05980021
12-10-1999
Joy L. Wooten, Complainant, v. Daniel Glickman, Secretary, Department of Agriculture, Agency.
Joy L. Wooten, )
Complainant, )
)
v. ) Request No. 05980021
) Appeal No. 01960727
Daniel Glickman, ) Agency No. 103195
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DENYING REQUEST FOR RECONSIDERATION
On September 30, 1997, Joy L. Wooten (the complainant) initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider the
decision in Joy L. Wooten v. Daniel Glickman, Secretary, Department
of Agriculture, EEOC Appeal No. 01960727 (August 28, 1997).<0> EEOC
Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision where the requesting
party demonstrates 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. See 64 Fed. Reg. 37,644, 37,654 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.405(b)).
For the reasons set forth herein, the complainant's request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision's award of
compensatory damages was sufficient to compensate the complainant for
her emotional harm.
BACKGROUND
During the period in question, the complainant was employed as a Clerk
Typist at the agency's facility in Perry, Oklahoma. In September 1993,
the complainant was informed that her performance was unsatisfactory and
she was thereafter issued a notice of proposed removal. Although this
notice was later withdrawn, the complainant stopped reporting for work
after November 5, 1993. The complainant subsequently filed a complaint
alleging that the aforementioned events discriminated against her based
on mental disability (depression). By settlement agreement (SA) dated May
16, 1994, the complainant agreed to withdraw the complaint in exchange for
several things, including the payment of �proven compensatory damages.�
The complainant subsequently submitted a request, with supporting
documentation, for $822,414.98 in past and future pecuniary damages and
$4,112,074.98 for non-pecuniary damages. The agency thereafter issued
a final decision (FAD) finding that the complainant was not entitled to
any of the requested damages insofar as she had not established a causal
connection between the agency's actions and the alleged harm.
The complainant appealed the FAD and the prior decision found that
there was sufficient evidence to establish a connection between the
complainant's emotional harm and the agency's actions. In particular,
the decision cited documents from the complainant's psychiatrist (the
Psychiatrist) in which he made a number of observations concerning her
mental state. In particular, the Psychiatrist diagnosed the complainant
with �chronic severe depression,� which he stated made her suicidal and
limited her ability to cope, concentrate, and perform �goal oriented�
activities. The Psychiatrist stated that, as a result, the complainant
would be unable to work for a year and would need treatment for three
years. According to the Psychiatrist, although the complainant did
have a pre-existing mental condition, the agency's actions had �severely
attenuated� her progress and aggravated the condition.
The prior decision also found, however, that the Psychiatrist offered
conflicting statements in assessing the connection between the
complainant's mental state and the agency's actions. For example,
the Psychiatrist attributed 100% of the complainant's then-current
problems to the agency's actions while simultaneously explaining that the
complainant's mental disability dated back to her childhood. In this
regard, the Psychiatrist, who had been treating the complainant for
nearly three years prior to the agency's actions, stated that he could
not remember a time when she was not suicidal and that she had a long
history of depression and alcohol abuse.
In determining the appropriate amount of damages, the prior decision
initially found that the complainant was entitled to past pecuniary
damages in the amount of $715.00 as well as reimbursement for health
insurance premiums. The decision awarded future pecuniary damages in
the amount of $16,965.00 based on the Psychiatrist's statement that the
complainant would require three more years of treatment at $130.00 per
session. Finally, the decision awarded $10,000 in non-pecuniary damages.
In support of her request to reconsider, the complainant does not
challenge the award of past and future pecuniary damages, but argues that
the award of $10,000 is insufficient to compensate her for her losses.
In particular, the complainant argues that the prior decision failed to
recognize the magnitude of the agency's actions on her mental well-being,
noting that she is still unable to work. The complainant also reiterates
the Psychiatrist's statement that 100% of her disability was attributable
to the agency's actions. Finally, the complainant argues that she is
entitled to an award of $214,300 in non-pecuniary damages. This amount is
derived from the Commission's decision in Wallis v. U.S. Postal Service,
EEOC Appeal No. 01950510 (November 13, 1995), in which we awarded the
complainant $50,000 in non-pecuniary damages for emotional harm expected
to last seven years. The complainant's rationale is that, because her
emotional harm will last for 30 years,<0> she is entitled to 4.286 times
the amount of damages in Wallis, i.e., $214,300.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of
the criteria of 29 C.F.R. �1614.405(b) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
Having carefully reviewed the evidence of record, along with the
complainant's request, we find insufficient grounds for disturbing the
prior decision's award of damages. Although the complainant argues
that the decision did not consider the magnitude of the harm caused by
the agency's actions, the Commission agrees with the prior decision's
conclusion that the Psychiatrist offered conflicting statements regarding
the impact of those actions. In particular, the Psychiatrist's statement
that 100% of the complainant's disability is attributable to the agency's
actions is clearly undercut by his statements that the complainant
had a long history of chronic depression and was suicidal prior to
the agency's actions. Because it is apparent that the complainant had
a serious pre-existing mental condition, and because the evidence of
record is unclear regarding the extent to which the agency's actions
aggravated her condition, the Commission finds that the award of $10,000
was appropriate to compensate the complainant for the harm related to
the agency's actions. Accordingly, because the complainant has not
satisfied any of the criteria necessary for reconsideration, it is the
decision of the Commission to deny her request.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. �1614.405(b).
Therefore, it is the decision of the Commission to DENY the request.
The decision in EEOC Appeal No. 01960727 (August 28, 1997) remains the
Commission's final decision. The agency is ordered to comply with the
order in that decision, as modified below. There is no further right
of administrative appeal on a decision of the Commission on this Request
for Reconsideration.
ORDER
Within thirty (30) days of the date on which this decision becomes final,
the agency is ORDERED to take the following remedial actions:
1. The agency shall pay to the complainant compensatory damages in the
amount of $27,680.00 as follows: $715.00 for past pecuniary damages
(excluding the amount she is owed for health insurance premiums as
indicated in #2 below); $16,965.00 for future pecuniary damages; and
$10,000.00 for non-pecuniary damages.
2. The agency shall determine the amount of leave, if any, that the
complainant received under the Voluntary Leave Program and adjust
accordingly the amount of money owed her for health insurance premiums
as part of her award for past pecuniary damages. The agency shall issue
a separate check for the amount determined along with an explanation as
to how it calculated the amount awarded.
3. The agency is 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.
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.
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).
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:
12-10-99
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________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 This is based on the complainant's assertion that, because the
emotional harm occurred when she was 35 and she would have retired when
she was 65, the �duration of [her] emotional harm related to work will
be 30 years.