01A02120
05-31-2002
Evelyn J. Watkins, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Evelyn J. Watkins v. Department of the Interior
01A02120
05-31-02
.
Evelyn J. Watkins,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A02120
Agency No. LMS-92-022
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning her award of compensatory damages. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the FAD. In her underlying complaint, complainant
claimed that officials in the agency's Mineral Management Service, New
Orleans, Louisiana, discriminated against her on the bases of her race
(black), age (46) and/or reprisal for engaging in prior EEO activity when,
in July 1992, inter alia, her performance appraisal was downgraded from
�Outstanding� to �Fully Successful.�
At the conclusion of the investigation, appellant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) administrative
judge (AJ). Following a hearing the AJ found that complainant had not
been discriminated against on the bases of her race or age, but that she
had been retaliated against for engaging in prior EEO activity with regard
to her performance appraisal. In its FAD the agency adopted the findings
of the AJ and complainant appealed to the Commission. We affirmed the
FAD and ordered that the agency conduct a supplemental investigation into
complainant's entitlement to compensatory damages. See Evelyn J. Watkins
v. Department of the Interior, EEOC Appeal No. 01951814 (May 6, 1997),
recon. denied, EEOC Request No. 05970824 (March 18, 1999).
On December 2, 1999, the agency issued FAD on the issue of damages, in
which it awarded complainant $500 in non-pecuniary compensatory damages,
with interest, effective August 10, 1997.<1> <2> The agency denied
complainant's request for pecuniary damages, and denied any request for
additional attorney's fees beyond any sums previously paid by the agency.
From this decision, complainant appeals. Complainant makes no new
arguments on appeal. The agency requests that we affirm the FAD.
Complainant submitted a letter from her physician (DR1) stating that
complainant had visited his office in February 1989 and would be returning
the following month. DR1 further requested that complainant be allowed
to use a heater at her desk due to muscle spasm and muscle strain in her
neck and back. Complainant also submitted what appears to be copies of
her desk calendar for the dates June 3 and July 11, 1991, showing her
contacts with Occupational Health Services and with another physician
(DR2). In addition, she submitted a statement from DR2 stating that
complainant had an appointment with him on July 11, 1991. In a July 11,
1997 statement, complainant's attorney indicated that beginning in June
1991, complainant developed stress exhibited by anxiety, sleeplessness,
increased blood pressure and appetite problems and that the symptoms
�still occur, but not as frequently.� The statement further noted that
complainant sought counseling from June 5 through July 18, 1991, after
her self esteem was affected and she developed a diminished self-image
due to being given additional duties without recognition or compensation
while a white co-worker received recognition for less responsibility.
A statement dated January 15, 1995, from complainant's daughter (D),
a certified nursing assistant, noted that complainant's �condition
while being under the employment of the [agency] was one of stress,
constant headache, and nervousness. At one point she suffered from
stress so bad she was stiffened from the neck down for a period of [two]
weeks. She could not go about her normal day-to-day routine without
experiencing tremendous pain.� D further noted that these symptoms
were due to work-related stress. Finally, a statement dated June 17,
1997, from complainant's supervisor (S) during the period from August
1984 to July 1992, indicated that �during this period [complainant]
received work related, stress management services� due to signs and
symptoms of stress during and following complainant's involvement in
EEO and union activities.
Section 102(a) of the Civil Rights Act of 1991 (the CRA 1991), Stat. 1071,
Pub. L. No. 102-166, codified as 42 U.S.C. � 1981a, authorizes an
award of compensatory damages as part of the �make whole� relief for
intentional discrimination in violation of Title VII, as amended.
Section 1981a(b)(2) indicates that compensatory damages do not include
back pay, interest on back pay, or any other type of equitable relief
authorized by Title VII. Section 1981a(b)(3) limits the total amount
of compensatory damages that may be awarded to each complaining party
for future pecuniary losses, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, and other non-pecuniary losses,
according to the number of persons employed by the respondent employer.
The limit for an employer with more than 500 employees, such as the
agency, is $300,000. 42 U.S.C. 1981a(b)(3)(D).
To receive an award of compensatory damages, a complainant must
demonstrate that he or she has been harmed as a result of the
agency's discriminatory action; the extent, nature, and severity
of the harm; and the duration or expected duration of the harm.
Rivera v. Department of the Navy, EEOC Appeal No. 01934157 (July 22,
1994) req. for recon. den. EEOC Request No. 05940927 (December 11,
1995); Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14,
1992), at 11-12, 14. Non-pecuniary losses are losses that are not
subject to precise quantification, including 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. The Commission notes that damage
awards for emotional harm are difficult to determine and that there are
no definitive rules governing the amount to be awarded in given cases.
