01985401
10-31-2000
Evangeline Z. Bates, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Evangeline Z. Bates v. Department of the Air Force
01985401
October 31, 2000
Evangeline Z. Bates, )
Complainant, )
) Appeal No. 01985401
v. ) Agency No. OD1C960010
)
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the
agency concerning her allegation that the agency violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et
seq., and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. �621 et seq. The appeal is accepted by the Commission in
accordance with the provisions of 29 C.F.R. �1614.405.<1>
ISSUE PRESENTED
The issue presented herein is whether the agency accurately calculated
the amount of compensatory damages complainant was entitled to receive.
BACKGROUND
During the period in question, complainant was employed as a Civilian
Personnel Officer, GM-201-14, at Offutt Air Force Base. Complainant
filed a formal complaint alleging discrimination based on sex, national
origin (Hispanic), age (51), and reprisal when she received a rating of
"Unacceptable" on her 1996 performance appraisal (the PA). Following an
investigation, the agency issued a final decision dated June 30, 1997,
which found that complainant had been retaliated against based on
her prior EEO activity. As relief, the decision ordered the agency
to re-evaluate complainant and provide her with a performance award
commensurate with her revised rating.<0> The decision also allowed
complainant 60 days in which to adduce objective evidence in support of
her request for compensatory damages. Complainant thereafter provided
such evidence, and the agency issued a decision (FAD) dated June 3, 1998,
in which it awarded her $1,000 in non-pecuniary damages but rejected her
claim for pecuniary damages. It is from this decision that complainant
now appeals.
In articulating her claim for compensatory damages, complainant has
sought to include several actions that were contemporaneous with her
receipt of the PA in August 1996. Specifically, complainant had been
investigated by her superiors for alleged misconduct, and, as a result,
received a six-month suspension and a demotion to the GS-11 level.
Complainant appealed these actions to the Merit Systems Protection Board
(MSPB), and it was shortly thereafter that she received the PA.<0>
In September 1996, complainant requested a transfer into the position
of Supervisory Personnel Management Specialist, which was located at
Howard AFB in Panama. Although the transfer was tentatively approved,
an official at Howard denied the transfer after learning that complainant
had been suspended for misconduct.
In support of her claim, complainant seeks damages not only with regard
to harm caused by the PA, but for harm related to the denial of the
aforementioned transfer request. Complainant's rationale is that, had
she not received the PA, her request would not have been denied, and she
seeks pecuniary damages in the amount of $209,489.68 to compensate her
for the denial. This amount is comprised, in effect, of the difference
in salary and benefits between the position complainant was in and what
she would have received had the transfer request been approved.
Complainant also requests $200,000 in nonpecuniary damages for pain,
suffering, humiliation, loss of enjoyment of life, and harm to her
professional reputation. In support of this request, complainant
testified:
During the performance appraisal period and after the unacceptable rating,
I experienced severe humiliation, embarrassment, emotional distress,
mental anguish, and loss of enjoyment of life. In addition, the [PA]
... created irreparable harm to my reputation and professional standing
throughout the Federal government.
Complainant also submitted statements from a co-worker (Employee A)
and several members of her church group. Employee A testified that,
as a result of the agency's actions, complainant's professional
reputation within the agency was harmed. In discussing that harm,
however, Employee A did not focus on the PA, but, instead, on the
investigation of complainant and the subsequent suspension and demotion.
In particular, Employee A stated that, when complainant was suspended,
"rumors were rampant ... and many employees assumed [complainant]
to be guilty of something or she would not have been suspended."
Employee A's only mention of the PA was her statement that "due to the
investigations, resulting adverse action, and unacceptable performance
rating [complainant's] career opportunities were jeopardized."
The statements from the members of complainant's church group indicate
that, during the period in question, complainant appeared frustrated and
distressed, developed a skin rash, and was unable to sleep. Like Employee
A, however, these individuals focused on incidents other than the PA,
including complainant's demotion, suspension, and the denial of her
transfer request.
ANALYSIS AND FINDINGS
Pursuant to �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 the agency, the
limit of liability for future pecuniary and non-pecuniary damages is
$300,000. Id. In Jackson v. U.S. Postal Service, EEOC Appeal No. 01923399
(November 12, 1992), req. for recon. den'd, EEOC Request No. 05930306
(February 1, 1993), the Commission held that Congress afforded it the
authority to award such damages in the administrative process. See West
v. Gibson, No. 98-238, 1999 WL 380643 (U.S. June 14, 1999).
The particulars of what relief may be awarded, and what proof is
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. Id. at 11-12, 14; Rivera v. Dept. 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. 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 the complainant, and the duration or
expected duration of the harm. Id. at 14.
Pecuniary Damages
Pecuniary losses are out-of-pocket expenses that are incurred as a result
of the employer's unlawful action, including job-hunting expenses,
moving expenses, medical expenses, psychiatric expenses, physical
therapy expenses, and other quantifiable out-of-pocket expenses. Id.
