01981308
08-05-1999
Jean M. Chow, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Jean M. Chow v. Department of the Army
01981308
August 5, 1999
Jean M. Chow, )
Appellant, )
)
v. )
) Appeal No. 01981308
Louis Caldera, ) Agency Nos. 93-10-0004
Secretary, ) 94-07-0156
Department of the Army, ) Hearing Nos. 370-95-2003X
Agency. ) 370-95-2131X
_______________________________)
DECISION
Appellant, through her attorney, filed an appeal concerning the agency's
noncompliance with the provisions of an August 28, 1995 final decision.
The appeal is deemed timely (see 29 C.F.R. ��1614.401(a) and .504(b)),
and is accepted in accordance with EEOC Order No. 960.001, as amended.
The issue presented is whether the agency's subsequent April 2, 1998
decision to award appellant $93,031.01 in compensatory damages constitutes
full, "make whole" relief.
On August 28, 1995, the agency adopted the findings of an EEOC
Administrative Judge (AJ) that appellant was subjected to sex
discrimination (sexual harassment) and reprisal for engaging in a
protected activity. The agency also adopted, among other things, the
AJ's determination that appellant was entitled to those compensatory
damages that were incurred as a result of the agency's actions. The AJ,
in finding that there was a causal connection between the discriminatory
acts and the harm suffered by appellant, determined that the following
payments were appropriate:
a). Appellant's psychological bills from August 1993, to present (July
12, 1995).
b). Appellant's future psychologist bills until such time that
[appellant's psychologist] determines that psychotherapy is no longer
necessary for harm resulting from work related stress.
c). Any out of pocket expenses for medical care or prescription drugs
that were not paid by appellant's health insurance plan.
d). Non-monetary losses to include, but not limited to, sleeplessness,
headaches, stomach problems, fatigue, anxiety and depression.
On October 30, 1995, the appellant provided a detailed 84-page submission
supporting her claim that she was entitled to compensatory damages in
the amount of $216,565.41.<1>
In November 1997, appellant filed the present appeal because the agency,
after two years, had not yet issued a determination. According to
appellant's attorney, she inquired about the status of appellant's claim
numerous times over the two year period, and was told that an award
"[w]ould be issued in the near future." On October 16, 1997, pursuant to
29 C.F.R. �1614.504(b), the appellant notified the EEO Director that the
agency had not complied with its final decision. This appeal was filed
when, after 35 days, the agency did not respond. Appellant sought the
entire amount she requested plus interest. On April 2, 1998, the agency
issued a final decision that established appellant's total compensatory
damages at $93,031.01. The agency did not offer an explanation regarding
its 2 year delay in reaching a decision. There is no evidence that
appellant actually received any money from the agency. Although this
matter came to the Commission as an allegation of non-compliance, we
will treat it as an appeal of the agency's April 2, 1998 decision.
Because the agency adopted the findings of the AJ, the only matter
before us is whether appellant was adequately compensated by the amount
provided by the agency. When discrimination is found, the agency must
provide the complainant with an equitable remedy that constitutes full,
make-whole relief in order to restore her, as nearly as possible, to
the position she would have occupied absent the discrimination. See,
e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976);
Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya
v. USPS, EEOC Appeal No. 01933395 (July 21, 1994). The Commission
recognizes that not all harms are amenable to a precise quantification;
the burden of limiting the remedy, however, rests with the employer.
Smallwood v. United Airlines, Inc., 728 F.2d 614, 615 n.5 (4th Cir.),
cert. denied, 469 U.S. 832 (1984).
Compensatory Damages
a. Legal Standards for an Award of Compensatory Damages
Section 102(a) of the Civil Rights Act of 1991, 105 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 of the Civil Rights
Act of 1964, as amended. 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).
Compensatory damages may be awarded for the past pecuniary losses,
future pecuniary losses, and non-pecuniary losses which are directly or
proximately caused by the agency's discriminatory conduct. Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. N-915.002 (July 14, 1992), at 8. 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, and other quantifiable out-of-pocket expenses. Id. Past
pecuniary losses are the pecuniary losses that are incurred prior
to the resolution of a complaint via a finding of discrimination, an
offer of full relief, or a voluntary settlement. Id. at 8-9. Future
pecuniary losses are losses that are likely to occur after resolution
of a complaint. Id. at 9. Non-pecuniary losses are 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. Id.