Non-pecuniary damages must be limited to the sums necessary to compensate
the injured party for actual harm, even where the harm is intangible,
see Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1994),
and should take into account the severity of the harm and the length of
time that the injured party has suffered from the harm. Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act of
1991, EEOC Notice No. 915.002 at 14 (July 14, 1992). A proper award must
meet two goals: that it not be "monstrously excessive" standing alone,
and that it be consistent with awards made in similar cases. See Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989).
We note that the agency is only liable for damages caused by its
retaliatory performance appraisal in July 1992. The medical records
submitted by complainant and the statement from her attorney relate to
treatment received before the agency engaged in reprisal and are thus
unrelated to the discrimination alleged in the instant complaint. This
evidence, as well as the statements from D and S, further indicate that
complainant suffered from stress prior to the agency's act. While the
statements from D and S address periods prior to the agency's retaliatory
act, they also cover the period of the act as well as subsequent periods.
The statements indicate that complainant's condition was exacerbated by
the agency's conduct.
Several Commission decisions have awarded compensatory damages in cases
similar to complainant's. See Jojola-Jemison v. United States Postal
Service, EEOC Appeal No. 01970027 (October 8, 1998)($500 awarded where
complainant provided affidavit attesting to severe anxiety and depression
due to the agency's acts); Striplin v. United States Postal Service, EEOC
Appeal No. 01994478 (February 13, 2002)($500 awarded where complainant
testified to suffering from mental anguish); Braue v. United States
Postal Service, EEOC Appeal No. 01A00230 (March 26, 2001)($500 awarded
where complainant and his wife provided affidavits stating that the
agency's acts felt like �a slap in the face� and complainant's appetite
was affected). Higher amounts have been awarded where the harm has been
shown to be greater. See Adesanya v. United States Postal Service,
EEOC Petition No. 04980016 (February 19, 1997)($1,389 awarded where
complainant submitted affidavits stating that she was irritable,
could not sleep, and had a constant headache); Mozell v. Department
of the Interior, EEOC Appeal No. 01981521 (August 12, 1999)($1,000
awarded where complainant testified that she became more emotional,
irritable and paranoid); DeMeuse v. United States Postal Service, EEOC
Appeal No. 01950324 ($1,500 awarded where complainant testified he was
embarrassed, humiliated, and had suicidal thoughts).
In view of the statements of complainant, D, and S, we AFFIRM the agency's
award of non-pecuniary damages in the amount of $500. This amount takes
into account the evidence provided and the severity and duration of
the harm suffered, and is consistent with prior Commission precedent.
However, we deny complainant's request for a larger award. Despite
complainant's contentions to the contrary, we find much of complainant's
cited stress-related symptoms occurred prior to the events in question,
and were unrelated to the discrimination alleged in the instant complaint.
Regarding pecuniary damages, we AFFIRM the FAD's finding that the
record does not show entitlement to past and future pecuniary damages.
Regarding attorney's fees, we note that in correspondence dated August
28, 1997 the agency notified the Commission that complainant's attorney
agreed, and the agency had approved, a total of $1,557 in attorney's
fees and costs. The agency's December 1999 FAD noted that no additional
attorney's fees were due. It is unclear whether complainant is seeking
additional attorney's fees. To the extent complainant is asking for
additional attorney's fees, we note that no specific dollar amount
has been requested. Therefore, regarding additional attorney's fees,
we affirm the FAD and deny such a request.
Based upon our review of the record, and for the foregoing reasons, it is
the decision of the Commission to AFFIRM the agency's FAD. The agency
is directed to take remedial actions in accordance with this decision
and ORDER below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within sixty (60) days of the date on which this decision becomes final,
the agency, if it has not already done so, shall tender to complainant
nonpecuniary compensatory damages in the amount of $500.
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 (K0501)
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)
(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 (M0701)
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
_____05-31-02_____________
Date
1Correspondence from the agency dated March 1, 2000, indicates
that the agency has fully complied with all of the Commission's
directions as enunciated in our prior decision. Accordingly,
the only matter at issue in this decision is the dollar amount
of pecuniary and non-pecuniary damages due complainant.
2The agency has not argued that compensatory damages are unavailable in
this case based on the reprisal claim arising out of prior EEO activity
related to the ADEA. See Falks v. Department of the Treasury, EEOC
Request No. 05960250 (May 9, 1996).