Crystal N. R. Grice, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionFeb 28, 2000
01976646 (E.E.O.C. Feb. 28, 2000)

01976646

02-28-2000

Crystal N. R. Grice, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Crystal N. R. Grice v. Department of Agriculture

01976646

February 28, 2000

Crystal N. R. Grice, )

Complainant, )

) Appeal No. 01976646

v. ) Agency No. 930519

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning an award of compensatory damages, issued in accordance

with a prior final agency decision finding that the agency violated Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et

seq., when it discriminated against complainant on the bases of her race

(Black) and reprisal (prior EEO activity).<1> The appeal is accepted

in accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

at 29 C.F.R. � 1614.405). For the following reasons, the Commission

modifies the agency's final decision.

ISSUE PRESENTED

The issue on appeal is whether complainant established that she is

entitled to compensatory damages beyond the amount of $10,405 awarded

by the agency.

BACKGROUND

The record reveals that complainant, a Transportation Assistant at

the agency's Philadelphia, Pennsylvania facility, filed a formal EEO

complaint with the agency on April 9, 1993, alleging that the agency

had discriminated against her on the bases of her race, age (57 at

time of complaint) and reprisal. Although the complaint raised issues

of nonpromotion and awards, along with a claim of discriminatory leave

restriction, the agency concluded, after investigation, that complainant

only established that she was discriminated against on the bases of

race and reprisal when she was placed on leave restriction for one year,

beginning February 18, 1993. The agency issued a FAD on October 31, 1995,

dismissing all but the leave restriction issue, finding discrimination on

the leave restriction issue, and asking that complainant submit evidence

of compensatory damages. Complainant did not appeal.

Subsequently, after allowing complainant's attorney time to submit

evidence relating to compensatory damages, the agency issued a

second FAD awarding complainant $10,405 in compensatory damages.

The agency noted that complainant had submitted no documentation of

past out-of-pocket expenses, and only one bill in the amount of $525

for medical consultations as documentation of future pecuniary damages,

which it agreed to pay.<2> In terms of non-pecuniary damages, the

agency noted that complainant submitted only two summary medical reports

describing her depression. Based on these reports, the agency concluded

that only part of complainant's emotional distress was caused by the

proven discriminatory conduct. Finding that a person subjected to the

"deliberate scrutiny of a supervisor motived by discriminatory animus,

such as complainant, would experience depression and stress," the agency

determined that complainant should receive some compensation.

In making its determination, the agency reviewed damage awards in prior

Commission decisions, breaking down certain awards into a per day payment.

It concluded that $10 per day was a reasonable amount in this case

and that the discrimination occurred over a 988-day period, between

February 18, 1993, when complainant was placed on leave restriction,

and October 31, 1995, when the agency determined that complainant had

been discriminated against. The award for non-pecuniary damages was

thus $9,880, which taken together with the $535 pecuniary damage award,

resulted in a total of $10,405 in compensatory damages.

CONTENTIONS ON APPEAL

On appeal, complainant contends that she was subjected to discrimination

for 16 years while at the agency and that the amount awarded in

compensatory damages clearly does not adequately compensate her. She

notes that the FAD acknowledged that she was subjected to discriminatory

animus for a relatively long period of time and that, in comparison to

awards in similar cases, $10,405 is not fair and adequate compensation.

The agency submits no response, but asks merely that its FAD be affirmed.

ANALYSIS AND FINDINGS

Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant

who establishes 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 the agency,

the limit of liability for future pecuniary and non-pecuniary damages

is $300,000. Id. The Supreme Court has recently confirmed that the

Commission possesses the legal authority to require federal agencies to

pay compensatory damages. See West v. Gibson, 119 S.Ct. 1906 (1999).

The particulars of what relief may be awarded, and the proof necessary to

obtain that relief, are set forth in detail in EEOC Notice No. N-915.002,

Compensatory and Punitive Damages Available Under Section 102 of the Civil

Rights Act of 1991 (July 14, 1992). 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.

