0120110397
07-08-2014
Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120110397
Hearing No. 310-2004-00304X
Agency No. 22R7STFRKMC0101R
DECISION
On September 11, 2010, Complainant filed an appeal from the Agency's July 23, 2010, final decision concerning her request for compensatory damages as a result of the Commission finding that the Agency violated Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission modifies the Agency's final decision.
ISSUE PRESENTED
Whether the Agency's determination that Complainant was only entitled to $0 in compensatory damages was correct.
BACKGROUND
On May 21, 2002, Complainant filed an EEO complaint alleging that she was discriminated against on the bases of race, color, national origin, disability, and in reprisal for engaging in prior protected EEO activity when she was denied a reassignment as a reasonable accommodation in approximately May 1999 and March 2000.
An EEOC Administrative Judge (AJ) issued a decision, on May 29, 2008, finding that Complainant failed to establish that she was discriminated against as alleged and failed to show that the Agency failed to accommodate her. However, with regard to Complainant's allegation that the Agency improperly disclosed her medical condition, the AJ found that this disclosure by her second level supervisor constituted a per se violation of the Rehabilitation Act. The AJ, however, did not award any relief for the violation. The Agency subsequently issued its final action on July 16, 2008, fully implementing the AJ's decision.
Complainant appealed the Agency's decision to the Commission. In EEOC Appeal No. 0120083575 (Dec. 10, 2009), the Commission affirmed the Agency's adoption of the AJ's decision. However, the Commission noted that the Agency, in adopting the AJ's decision in toto, also adopted the AJ's finding that the Agency violated the Rehabilitation Act, when it disclosed Complainant's medical condition. As such, the Commission modified the Agency's decision and ordered the Agency to provide training to those responsible management officials and to provide Complainant the opportunity to submit objective evidence in support of her claim for compensatory damages.
The Agency provided Complainant with the opportunity to submit evidence to support her claim for compensatory damages. Complainant submitted an email and an affidavit detailing the effects of the Agency's actions. In a decision dated July 23, 2010, the Agency found that Complainant failed to demonstrate that she was entitled to any compensatory damages. Specifically, with regard to pecuniary damages the Agency found that Complainant failed to submit any documentation to support an entitlement to out-of pocket expenses. With regard to non-pecuniary damages, the Agency found that because Complainant failed to provide any objective evidence, she was not entitled to damages. Complainant appealed the FAD to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she demonstrated that she was entitled to $75,000 in non-pecuniary damages because her own testimony was sufficient, and that she did not need medical evidence to support the requested amount. In response, the Agency argues that Complainant failed to provide any corroborating evidence along with her own testimony that would substantiate the harm she maintained that she suffered. The Agency requests that the Commission affirm its FAD.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at I1.A.2 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than punish the Agency for the discriminatory action. Further, compensatory damages should not "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999) (citing Cyngar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from a complainant concerning 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. Id.
Statements from others including family members, friends, health care providers, other counselors (including clergy) 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. Id. A complainant's own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Id. The 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. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id.
Initially, Complianant provided an email to the Agency dated May 6, 2010, requesting $75,000 in nonpecunairy damages. In support of her request, Complainant stated that:
All of the symptoms of my pre-existing conditions increased in intensity. I am no longer able to hide my disabling condition to the same degree before my diagnosis was publicly released. I isolated myself from my family and friends. I became agoraphobic because I am ashamed to be in public. My mental health deteriorated drastically. My emotional harm manifest itself as a drastic increase in sleeplessness, anxiety, stress, major depression, humiliation, emotional distress, shame, loss of my self esteem and weight fluctuation. I experience and continue to suffer an increase in intensity and frequency major depressive, panic episodes and migraine headaches. I rarely leave my home for fear of running into someone that may know my diagnosis. I do my best to stay hidden from the public and avoid people and places. I have suffered [in] my ability to enjoy life. My character and reputation has been ruined and suffers.
In a letter dated June 3, 2010, the Agency informed Complainant that her email request did not contain sufficient objective evidence to support her request for nonpecuniary damages. In response, Complainant provided an affidavit dated June 8, 2010, stating in relevant part:
2. . . . I suffered emotional harm primarily consisting of: a drastic increase in insomnia, anxiety, stress, major depression, emotional distress, shame, loss of my self esteem, and radical weight [fluctuations].
3. I was at least able to hide my mental conditions before my diagnosis was publicly released. After my diagnosis was released, I suffered nausea and pain in my stomach for several weeks. My head hurt me constantly. I was too depressed and ashamed to leave my home unless it was for something that was absolutely necessary such as to buy food or other necessities. I tried to hide when I was in public for fear of running into someone that saw the email. The subject e-mail was even forwarded outside of the agency.
4. I tried to avoid contact with my coworkers as much as possible to avoid humiliation, embarrassment due to their lack of understanding of my condition and to avoid their actions and comments. For example: my coworkers began to speak slowly and loudly to me when talking to me as if I did not understand or could not hear what they were saying. They would make humiliating and embarrassing jokes and remarks about my mental condition as if it was okay for them to do so since it was not publicly known. I was often given the cold-shoulder by some of my coworkers as if they feared being affected by my condition. Reporting these incidents fell on deaf ears when I reported it to my supervisor.
5. I experienced an increase in my pre-existing conditions increased in intensity especially with sleep and depressive episodes. For several weeks I slept less and experienced an increase in feelings of depression especially at work. It became increasingly difficult for me to report to work each day. I was often late because I was too embarrassed to enter the building.
In determining the amount of the award, we are guided by the principle that a compensatory damages award is limited to the amounts necessary to compensate Complainant for the actual harm caused by the agency's discriminatory action, and attempt to affix a reasonable dollar value to compensate an employee for that portion of emotional distress and related symptoms that were caused by the Agency's discrimination. See Webb v. U.S. Postal Serv., EEOC Appeal No. 0120070230 (Dec. 17, 2009) (citing EEOC Notice No. 915.002 (July 14, 1992) at 13).
Taking into account the evidence of non-pecuniary damages submitted by Complainant, we find the Agency's award of non-pecuniary, compensatory damages in the amount of $0 to be inadequate. Based on the above, we find that an award of $3,000 is warranted in this case. Our award takes into account the severity of the harm suffered, and is consistent with prior Commission precedent. See, e.g., Patterson v. Dep't of Air Force, EEOC Appeal No. 07A20128 (Dec. 22, 2003) ($3,000.00 adequately compensated complainant for the emotional distress caused by disclosing medical information); See Brunnel v. U.S. Postal Serv., EEOC Decision No. 07A10009 (July 5, 2001)($2,000 for embarrassment, anger and stress due to violation of medical confidentiality).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's award of nonpecuniary damages. The Agency will comply with the Order below.
ORDER
Within 120 days of the date this decision becomes final, the Agency shall pay Complainant $3,000.00 in non-pecuniary compensatory damages.
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 corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
___7/8/14_______________
Date
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0120110397
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110397