As discussed, complainant requests pecuniary damages in the amount of
$209,489.68 for losses related to the denial of the transfer to Howard
AFB. In considering this request, we initially note that the amount in
question does not comprise either past or present out-of-pocket expenses,
but, rather, salary and benefits complainant would have received had
she been transferred. For that reason, the Commission finds that this
amount constitutes back pay rather than pecuniary losses.
Even assuming, however, that the aforementioned amount did constitute
pecuniary losses, it was the denial of the transfer, not the PA, that
resulted in those losses. For that reason, the Commission finds that
complainant has not established either a direct or proximate link between
the PA and the $209,489.68.<0> Although complainant asserts that the PA
resulted in the denial of the transfer, it is apparent that, even in the
absence of the PA, the transfer would have been denied. In any event,
the Commission finds that, to the extent the denial of the transfer
constitutes an intervening event that separates the losses in question
from the PA, complainant must demonstrate that the denial itself was
discriminatory in order to claim an entitlement to the $209,489.68.<0>
Non-Pecuniary Damages
In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993), the Commission explained that "objective evidence" of non-pecuniary
damages could include a statement by the complainant explaining how
he or she was affected by the discrimination. Statements from others,
including family members, friends, and health care providers could address
the outward manifestations of the impact of the discrimination on the
complainant. Id. The complainant could also submit documentation
of medical or psychiatric treatment related to the effects of the
discrimination. Id. Non-pecuniary damages must be limited to the sums
necessary to compensate the injured party for the actual harm and should
take into account the severity of the harm and the length of time the
injured party has suffered from the harm. Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
The Commission initially finds that complainant has not adduced any
objective medical evidence establishing a connection between the PA and
the harm she has experienced. Although such evidence is not mandatory,
we note that the other evidence complainant has submitted does not, for
the most part, establish such a connection. In particular, the statements
provided by Employee A and the members of complainant's church group
mention the PA in passing while focusing on the investigation, demotion,
and suspension of complainant. Complainant is cognizant of this fact,
but, on appeal, asserts that the PA cannot be separated from the demotion
and suspension because she "only received the unwarranted reassignment and
unlawful suspension because she was issued a bad performance appraisal."
This is clearly not the case, however, as both the demotion and suspension
preceded the PA. Moreover, because complainant has never established
that either the demotion or suspension were discriminatory, she is not
entitled to any damages for the harm related to these actions.
The most persuasive evidence submitted by complainant is her testimony
that, as a result of the PA, she experienced pain, suffering, and
humiliation. In so finding, the Commission is particularly cognizant
that, prior to her receipt of the PA, complainant had consistently
received ratings of "Outstanding." In calculating an appropriate
award, we have considered similar situations in which complainants
adduced non-medical evidence in support of harm that was similar in
degree to that experienced by complainant. See Pailin v. Department of
Defense, EEOC Appeal No. 01954350 (January 26, 1998) ($2,500 in damages
where complainant testified that she experienced tension, depression,
and withdrawal from co-workers); Demeuse v. U.S. Postal Service, EEOC
Appeal No. 01950324 (May 22, 1997) ($1,500 in damages where complainant
testified as to exacerbation of post-traumatic stress disorder); Lawrence
v. U.S. Postal Service, EEOC Appeal No. 01952288 (April 18, 1996) ($3,000
in damages where complainant presented primarily non-medical evidence
that she was irritable, experienced anxiety attacks, and was shunned by
her co-workers). In this case, we find, based on the aforementioned
precedent and the evidence submitted by complainant, that an award of
$2,000 is sufficient to compensate her for her injuries.
CONCLUSION
For the foregoing reasons and after a careful review of the record, it
is the decision of the Commission to MODIFY the FAD and award complainant
$2,000 in compensatory damages.
ORDER
The agency is ORDERED to take the following remedial action:
Within forty-five (45) days of the date on which this decision becomes
final, the agency shall tender to complainant non-pecuniary compensatory
damages in the amount of $2,000.
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.
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 (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:
10-31-00
Date Carlton M. Hadden,Director
Office of Federal Operations
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.
01 Complainant's rating was subsequently upgraded to "Excellent"
and she received a cash award.
02 Although the MSPB found that the suspension and the demotion had
not been sustained, it also found that complainant had not established
that these actions were discriminatory. Complainant appealed and the
Commission concurred with that decision. Bates v. Department of the Air
Force, EEOC Petition No. 03980079 (July 27, 1998).
03 "Proximate cause" has been defined as that "which in a natural
sequence, unbroken by any new cause, produces that event and without
which that event would not have occurred." Caraballo v. United States,
830 F.2d 19, 22 (2d Cir. 1987).
04 Complainant filed a complaint in which she alleged that the denial of
the transfer was discriminatory. That complaint (Agency No. ODIC960010)
was dismissed by the agency and is currently on appeal to the Commission
(EEOC Appeal No. 01990086).