Helen E. St. Louis, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 6, 2000
01985846 (E.E.O.C. Oct. 6, 2000)

01985846

10-06-2000

Helen E. St. Louis, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Helen E. St. Louis v. Department of Agriculture

01985846

October 6, 2000

Helen E. St. Louis, )

Complainant, )

) Appeal No. 01985846

v. ) Agency No. 920914

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

DECISION

INTRODUCTION

The 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. � 2000e et seq.;

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.<1> The appeal is accepted by the Commission in

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

29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the agency correctly calculated

the compensatory damages to which the complainant is entitled.

BACKGROUND

During the period in question, the complainant was employed as an

Operations Technician at the agency's facility in Bangor, Maine. In May

1992, the complainant filed a formal EEO complaint alleging discrimination

based on sex (female) and age (over 40) when she was allegedly subjected

to hostile environment harassment by her supervisor (the responsible

official, RO). Following an investigation, the complainant did

not request a hearing and the agency issued a final decision (FAD-1)

on August 29, 1994, finding discrimination. Specifically, the decision

found that the RO had intentionally poked the complainant's shoulder on

May 18, 1992, and that, when she objected, the RO poked her even harder.

The decision also found that the RO had made a number of offensive

comments to the complainant, which included calling her �old lady or

grandma,� repeatedly using the term �f******� in her presence, calling

her a �pucker sucker,� and ridiculing her hair. As relief, the decision

found that the complainant was entitled to attorney's fees and provable

compensatory damages. The complainant thereafter submitted evidence in

support of compensatory damages and the agency issued a decision (FAD-2)

dated June 10, 1998, awarding $9,100 in non-pecuniary damages and no

pecuniary damages. It is from this decision that the complainant now

appeals.

In considering the complainant's entitlement to compensatory damages,

the agency relied solely on a letter dated June 25, 1992, from one of the

psychiatrists (Psychiatrist 1) who initially treated the complainant.

That letter is not included in the record, but according to FAD-2 it

states, in relevant part:

[The complainant] has had headaches, but no other associated somatic

symptoms ... She is anxious, often tearful, has trouble sleeping at night

and has nightmares. She states she has dreams of her assailant coming

at her to hit her again ... I am treating her for post-traumatic anxiety

with a long-term anxiolytic, Buspar. I feel her anxiety is entirely

related to the assault at work ...

The agency found that this letter, insofar as it immediately succeeded the

discrimination, was of limited value in assessing the nature, duration,

and severity of the harm experienced by the complainant.

Although the agency has characterized Psychiatrist 1's letter as the

only evidence submitted by the complainant in support of her claim,

the record contains other such evidence. In particular, there is a

report from a second psychiatrist (Psychiatrist 2) who examined the

complainant on June 23, 1992. According to that report, the stress

the complainant experienced at work resulted in �difficulty sleeping,

concentrating, anhedonia, anergia, irritability, nightmares, flashbacks

of her difficulties at work, social withdrawal and marked anger.� The

report also states that it was not in the complainant's best interest,

from a psychiatric standpoint, to return to her position with the agency.

In this regard, the record reveals that the complainant stopped reporting

for work in June 1992 and proceeded to file a claim with the Office of

Workers' Compensation Programs (OWCP) for post traumatic stress disorder

(PTSD). That claim was subsequently approved in September 1992.

Although the complainant returned to work in June 1993, she stopped

reporting for work in September 1993.

In conjunction with her OWCP claim, the complainant began seeing a third

psychiatrist (Psychiatrist 3) in September 1992. In a report dated

September 23, 1994, Psychiatrist 3 stated that the RO's actions had

caused the complainant to develop severe PTSD and that she had �intense

psychological distress at exposure to anything that resembles having

to go to work at [her] building or see[ing] [the RO].� Psychiatrist

3 stated that the PTSD had resulted in several problems, including

diminished interest on the complainant's part in significant activities;

a feeling of detachment and estrangement from others, including her

mother; and �persistent symptoms of increased arousal with sleep

problems, irritability, difficulty concentrating, hypervigilance, and

exaggerated startle response.� Psychiatrist 3 stated that the plans for

the complainant's future treatment included psychotherapy and medical

management and noted that, although the complainant might partially

recover within 10 years, she would never fully recover.

To compensate her for the emotional harm she has experienced, the

complainant requests non-pecuniary damages in the amount of $500,000.

The complainant also requests pecuniary damages for the medical expenses

she has incurred.<2> In support of the latter claim, the complainant has

submitted several pieces of evidence, the primary one being documentation

indicating that she spent $408.33 on prescription medication between

June 1992 and May 1993. She also states, however, that most of her

medical expenses have been paid by OWCP, and the only expenditure she

identifies as not having been covered is an $85.00 payment she made to

Psychiatrist 2. In this regard, the record contains a canceled check

from the complainant to Psychiatrist 2 in that amount.

The complainant also requests damages and/or reimbursement for a number of

other items. These include attorney's fees; state and Federal taxes she

says were improperly withheld from her OWCP payments; sick and annual

leave she would have accumulated but for the fact that the agency's

actions prevented her from working; loss of both retirement funds and

salary she would have contributed/received had she continued to work;

life insurance that did not vest because she was unable to work the

necessary three years; and money taken from her salary for health

insurance while she was receiving benefits from OWCP.

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 West v. Gibson, 527 U.S. 212 (1999), the Supreme

Court held that Congress afforded the Commission authority to award such

damages in the administrative process.<3>

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.

