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.