Joyce Koch, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionApr 3, 2000
01975988 (E.E.O.C. Apr. 3, 2000)

01975988

04-03-2000

Joyce Koch, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.


Joyce Koch v. Department of Transportation

01975988

April 3, 2000

Joyce Koch, )

Complainant, )

) Appeal No. 01975988

v. ) Agency No. DOT-93-0159

)

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

(Federal Aviation Administration), )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her equal employment opportunity (EEO) complaint of

unlawful employment discrimination on the basis of sex (female), age (59)

and physical disability (cancer) in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> Complainant

alleges she was discriminated against on the above-stated bases when

she was required by the agency to take remedial training following an

unsatisfactory "over-the-shoulder" evaluation. The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. �1614.405). For the following reasons, the Commission AFFIRMS

the agency's FAD.

BACKGROUND

Complainant, an Air Traffic Control Specialist, GS-2152-12, with

the agency's Federal Aviation Administration, Southern Region, Air

Traffic Division in Louisville, Kentucky, filed a formal complaint

on September 10, 1992, alleging discrimination as referenced above.

The agency accepted and investigated the complaint and issued a FAD, which

found that complainant had not established discrimination on any basis.

On complainant's appeal, the Commission found that complainant established

prima facie cases of age and sex discrimination regarding her placement

in remedial training. See Koch v. Department of Transportation, EEOC

Appeal No. 01945546 (January 16, 1996). The Commission further found that

complainant established a prima facie case of disability discrimination,

as she was regarded by the agency as an individual with a disability,

she was qualified to perform the essential functions of the position in

question and was treated less favorably than was a similarly situated

individual not in her protected classes. The Commission further found

that the agency articulated a legitimate, nondiscriminatory reason for

requiring complainant to undergo training, namely, her unsatisfactory

evaluation in 1992. We then found that while complainant established that

it was more likely than not that a discriminatory reason related to her

sex motivated the responsible officer to place her in remedial training,

she failed to demonstrate that the agency's articulated reason was a

pretext for discrimination based on her age or disability. To remedy the

discrimination based on sex, the Commission ordered the agency to conduct

a supplemental investigation for complainant's claim of compensatory

damages and issue a final decision concerning the relief due complainant.

After conducting a supplemental investigation evaluating the evidence,

the agency issued a FAD finding that complainant failed to establish

entitlement to any pecuniary damages. The FAD, however, found that

complainant had proven that the discrimination which occurred during the

years 1990-1994 caused her emotional harm, and awarded her $16,000.00

in non-pecuniary damages. Complainant thereafter appealed the agency's

compensatory damages determination, contending that due to the nature and

severity of the emotional harm she suffered due to the discrimination

against her, the non-pecuniary award should have been $175,000.00.

The agency responded by restating its initial argument that complainant

failed to meet her burden of proving compensatory damages.

ANALYSIS

Section 102(a) of the 1991 Civil Rights Act authorizes an award

of compensatory damages for all post-Act pecuniary losses, and for

non-pecuniary losses, such as, but not limited to, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life,

injury to character and reputation, and loss of health. In this regard,

the Commission has authority to award such damages in the administrative

process. See West v. Gibson, 527 U.S. 212 (1999). Compensatory damages

do not include back pay, interest on back pay, or any other type of

equitable relief authorized by Title VII. To receive an award of

compensatory damages, a complainant must demonstrate that he 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 reconsid. denied, 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 at

11-12, 14 (July 14, 1992). A complainant is required to provide evidence

that will allow an agency to assess the merits of a request for damages.

See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January

5, 1993).

Pecuniary Damages

Compensatory damages may be awarded for pecuniary losses that are

directly or proximately caused by the agency's discriminatory conduct.

See Compensatory and Punitive Damages Available Under Section 102

of the Civil Rights Act of 1991, EEOC Notice No. 915.002 at 8.

Pecuniary losses are out-of-pocket expenses incurred as a result

of the agency's unlawful action, including job-hunting expenses,

moving expenses, medical expenses, psychiatric expenses, physical

therapy expenses, and other quantifiable out-of-pocket expenses. Id.

Past pecuniary losses are losses incurred prior to the resolution of a

complaint through a finding of discrimination, 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. Complainant has not sought

pecuniary damages in the instant case, and seeks only compensatory damages

for non-pecuniary losses. After a review of the record, we find that

other than fees paid to her attorney, complainant has failed to provide

any objective evidence of pecuniary damages. There are no receipts,

records, bills, canceled checks, or other proof of actual losses and

expenses to substantiate her claim. Thus, the Commission finds that

complainant has not proven an entitlement to pecuniary losses.

Non-Pecuniary Damages

Non-pecuniary damages constitute the sums necessary to compensate

the injured party for actual harm, even where the harm is intangible.

Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225 (D.C. Cir. 1984). The

award should take into account the severity and duration of the harm.

Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652 (July

17, 1995). Non-pecuniary and future pecuniary damages are limited

to an amount of $300,000.00. The Commission notes that for a proper

award of nonpecuniary 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 Ward-Jenkins v. Department of the Interior, EEOC

Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of Chicago,

865 F.2d 827, 848 (7th Cir. 1989)).

Applying the above legal standards, we agree with the portion of the

agency's conclusion finding that complainant submitted sufficient evidence

to establish that she suffered emotional harm as a result of the agency's

discrimination. The record contains several instances where witnesses

attested to the effect the discrimination had on complainant's mental

health. Complainant testified that she experienced digestive problems,

headaches, anxiety, nightmares, sleeplessness, and exhaustion as a result

of the discrimination. While many of complainant's symptoms are related

to her chemotherapy treatments, there is sufficient evidence to establish

that her emotional problems were related, at least in part, to the

discriminatory conduct and hostile work environment. We therefore concur

with the FAD that this evidence establishes complainant's entitlement

to compensatory damages. See Sinott v. Department of Defense, EEOC

Appeal No. 01952872 (September 19, 1996)(stating that an complainant's

own testimony, along with the circumstances of a particular case, can

establish mental or emotional harm).

While there is no dispute that complainant is entitled to non-pecuniary

damages, the parties differ on the appropriate amount necessary to remedy

the discrimination. Complainant contends that at a minimum, she should

receive $175,000.00, and the agency found in its FAD that $16,000.00

properly compensates complainant for the underlying discrimination.

We note that in cases somewhat similar to complainant's, the Commission

has awarded compensatory damages in amounts lower than that awarded

by the FAD in the instant case. Butler v. Department of Agriculture,

EEOC Appeal No. 01971729 (April 15, 1999)($7,500 in non-pecuniary damages

based on complainant's testimony regarding his emotional distress); Hull

v Department of Veteran Affairs, Appeal No. 01951441 (Sept. 18, 1998)

($12,000 in non-pecuniary damages based on complainant's testimony of

emotional distress due to retaliatory harassment); Miller v. United

States Postal Service, EEOC Appeal No. 01956109 (January 23, 1998),

($7,500.00 in non-pecuniary damages where the complainant produced scant

evidence to support his claim); Roundtree v. Department of Agriculture,

EEOC Appeal No. 01941906 (July 7, 1995) ($8,000 in non-pecuniary damages

where medical evidence testimony was provided regarding complainant's

emotional distress, but the majority of complainant's emotional problems

were caused by factors other than the discrimination).

In the present case, the evidence concerning emotional or mental harm

comes from complainant, her children, her sister, and co-workers.

After analyzing the evidence which establishes the stress and emotional

discomfort sustained by complainant and upon consideration of damage

awards reached in comparable cases, the Commission declines to disturb

the FAD's award of non-pecuniary damages in the amount of $16,000.00,

which took into account the severity and duration of the harm done

to complainant by the agency's requirement that she undergo remedial

training. The Commission notes that the testimony of complainant's

children, sister and co-workers establish that she endured approximately

four years of emotional distress due to the agency's discrimination.

The Commission further notes that this amount meets the goals of not

being motivated by passion or prejudice, not being "monstrously excessive"

standing alone, and being consistent with the amounts awarded in similar

cases. See Cygnar, 865 F.2d at 848. In addition, the Commission finds

the non-pecuniary damages reasonable in light of the evidence which

strongly suggests that complainant's depression and related symptoms

were in large part the result of her lymphoma diagnosis and resulting

chemotherapy treatments.

Regarding complainant's contention that she continued to experience the

effects of discrimination until 1996, we agree with the FAD's findings

that any emotional stress complainant continued to experience after she

ended her employment was related to her participation in the EEO process,

and compensatory damages are therefore not recoverable for that period.

See Roundtree, supra. Finally, we note that while complainant has

contended that she would have continued to work for an additional four

(4) years had she not experienced discrimination, we agree with the FAD's

finding that there is insufficient evidence in the record to justify an

award of additional compensatory damages on this basis. In so finding, we

note that complainant's early retirement was not undertaken for medical

reasons but was induced by a cash incentive and was voluntary in nature.

CONCLUSION

Accordingly, based on a thorough review of the record, and for the

foregoing reasons, we AFFIRM the FAD's finding of no pecuniary damages,

and we AFFIRM the FAD's finding regarding the appropriate amount of

non-pecuniary damages.

ORDER (C1092)

To the extent it has not already done so, we hereby ORDER the agency to,

within thirty (30) days of the date on which this decision becomes final,

tender to complainant non-pecuniary compensatory damages in the amount

of $16,000.00.

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 must 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).

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).

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. 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 (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:

April 3, 2000

_______________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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:

_______________ __________________________

Date Equal Employment Assistant

1 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.