See Damiano v. United States Postal Service, EEOC Request No. 05980311

(February 26, 1999). The amount awarded should reflect the extent

to which the agency's discriminatory action directly or proximately

caused harm to complainant and the extent to which other factors may

have played a part. EEOC Notice No. N-915.002, at 11-12. The amount of

non-pecuniary damages should also reflect the nature and severity of the

harm to complainant, and the duration or expected duration of the harm.

Id. at 14. A complainant is required to provide objective evidence

that will allow an agency to assess the merits of complainant's request

for emotional distress damages. See Carle v. Department of the Navy,

EEOC Appeal No. 01922369 (January 5, 1993).

Evidence of Injury and Causation

Two doctors submitted reports summarizing complainant's emotional

distress and noting that she was suffering from severe depression.

These summaries note that complainant's depression was partially caused

by discrimination she suffered at work.

We find that based on the medical summaries provided and the fact that

the agency acknowledged a causal connection between the discriminatory

treatment complainant endured and some portion of the distress she

suffered, complainant has established that a portion of her harm was

caused by discrimination.

Calculation of Damages

1. Past and Future Pecuniary Damages

Complainant has submitted only one receipt showing out-of-pocket expenses;

a bill for three consultations with a psychiatrist that occurred in

February, March, and April of 1996. These visits were made for the

purpose of supporting complainant's compensatory damages claim. The

agency considered these costs as a future out-of-pocket expense because

they were incurred after the issuance of the FAD finding discrimination.

Because these costs were incurred in an effort to support a compensatory

damages claim, we agree with the agency that they were proximately

caused by the agency's discriminatory actions and affirm the agency's

award of $525 for out-of-pocket expenses. Complainant neither claimed

nor submitted documentation in regard to any other out-of-pocket expenses.

2. Non-pecuniary Damages

There are no definitive rules governing the amount of non-pecuniary

damages to be awarded. Non-pecuniary damages must be limited, however,

to the sums necessary to compensate the injured party for actual harm,

even where the harm is intangible. The existence, nature, and severity of

emotional harm must be proved. See EEOC Notice N-915.002 at 11. Emotional

harm may manifest itself, for example, as sleeplessness, anxiety,

stress, depression, marital strain, humiliation, emotional distress,

loss of self-esteem, excessive fatigue, or a nervous breakdown. Id.

A proper award should take into account the severity of the harm and the

length of time that the injured party suffered the harm. See Carpenter

v. Department of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).

Finally, 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

Jackson v. United States Postal Service, EEOC Appeal No. 01972555

(April 15, 1999), citing Cyanar v. City of Chicago, 865 F. 2d 827, 848

(7th Cir. 1989).

In the case at hand, two medical reports concerning complainant's

emotional state were submitted.

These reports, one from a psychologist and one from a psychiatrist,

indicate that complainant was severely depressed, had trouble focusing,

displayed a markedly diminished interest in her usual activities, suffered

from disturbed appetite and sleep patterns, was sad and fatigued most of

the time and expressed a great deal of hopelessness and helplessness. The

medical summaries indicated that workplace discrimination and trauma were

partially responsible for complainant's depression, but also noted that

physical pain from a workplace injury, the denial of a worker compensation

claim, and problems caused by her primary physician and health insurance

company contributed to her emotional state. Both summaries reported that

complainant was taking anti-depressants and that she was not capable

of working (as of Spring 1996). Complainant's psychiatrist specified

that complainant was unable to work not only because of significant

depression from workplace abuse, but also due to possible significant

neuropathy and traumatic arthritis resulting from her workplace injury.

Complainant submitted no other evidence to establish the extent to which

discrimination caused her depression, e.g., no affidavits, either from

herself or from friends, family and co-workers, were submitted.

The medical reports, though short, clearly establish that complainant

has suffered severe emotional harm. They also indicate, however, that

there are several causes of this harm. Moreover, though they refer

to workplace abuse endured by complainant, they define this abuse as

occurring since around 1984. While complainant claimed to have suffered

discriminatory treatment since 1984, the agency found that she had only

been discriminated against when she was placed on leave restriction for

one year on February 18, 1993. Complainant did not appeal this decision.

