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.