complainant with a copy of this report along with any attached or
enclosed documentation.
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.
ATTORNEY'S FEES (H0900)
If complainant 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's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's 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.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 9, 2001
__________________
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. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.
2Yonker v. Department of Transportation, EEOC Request No. 05930730
(January 6, 1994). The Commission reasoned that the complainant did
not contact an EEO counselor about her sexual harassment claim until
July 1992, and there was no continuing violation of that claim.
3Yonker v. Department of Transportation, EEOC Appeal No. 01964675 (July
28, 1998).
4This guidance is on the Commission's website at www.eeoc.gov.
5This is the sum of $6,500 in nonpecuniary damages and $453 in past
pecuniary medical expenses.