A compensatory damages award should fully compensate a complainant for
the harm caused by the agency's discriminatory action even if the harm
is intangible. Id. at 13. There are no precise formulae for determining
the amount of damages payable for non-pecuniary losses. Damage awards for
non-pecuniary losses that have been assessed by juries and courts have
varied substantially from one another. Id. at 13. However, an award of
compensatory damages for non-pecuniary losses, including emotional harm,
should reflect the extent to which the respondent's discriminatory action
directly or proximately caused the harm and the extent to which other
factors also caused the harm. Id. at 11-12. An award of compensatory
damages for non-pecuniary losses should also reflect the nature and
severity of the harm and the duration or expected duration of the
harm. Id. at 14.
B. Appellant's Evidence of Injury and Causation
Appellant submitted documentation in support of the following claims:
1. Past Pecuniary Losses
Psychologist bills, August 1993
to September 19, 1995 $10,125.00
Transportation to doctor's office 38.10
Health care provider 145.00
Out-of-pocket prescription drug costs 16.00
Hair care kit 73.71<2>
$10,397.81
The agency awarded appellant $10,397.81 for her past pecuniary losses.
2. Future Pecuniary Losses
Appellant sought $6,177.60 for future pecuniary losses. They are listed
as follows:
Psychologist bills (1 year) $6,000.00
Transportation costs (BART $3.70 x 48 visits) 177.60
$6,177.60
The agency awarded appellant $4,633.20 for future pecuniary losses.
3. Non-pecuniary Losses
Appellant sought $200,000 for non-pecuniary damages; however, the agency
awarded her $78,000.00.
C. Calculation of Damages Payable
1. Past Pecuniary Damages
Since there was no dispute between the parties, we find that the
$10,397.81 awarded to appellant is not at issue.
2. Future Pecuniary Damages
Appellant's psychologist testified in May 1995, that she would need 6 to
9 months of additional therapy, with approximately three to four sessions
a month.<3> Therefore, the agency's determination that appellant was
entitled to $4,633.20 was arrived at as follows: 9 months x 4 sessions =
36 sessions @ $125.00 per session = $4,500.00; 36 trips @ $3.70 = $133.20.
Appellant, however, submitted a letter, dated September 19, 1995, from the
psychologist that indicated "[i]t is my best estimate that [appellant]
will require 12 to 18 months of additional treatment. Appellant,
in her calculations, used the lower estimate of 12 months. Since the
agency did not utilize the more recent estimate in its calculations,
we find that appellant is entitled to an additional $1544.40.<4>
3. Non-Pecuniary Damages
In the present case, appellant testified that she began feeling
uncomfortable around her supervisor in March 1993 when he began
making comments of a sexual nature to her. After appellant rejected
his advances, his demeanor toward her became hostile. According to
appellant, she became upset, nervous and began experiencing abdominal
pains, chest pains and headaches in May 1993. Additionally, she testified
that she experienced difficulty breathing and sleeping due to nightmares,
and that she gained weight and began losing her hair. Appellant further
testified that she became so depressed that she did not want to socialize
with others, she stopped jogging, walking her dog and eventually ended
her relationship with her boyfriend. The record also contains affidavits
from several of appellant's friends that support her contentions.
In August 1993, appellant began seeing a psychologist two to three
times a month. The record indicates that appellant was subsequently
placed on anti-anxiety medication. She subsequently was prescribed
anti-depressant medication. As previously noted, her psychologist
indicated in his September 19, 1995 letter that she would require 12
to 18 months of additional treatment.<5> Utilizing the lower estimate,
the duration of appellant's distress would have been 42 months.<6>
It is a Commission goal to make damage awards for emotional harm
consistent with awards in similar cases. In Carpenter v. Department of
Agriculture, EEOC Appeal No. 01945652 (July 17, 1995), the Commission
awarded $75,000 for non-pecuniary damages in order to compensate the
complainant for the deterioration of her medical and emotional condition.
According to the complainant, the agency's actions resulted in her
seeking disability retirement, because of an aggravation of her asthma,
panic attacks, insomnia, digestive problems, loss of spirit, social
withdrawal, feelings of hostility, irritability, and a loss of libido.
In Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April
29, 1997), the Commission awarded $100,000 in non-pecuniary damages in
order to compensate the complaint for severe psychological injuries
over four years. The complainant's condition, which was expected
to continue for an indeterminate period of time, included ongoing
depression, frequent crying, concern for physical safety, loss of charm,
lethargy, social withdrawal, concern for physical safety, recurring
nightmares and memories of harassment, a damaged marriage, stomach
distress, and headaches. In Santiago v. Department of the Army, EEOC
Appeal No. 01955684 (October 14, 1998, the Commission awarded $125,000
in non-pecuniary damages for emotional distress, i.e., depression,
anxiety, paranoia, confusion, moodiness, insomnia, social withdrawal,
tearfulness, fatigue, loss of libido, loss of self-esteem, chest and
stomach pains, digestive problems, and incidents of shortness of breath.
The complainant repeatedly sought medical treatment for her problems,
including an invasive diagnostic procedure, after she was removed in 1993.
The duration of the complainant's emotional and psychological distress
and physical illness was found to be from November 21, 1991 to the date
appellant was removed, on February 12, 1993.
Given the severity and the duration of the psychological and physical
injuries experienced by appellant, the awards the Commission has
made in similar cases and the amount provided by the agency, we find
that appellant is entitled to non-pecuniary damages in the amount
of $100,000. This takes into account all of appellant's emotional
and physical problems. The Commission finds that the amount of this
award is motivated by neither passion nor prejudice; is not "monstrously
excessive" standing alone; and is not inconsistent with amounts awarded
in similar cases. See Cygnar v. City of Chicago, 865 F.2d 827, 848
(7th Cir. 1989); and EEOC v. AIC Security Investigations, Ltd., 823
F.Supp. 573, 574 (N.D.Ill. 1993). Appellant, therefore, is entitled to
an additional $22,000.00 for non-pecuniary damages.
We also find that the appellant is entitled to an award of interest
for the agency's delay in paying proven compensatory damages. See April
v. Department of Agriculture, EEOC Appeal No. 01963775 (June 5, 1997).
Since appellant became entitled to an award of proven compensatory
damages in August 1995, and the appellant timely submitted relevant
proof in support of compensatory damages on October 30, 1995, we deem it
appropriate to award appellant interest on her total award of $116,575.41
from December 1, 1995, until the date the agency makes the payment.<7>
Accordingly, the agency's FAD is modified.
ORDER
The agency is ordered to take the following remedial actions:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue the appellant a check for $116,575.41
for proven compensatory damages plus an amount for interest accrued on
that sum from December 1, 1995 to the date of payment. Interest shall be
computed in accordance with the guidance contained in 5 C.F.R. �550.806(d)
and (e) (1996).
2. Within thirty (30) calendar days of the date this decision becomes
final, the appellant shall submit to the agency (not to the Commission)
a verified statement in support of attorney's fees for pressing her
claim for compensatory damages, including attorney's fees incurred for
this appeal. Within twenty (20) calendar days of the date of receipt
of the verified statement, the agency shall issue to the appellant a
determination on the amount of attorney's fees along with a check for
the sum the agency determines as being appropriate in accordance with
29 C.F.R. 1614.501(e). The agency's determination shall include: a
notice of right to appeal the determination to the Commission; specific
reasons for determining the amount of the award; and, a notice that
the appellant may cash the check for the awarded sum of attorney's fees
without prejudice to her right to appeal the award to the Commission.
3. The agency shall submit copies of checks for compensatory damages,
interest on compensatory damages and attorney's fees, and the agency's
determination on attorney's fees, to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Aug. 5, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1A more detailed analysis of appellant's claim will follow.
2According to the record, appellant suffered stress related hair loss.
3Hearing Transcript at pgs. 143-144.
43 months x 4 sessions = 12 sessions @ $125.00 = $1500; 12 trips @
$3.70 = 44.40.
5Appellant's condition was diagnosed as an Adjustment Reaction with
Depressed Mood and Psychological Factors Affecting Physical Condition.
6Appellant's psychologist found no evidence that appellant's condition
existed prior to March 1993.
7We again note that the agency has never provided an explanation to
this Commission regarding its delay in issuing its determination of
appellant's damages.