A complainant can only receive compensatory damages that stem from proven

discriminatory actions. See Rountree v. Department of Agriculture,

EEOC Appeal No. 01941906 (July 7, 1995) (amount of compensatory damage

affected by fact that a majority of complainant's emotional problems

were caused by factors other than discrimination.)

The agency arrived at its non-pecuniary damage award by looking to

two prior Commission decisions it believed to be similar, dividing

the amounts therein awarded by the number of days the harm caused by

the discrimination continued, and using those "per day" figures to

calculate a per day award in complainant's case. The agency arrived

at a figure of $10 per day and determined that complainant suffered

from discrimination for 988 days�from the day she was put on leave

restriction to the day the FAD finding discrimination was issued.

We note, however, that the Commission has not endorsed any "per day"

formula for calculating compensatory damages. Awards in all cases are to

be based on the facts of the particular case, the severity and length

of harm, and awards in similar cases. We therefore disagree with the

agency's calculation and instead look to the facts of the case at hand

and awards in similar cases to determine an appropriate award.

Several Commission decisions have awarded compensatory damages in cases

somewhat similar to complainant's. In one case, a complainant received

$8,000 in non-pecuniary damages where she received a low performance

appraisal and was denied bonus pay because of racial discrimination

and reprisal. Medical testimony was provided regarding complainant's

emotional distress, but the majority of complainant's emotional distress

was caused by factors other than discrimination. See Rountree. In another

case, complainant testified to feelings of incompetency and worthlessness,

stress and sleep problems brought on by the agency's discrimination in

the form of discriminatory AWOL charges, accusations of altering his

application, and other reprimands. Complainant also established that he

had visited a psychologist several times. The Commission awarded him

$12,000 in non-pecuniary damages. See Hull v. Department of Veterans

Affairs, EEOC Appeal No. 01951441 (September 18, 1998). In Mullins

v. United States Postal Service, EEOC Appeal 01954362 (May 22, 1997),

evidence established the complainant suffered from depression, leading

to feelings of pessimism, helplessness, loss of concentration, poor

memory, anxiety, tension, paranoia and alienation, due in part to the

sexual harassment she was subjected to at work. The Commission found,

however, that other sources, such as her own illness and the illness of

her child, contributed to her emotional distress. Complainant was thus

awarded $10,000 in non-pecuniary damages.

In determining the amount of non-pecuniary damages to which complainant

is entitled, the Commission has considered that complainant has

been diagnosed as severely depressed, but also that only a portion

of this depression was shown to be attributable to discrimination.

On the other hand, even the agency concluded that complainant was

subjected to the deliberate scrutiny of a supervisor motivated by

discriminatory animus for a relatively long period of time and that

such a situation would cause emotional trauma. We have considered the

nature and severity of the discrimination<3>, as well as the nature and

severity of complainant's emotional distress. Finally, we have taken

into consideration amounts awarded in similar cases and the purpose of

compensatory damages. The Commission therefore finds that complainant

is entitled to non-pecuniary damages in the amount of $11,000.

CONCLUSION

Based upon our review of the record, and for the foregoing reasons,

the Commission finds that complainant is entitled to receive an award

of compensatory damages in the amount of $11,525, of which $11,000

constitutes compensation for non-pecuniary damages, and $525 constitutes

compensation for complainant's out-of-pocket expenses.

ORDER

The agency is ORDERED to take the following remedial action:

1. Within thirty calendar days of the date that this decision becomes

final, the agency shall issue a check to complainant in the amount

of $11,525. 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 evidence that the

corrective action has been implemented.

2. Since complainant has been represented by an attorney (as defined by

64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.501(e)(1)(iii)) she is entitled to an

award of reasonable attorney's fees incurred in the processing of

her compensatory damages claim. 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 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.

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 (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

02/28/00 ___________________________________

Date Carlton Hadden, Acting Director

Office of Federal Operations

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 complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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 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.

2 The agency considered any damages that occurred after the issuance

of the October 31, 1995 FAD to be future pecuniary damages.

3 We reiterate that while complainant consistently refers to more than

a decade of discriminatory treatment, the finding of discrimination on

record deals only with one incident of discriminatory leave restriction

that lasted one year.