The Complainant's Evidence of Injury and Causation

Based on the medical evidence submitted by the complainant, we find she

has established that, as a result of the agency's discrimination, she

developed PTSD which resulted in feelings of estrangement, irritability,

sleep problems, and difficulty concentrating. Accordingly, the Commission

finds that the complainant has established a causal relationship between

her emotional harm and the agency's actions. The Commission will now

address the complainant's entitlement to the damages she has requested.

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.

Of the items for which the complainant seeks reimbursement, the only ones

that can be properly characterized as pecuniary losses are the medical

expenses she has incurred. As discussed, the primary piece of evidence

submitted by the complainant is the documentation indicating that she

spent $408.33 on prescription medication between June 1992 and May 1993.

The complainant also indicated, however, that most of her medical expenses

were covered by OWCP under the Federal Employees Compensation Act (FECA).

To the extent the only expenditure identified by the complainant as not

having been covered by FECA was the $85.00 payment to Psychiatrist 2,

we presume that the rest of her expenses, including the $408.33, were

covered by FECA. For that reason, they are not recoverable as damages.<4>

With regard to the $85.00, the Commission finds sufficient evidence

to conclude that this was an expenditure made by the complainant that

was directly related to the effects of the agency's discrimination.

Therefore, the Commission finds that the complainant is entitled to

reimbursement for that amount.

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

notes that for a proper award of non-pecuniary damages, 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 Cygnar v. City of Chicago, 865

F.2d 827, 848 (7th Cir. 1989); US EEOC v. AIC Security Investigations,

Ltd., 823 F.Supp. 573, 574 (N.D. Ill. 1993).

The agency's award of $9,100 was premised on its conclusion that

Psychiatrist 1's report was of limited value in addressing the nature,

duration, and severity of the complainant's psychological harm. The basis

for that conclusion was that the report, which was issued shortly after

the discrimination, did not address its long-term effects. The Commission

notes, however, that the long-term effects of the discrimination were

addressed in Psychiatrist 3's report. As discussed, that report was

issued more than two years after the discrimination and states that the

complainant would never fully recover from the discrimination and that

any partial recovery would take up to 10 years. This report, along

with Psychiatrist 2's report, also indicates that the harm experienced

by the complainant effectively ended her career with the agency.

Based on the foregoing, the Commission finds that the $9,100 awarded

by the agency is not sufficient to compensate the complainant for

her injuries. In arriving at an appropriate award, the Commission

is guided by its awards in similar cases. In particular, in Brinkley

v. U.S. Postal Service, EEOC Appeal No. 01953977 (January 23, 1998),

modified, EEOC Request No. 05980429 (August 12, 1999), we awarded $110,000

in damages to an individual who, as a result of discriminatory harassment,

experienced severe emotional harm and was unable to return to work for

the agency. Similarly, in Finlay v. U.S. Postal Service, EEOC Appeal

No. 01942985 (April 29, 1997), we awarded $100,000 to an individual who

experienced PTSD and major depression that rendered her unable to work.

In the present case, the Commission finds that, based on the foregoing

considerations, an award of $105,000 is appropriate to compensate the

complainant for her injuries.

Attorneys Fees

The Commission notes that attorney's fees are not encompassed by an award

of compensatory damages. Moreover, FAD-1 provided the complainant with a

separate mechanism for requesting attorneys fees.<5> For these reasons,

the issue of attorney's fees is not properly before the Commission at

this time and will not be addressed.

Other Requested Damages

As discussed, the complainant has requested damages for a number of

other items, including loss of leave, salary, life insurance, and

retirement benefits. In considering these items, the Commission finds

that none of them are encompassed in a compensatory damages claim. See

Mullins v. U.S. Postal Service, EEOC Appeal No. 01954362 (May 22, 1997).

Rather, these amounts are more properly characterized as equitable relief

under � 706(g) of Title VII. Id. Because FAD-2 dealt exclusively with

compensatory damages, the question of whether the complainant was entitled

to remuneration for these items is not before the Commission.

CONCLUSION

For the foregoing reasons and after a careful review of the record,

FAD-2 is MODIFIED as set forth in the Commission's order below.

ORDER

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 shall tender to the complainant pecuniary damages in the

amount of $85.00 and non-pecuniary compensatory damages in the amount

of $105,000 less any amount previously paid to the complainant for

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 evidence that the corrective action

has been implemented.

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).

ATTORNEY'S FEES (H1199)

If 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)), 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 (M0300)

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); 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 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:

10-06-00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

01 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.

02 According to FAD-2, the complainant also requested $50,000 in

future medical expenses. We note that the complainant is not requesting

such damages at this juncture and that she has not submitted documentation

which supports an entitlement to future medical expenses.

03 Although compensatory damages are not available under the ADEA,

the complainant is eligible to receive such damages insofar as the

agency's actions were also found to constitute sex discrimination in

violation of Title VII.

04 The complainant has not requested application of the collateral

source rule, which provides that "benefits received by the plaintiff

from a source collateral to the defendant may not be used to reduce that

defendant's liability for damages." Finlay v. U.S. Postal Service, EEOC

Appeal No. 01942985 (April 29, 1997) (citing 1 Dobbs, Law of Remedies �

3.8(1), at 372-73 (2d ed. 1993)). In any event, for that rule to apply,

the source of the coverage must be collateral to the agency, e.g., an

insurance company. In this regard, the Commission has held that FECA

benefits, to the extent they are paid by the agency, are not collateral

source funds and are not recoverable by the complainant. Id.

05 It is not apparent whether the complainant, in accordance with

FAD-1, ever submitted a fee petition.